Public interest law

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Public interest law is a somewhat elastic term referring to legal practices that are undertaken on a not for profit basis. A unifying theme in public interest law is using law to help poor and marginalized people and to change social policies.

United States[edit]

Brandeis (center) in his office 1916.

“Public interest law” is a term that became widely adopted in the United States during and after the social turmoil of the 1960s. It built on a tradition exemplified by Louis Brandeis, who before becoming a U.S. Supreme Court justice incorporated advocacy for the interests of the general public into his legal practice. In a celebrated 1905 speech, Brandeis decried the legal profession, complaining that “able lawyers have to a large extent allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people.” [1] In the late 1960s and 1970s, large numbers of American law school graduates began to seek “relevance” in their work—wishing to have an impact on the social issues that were so visibly and hotly debated within American society at that time. They defined themselves as public interest lawyers in order to distinguish themselves from the “corporate adjuncts” referred to by Brandeis.[2]

Public interest law does not describe a body of law or a legal field; the term was adopted to describe whom the public interest lawyers were representing, rather than what matters they would work on. Instead of representing powerful economic interests, they chose to be advocates for otherwise underrepresented individuals. Consequently, a significant current in public interest lawyering has always emphasized the need to provide legal services to those living in poverty. The term has grown, however, to encompass a broader range of activities of lawyers and non-lawyers working toward a multitude of objectives, including civil rights, civil liberties, women’s rights, consumer rights, environmental protection, and so on. Nevertheless, a common denominator for public interest lawyers in the United States and in a growing number of countries remains the ethic of “fighting for the little guy”—that is, representing the underrepresented and vulnerable segments of society.[3]

Public interest law is institutionalized in the United States(USA). Nongovernmental organizations (NGOs) that work to promote and protect human rights using the U.S. legal system, or fight to protect the environment, or advocate on behalf of consumers, call themselves public interest law organizations. A large community of lawyers practices public interest law in the form of providing legal aid free of charge to those who cannot afford to pay for it. Clinical legal education, which is well established in the United States, provides opportunities for law students to do practical legal work on basic legal matters as well as more complex public interest issues, such as women’s rights, anti-discrimination law, constitutional rights, and environmental protection, among others. Some law schools have public interest law centers, which advise law students interested in pursuing public interest law careers. Pro bono programs at bar associations and law firms provide opportunities for commercial lawyers to donate time to public interest law activities.[3]

Summing up the movement's history in the United States, Stanford University Law Professor Deborah Rhode writes:"Public interest lawyers have saved lives, protected fundamental rights, established crucial principles, transformed institutions, and ensured essential benefits for those who need them most....In virtually every major American social reform movement of the last half century, [public interest]lawyers have played an important role."[4]

United Kingdom[edit]

In law, public interest is a defence against certain lawsuits (for instance some libel suits in the United Kingdom) and an exemption from certain laws or regulations (for instance freedom of information laws in the UK). Also, judges in common law systems can make judgements on the grounds of public policy, a related term.

Central and Eastern Europe[edit]

At the end of the communist period in the early 1990s, the national legal systems of Central and Eastern Europe were still in a formative stage. The most important source of legal authority for the new human rights groups came from outside the region: the Council of Europe, with its European Convention on Human Rights, and the European Court of Human Rights.[5]

Over time, in the mid-1990s, U.S. experiences became more relevant. The Council of Europe's prerequisite that lawyers use their own country's courts first to seek legal remedies before turning to the European bodies gradually became more than a pro forma exercise, and civil society organizations began to make more effective use of domestic means of adjudication. But by the time local activists were ready to consider the utility of impact litigation, test cases, and other tactics familiar from the U.S. experience, they already understood that their ultimate tactical weapon in any piece of litigation was to use the threat or reality of a supportive decision at the European Court of Human Rights. With this background in mind, it made more sense for the promoters of public interest law in Central and Eastern Europe to talk about "strategic litigation" than about public interest litigation. Using the instrumentality of the European Court of Human Rights effectively required a strategic approach. Not all human rights cases were likely to receive a favorable ruling; a negative ruling could produce more damage to the human rights cause than no ruling at all. The European Court had a rich case law that could provide clues to how a future case might be decided, and there were procedural aspects, such as the requirement to exhaust domestic remedies, to consider.

