Impact litigation

The first page of the U.S. Supreme Court judgement in Brown v. Board of Education, the "mother of all impact litigation".^[1]

Impact litigation or strategic litigation is the practice of bringing lawsuits intended to effect societal change.^[2][3] Impact litigation cases may be class action lawsuits or individual claims with broader significance,^[1] and may rely on statutory law arguments or on constitutional claims.^[4] Such litigation has been widely and successfully used to influence public policy, especially by left-leaning groups, and often attracts significant media attention.^[2]

History

In the late nineteenth and early twentieth centuries, the American Civil Liberties Union and National Association for the Advancement of Colored People (at times though its Legal Defense Fund) both pursued legal action to advance and protect civil rights in the U.S. The ACLU followed a primarily "defensive" strategy, fighting individual violations of rights when they were identified. The NAACP, in contrast, developed a more coordinated plan to actively file suits to challenge discrimination, known as "affirmative" or "strategic" litigation.^[5] The NAACP's model became the pattern for "impact litigation" strategies, which applied similar tactics in contexts other than racial discrimination.^[4]

Important early impact litigation cases included Brown v. Board of Education and Roe v. Wade.^[1] Brown, a 1954 U.S. school desegregation decision, was carefully prepared by Thurgood Marshall and other NAACP lawyers so that the eventual Supreme Court ruling invalidated official racial discrimination throughout the U.S. government. Many cases since then have closely imitated it, in the course of seeking greater protections for other disadvantaged groups.^[1]

Scope

Impact litigation has played a major role in the development of American desegregation, abortion, and tobacco regulation policy.^[6]

Since the 1980s, impact litigation has been used to seek reform in the reform of U.S. child welfare law, following earlier work which involved the courts in jail and mental hospital reforms and in school desegregation.^[7]

Strategic impact litigation has also been used in Nigeria, among other things to push for convictions of perpetrators of police brutality and to defeat legal attacks on the freedom of the press.^[3]

In a few jurisdictions where attorneys are prohibited from bringing class action lawsuits, citizens have filed "grassroots impact litigation" cases and successfully represented their own claims.^[8]

Debate

Impact litigation has been criticized by legal scholars and politicians on the bases of judicial legitimacy and competence.

The legitimacy argument holds that, in countries with a constitutional separation of powers, societal changes are to be enacted by democratically elected bodies and are outside the purview of individual judges. The competence argument claims that, independent of theoretical concerns about the role of the judiciary, there are institutional limitations on the amount and quality of information that can be made available in a court proceeding which make the courts poorly prepared to handle complex policy issues; it also points out that courts are limited in the scope of their responses, relative to legislative bodies.^[9] These debates overlap with those concerning so-called "judicial activism".^[7]

See also

• Amicus curiae
• Public interest law

References

1. Schuck 2006, p. 104.
2. Schuck 2006, p. 103.
3. Okafor 2006, p. 81.
4. Tushnet 2008, p. 383.
5. Tushnet 2008, p. 380.
6. Mason, Leavitt & Chaffee 2013, p. 547.
7. Lowry 1986, p. 260.
8. Freeman 1991.
9. Schuck 2006, pp. 107-111.

Sources

• Freeman, Andrew D.; Farris, Juli E. (1991). "Grassroots Impact Litigation: Mass Filing of Small Claims". USFL Rev. 26: 261–282.
• Lowry, Marcia (1986). "Derring-Do in the 1980s: Child Welfare Impact Litigation After the Warren Years". Family Law Quarterly. American Bar Association. 20 (2): 255–280.
• Mason, D.J.; Leavitt, J.K.; Chaffee, M.W. (2013). Policy and Politics in Nursing and Healthcare. Elsevier - Health Sciences Division. ISBN 978-0-323-24241-7.
• Okafor, O.C. (2006). Legitimizing Human Rights NGOs: Lessons from Nigeria. Africa World Press. ISBN 978-1-59221-286-6.
• Schuck, P.H. (2006). Meditations of a Militant Moderate: Cool Views on Hot Topics. G - Reference, Information and Interdisciplinary Subjects Series. Rowman & Littlefield. ISBN 978-0-7425-3961-7.
• Tushnet, Mark (2008). "The Rights Revolution in the Twentieth Century". In Grossberg, M.; Tomlins, C. The Cambridge History of Law in America. Cambridge histories online. Cambridge University Press. ISBN 978-0-521-80307-6.