Volume 2018, No.2

PDF linkTable of Contents


PDF link Democracy, Civil Society, and Public Interest Law

By Catherine Albiston


Public interest law organizations historically have been classified as part of civil society, or “the aggregate of non-governmental organizations and institutions that manifest interests and will of citizens.” A strong civil society independent of the government is thought by some to be essential for a healthy democracy. The argument is that social movement organizations that try to shape public opinion or influence legislation also expand grassroots participation and empower citizens in democratic debate. Participation by empowered citizens helps maintain the autonomy of civil society from government and market and strengthens citizens’ ability to shape their world. Public interest law organizations are thus part of a tripartite social structure in which civil society is in critical dialog with the state and the market. The role public interest law organizations do and should play in democratic debate and policy formation is not without controversy, however. Some argue that public interest law organizations further democratic values because litigation is a form of political participation for marginalized groups. Public interest organizations provide a check on government excess, capture, and overreaching. In addition, public interest law organizations use legal strategies to put important but neglected issues on the public agenda. They also help prevent majoritarian oppression of disfavored and disadvantaged groups, such as welfare recipients, LGBT individuals, and religious and ethnic minorities. Others argue, however, that public interest organizations undermine democratic values because public interest litigation allows minority interests that lack electoral accountability to obtain their desired policy outcomes through democratically unaccountable courts. Critics also contend that public interest law organizations have no objective definition of the public interest apart from their specific group’s goals. Some also claim that public interest litigation stirs up unnecessary strife and contention to serve political ends that should be pursued through the normal political process. These disagreements about the legitimacy of public interest law reflect unspoken assumptions about how political differences should be expressed in a democracy, and the appropriate roles of civil society given those assumptions. To speak to this debate, in this article, I bring theories of civil society and democracy into dialog with empirical evidence about what public interest law organizations actually do. In Section I, I situate debates about public interest law organizations within broader theories of democracy and civil society to show how critiques of public interest law organizations rely on a very limited conception of democratic participation. Section I then discusses how public interest law organizations can be understood through participatory theories of democracy. Section II reviews research and empirical data on how public interest law organizations act as civil society organizations. I conclude by discussing the broader implications of these findings for democracy and civil society.

PDF link The Keys to the Kingdom: Judges, Pre-hearing Procedure, and Access to Justice

By Colleen F. Shanahan


This article analyzes pre-hearing procedures using more than 5,000 individual unemployment insurance cases, largely involving self-represented litigants, to investigate how judges and procedure interact to expand or contract access to the hearing room and thus to justice. The data show significant variation in how judges apply these procedures and in parties’ case outcomes. These findings underscore the importance of pre-hearing procedures and judicial decisions that grant or deny access to the courtroom, and the barriers that judicial application of these procedures can present for self-represented litigants. The findings also suggest that changes to judicial behavior—through suggestion, training, or ethical codes—may be insufficient to address this aspect of access to civil justice.

PDF link Studying the “New” Civil Judges

By Anna E. Carpenter et al.



PDF link Simplicity as Justice

By Kathryn A. Sabbeth


This essay argues that the objectives of the simplification project are incomplete and carry potential downsides. It does not take the position that such efforts should be abandoned but recommends that their limits and unintended consequences receive careful scrutiny. Prior commentary has highlighted challenges of simplification from an individual litigant’s standpoint, such as the risk of substandard services and the reality that one-size-fits-all will not fit everyone. This essay turns instead to the efficiency goals themselves and how they affect the administration of justice broadly defined. Part I critiques the goal of cutting costs. Part II critiques the goal of increasing speed. Part III urges that public interest law values figure more prominently in access to justice reform.


PDF link Toward Universal Deportation Defense: An Optimistic View

By Michael Kagan