The core lesson from the U.S. experience for local activists was how courts could be used effectively as a tool for civil society engagement in governance.[5]

China[edit]

Public interest lawOI (公益法, pronounced Gong Yi Fa) is an accepted term in China, where the basic institutions supporting the rule of law are still extremely nascent. China does not have a common-law system in which lawyers are expected to play a key role in “making law.” Nevertheless, a small but effective community of lawyers has gained acceptance of public interest litigation as a legitimate means of resolving social issues and contributing to a harmonious society, and non-governmental actors have had a significant impact on improving the enforcement of rights for migrant workers, women, children and those suffering from environmental degradation, among others. For example, public interest lawyers in China have filed lawsuits in court successfully challenging workplace sexual harassment and the involuntary commitment of healthy people to mental hospitals.[6]

Chinese reformers believe that one avenue for speeding the development of public interest law is implementing an associational standing rule by which organizations can instigate lawsuits to protect the interests of its members. Currently, China’s Civil Procedure Law is undergoing revision. One of the proposed amendments would create a form of associational standing. In theory, the new law would give domestic NGOs the power to file lawsuits in their own name on behalf of their members, but the proposed amendment has engendered spirited debate and its fate is unclear.[7]

Hong Kong[edit]

In Hong Kong public interest law is an emerging field. The chief vehicle for pursuing public interest claims is judicial review. This is the process by which decisions of the government are challenged in the courts. There has been a surge in judicial review cases since 2000. Environmental issues[8] and minority rights[9] are among the most litigated areas.

One of the pioneers in public interest law in Hong Kong was Pamela Baker. In the late 1980s she litigated a series of landmark courtroom cases challenging the government’s treatment of Vietnamese refugees.[10] In 1995 the Hong Kong Human Rights Monitor was established with the aim of promoting better human rights protection in Hong Kong.[11] Today, the majority of cause lawyers who represent citizens and social groups in human rights and public policy litigation on a consistent basis in Hong Kong are also members of political parties or active participants in social movements outside the courts.[12]

In Hong Kong, the Legal Aid Department provides funding to legal services for those who pass the means and merits test.[13] The two Legal Aid Schemes that it operates, namely the Ordinary Legal Aid Scheme (OLAS) and the Supplementary Legal Aid Scheme (SLAS) have facilitated the practice of public interest law through narrowing the resource inequality between economically disadvantaged litigants and the government.[14] However, NGOs and charities are ineligible to legal aid.[15] This has prompted cases in which these NGOs and charities invited persons who lacked particular interests in the litigation but qualified for legal aid to stand as the applicant.[15]

Apart from legal aid, the Hong Kong Bar Association and The Law Society of Hong Kong jointly provides the Duty Lawyer Scheme which offers free legal representation to eligible defendants on the first day of court appearance.[16] They also run the Free Legal Advice Scheme at their Legal Advice Centres within nine District Offices in Hong Kong with the aim to provide one-off preliminary legal advice to the general public without imposing any means test.[17] The Hong Kong Bar Association and The Law Society of Hong Kong operate their own Bar Free Legal Service Scheme[18] and Free Legal Consultation Scheme[19] respectively where enrolled law firms and barristers specializing in different fields volunteer to give consultations on a pro bono basis.[20]

In addition, unlike in the United States where NGOs and public interest law groups routinely bring public interest lawsuits on behalf of aggrieved individuals, in-house counsel working in NGOs and charities in Hong Kong are not allowed to directly represent the people these organizations serve.[21] Some commentators believe that the inability of NGOs to directly represent clients in legal proceedings has dampened the growth of public interest law in Hong Kong.

Law schools in Hong Kong also organize various programs to promote the idea of pro bono legal service to students.[22] Pro bono committees of law firms in Hong Kong also meet on a bimonthly basis in the Hong Kong Legal Community Roundtable, a forum for international law firms to discuss development of pro bono work in Hong Kong and the region.[23]

India[edit]

The format of PIL ispresent in India.

References[edit]

  1. ^ Edwin Rekosh, et al.,ed. "Pursuing the Public Interest, A Handbook for Legal Professionals and Activists" (http://www.pilnet.org/component/docman/doc_download/35-pursuing-the-public-interest-a-handbook-for-legal.html); Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. Rev. 1, 13-14(2004)
  2. ^ Rekosh, supra; See also Joel F. Handler, Ellen Jane Hollingsworth & Howard S. Erlanger, Lawyers and the Pursuit of Legal Rights 24-39 (1978); Note, The New Public Interest lawyers, 79 Yale L.J. 1069, 1069-70 (1970)
  3. ^ a b Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, NWU L. Rev. 1251, 1251-1259, 2075-2077(2006)
  4. ^ Deborah L.Rhode, Public Interest Law: the Movement and Midlife, 60 Stan.L.Rev. 1, 13-14 (2004)
  5. ^ a b Edwin Rekosh, Constructing Public Interest Law: Transnational Collaboration and Exchange in Central and Eastern Europe, 13 UCLA J. Int'l L.& For. Aff.55, 80-82
  6. ^ Congressional-Executive Commission on China, 2011 Annual Report, Parts II and III (October 10, 2011), available at http://www.cecc.gov/pages/annualRpt/annualRpt11/AR2011final.pdf; see generally R.P. Peerenboom, China's Long March toward Rule of Law (Cambridge University Press, 2002)
  7. ^ "Draft limits scale of class-action lawsuits," China Daily, April 24, 2012, available at http://usa.chinadaily.com.cn/china/2012-04/25/content_15131945.htm
  8. ^ See for example, Society for Protection of the Harbour Ltd v Town Planning Board [2004] 1 HKLRD 396; Clean Air Foundation Ltd v The Government of the HKSAR [2007] HKEC 1356.
  9. ^ See for example, W v Registrar of Marriages [2013] HKCFA 39; Vallejos Evangeline Banao v Commissioner of Registration & Anor [2013] HKCFA 17.
  10. ^ Robertson, Geoffrey. "Pam Baker", "The Guardian", Saturday 27 April 2002. Retrieved 4 April 2014.
  11. ^ Hong Kong Human Rights Monitor Official Website
  12. ^ Tam, Waikeung. "Political Transition and the Rise of Cause Lawyering: The Case of Hong Kong" 3 [2010] 35 Law & Social Inquiry 663, 664.
  13. ^ http://www.lad.gov.hk/eng/las/overview.html
  14. ^ Tam, Waikeung. "Political Transition and the Rise of Cause Lawyering: The Case of Hong Kong" 3 [2010] 35 Law & Social Inquiry 663, 673.
  15. ^ a b Kong, Karen. "Costs in Public Interest Litigation: Whose Pocket Should be Picked?" 39 HKLJ 767, 768.
  16. ^ http://www.dutylawyer.org.hk/en/duty/duty.asp
  17. ^ http://www.dutylawyer.org.hk/en/free/free.asp
  18. ^ http://www.hkba.org/the-bar/free-legal-service/
  19. ^ http://www.choosehklawyer.org/en/search_fl_start.asp
  20. ^ Chung, Eugenie. "Why Hong Kong Needs a Pro Bono Clearinghouse" 40 [2010] HKLJ 719, 731-732.
  21. ^ Precht, Robert. [http://www.scmp.com/comment/insight-opinion/article/1310978/more-public-interest-lawyers-can-help-ease-hong-kongs-social "More public interest lawyers can help ease Hong Kong's social tensions", "South China Morning Post" (17 September 2013). Retrieved 4 April 2014.
  22. ^ http://www.ke.hku.hk/eng/highlights/2010/legal
  23. ^ Mayer Brown LLP, "Pro Bono Update" (Spring 2010), page 19.

Bibliography[edit]

Note: This Bibliography is adapted from "Public Interest Law Practice: A Selective Bibliography,"a project of the Public Interest Law Committee at Rutgers School of Law, Newark, compiled by Paul Axel-Lute.

DEFINING PUBLIC INTEREST LAW

  • Howard M. Erichson, Doing Good, Doing Well, 57 Vand. L. Rev. 2087-2125 (2004).
  • Jeremy Rabkin, Public Interest Law: Is it Law in the "Public Interest"?, 8 Harv. J. L. & Pub. Pol'y 341-347 (1985).
  • Ann Southworth, Conservative Lawyers and the Contest over the Meaning of "Public Interest Law", 52 UCLA L. Rev. 1223-1278 (2005).
  • Patricia M. Wald, Whose Public Interest Is It Anyway: Advice for Altruistic Young Lawyers, 47 Me. L. Rev. 3-33 (1995).

HISTORY OF THE PUBLIC INTEREST LAW MOVEMENT

  • Nan Aron, Liberty and Justice for All : Public Interest Law in the 1980s and Beyond (Westview Press, 1989, 166 p) KF390.5.P78 A96 1989.
  • Balancing the Scales of Justice: Financing Public Interest Law in America: A Report by the Council for Public Interest Law (1976, 361 p. & appendices) KF 299.P8C6 1976 Includes A History of Public Interest Law, at 17-76, and The World of Public Interest Law Today, at 77-161.
  • Bringing Justice to the People: The Story of the Freedom-Based Public Interest Law Movement / edited by Lee Edwards (Heritage Books, 2004, 218 p.) KF 390.5.P78 B74.
  • Gordon Harrison & Sanford M. Jaffe, The Public Interest Law Firm; New Voices For New Constituencies (Ford Foundation, 1973, 40 p.) KF299.P8 H37 Edited version of article originally published at 58 ABA J. 459-467 (1972).
  • Sanford M. Jaffe, Public Interest Law : Five Years Later (American Bar Association, Special Committee on Public Interest Practice, 1976, 52 p.) KF299.P8 J3.
  • F. Raymond Marks, The Lawyer, The Public, and Professional Responsibility (American Bar Foundation, 1972, 305 p.) KF 299.P8M3
  • Felice Batlan, The Ladies' Health Protective Association: Lay Lawyers and Urban Cause Lawyering, 41 Akron L. Rev. 701-732 (2008).
  • Edward Berlin, Anthony Z. Roisman, & Gladys Kessler, Public Interest Law, 38 Geo. Wash. L. Rev. 674-693 (1970).
  • Susan D. Carle, Re-Envisioning Models for Pro Bono Lawyering: Some Historical Reflections, 9 Am. U. J. Gender Soc. Pol'y & L. 81-96 (2001)
  • Richard Frank, The Public Interest Lawyer, 7 J. Int'l L. & Econ. 180-186 (1972).
  • Charles R. Halpern & John M. Cunningham, Reflections on the New Public Interest Law: Theory and Practice at the Center for Law and Social Policy, 59 Geo. L. J. 1095-1126 (1971). Includes Appendix B: Nader v. Volpe: A Case Study, at 1122-26.
  • Judith Kilpatrick, Race Expectations: Arkansas African-American Attorneys (1865- 1950), 9 Am. U. J. Gender Soc. Pol'y & L. 63-79 (2001).
  • Ralph Nader, Keynote Address, 40 San Diego L. Rev. 7-18 (2003) (part of symposium, Summit: Taking the Offensive).
  • Karen O'Connor & Lee Epstein, Rebalancing the Scales of Justice: Assessment of Public Interest Law. 7 Harv. J. L. & Pub. Pol'y 483-505 (1984). Includes history of both liberal & conservative public interest law groups.
  • David P. Riley, Challenge of the New Lawyers: Public Interest and Private Clients, 38 Geo. Wash. L. Rev. 546-587 (1970).
  • Francis B. Stevens & John L. Maxey, John L. II, Representing the Unrepresented: A Decennial Report on Public-Interest Litigation in Mississippi, 44 Miss. L. J. 333-390 (1973).

GLOBALIZATION OF PUBLIC INTEREST LAW