INTEREST GROUP LITIGATION

Interest group litigation is sponsored by organizations whose attorneys typically are less interested in specific legal claims than in the constitutional principles that a litigation represents. In contrast, most court cases are pursued for the benefit of the parties directly involved.

In seeking their clients' immediate interests private attorneys sometimes invoke constitutional arguments, but these are incidental to the specific claims of the parties. A sponsored case, however, is often pursued in the name of a litigant even though it is initiated, financed, and supported by an organization seeking its own constitutional goals. interest groups are particularly attracted to cases involving constitutional principles because the judicial decisions emerging from such cases are relatively insulated from subsequent attacks by legislators and other public officials.

It is arguable, of course, that group-supported litigation has always been in existence. For example, following the wagner (national labor relations) act and other new deal legislation, litigation was managed, or otherwise assisted, by labor unions, trade associations, stockholder groups, and other business interests. However, the social and economic ferment of the 1960s and 1970s brought interest group litigation into sharper focus. The civil rights movement and the vietnam conflict not only produced federal legislation but also stimulated new constitutional demands by litigious organizations representing women, welfare recipients, consumers, and persons resisting military service.

The strategies and tactics of interest group litigants are heavily influenced by sociological jurisprudence and legal realism. These philosophies hold that judges, especially Supreme Court Justices, decide controversial cases by choosing among conflicting goals and policies. Such judges do not reach results or write opinions merely by construing statutes, analogizing cases, or analyzing doctrines. Instead, inquiries into judicial decision making have focused on the ways litigation is influenced by the timing of cases and the quality of the constitutional arguments reaching the appellate courts.

Prototypes of interest group litigation are the cases managed by the United States Department of Justice and similar state agencies. Their attorneys select the appropriate government cases to be appealed, and by confessing error or by compromising cases brought against the government, they seek to inhibit the establishment of unfavorable precedents. Also, a federal Legal Service Corporation, independent of the Department of Justice, has become one of the principal sources for funding and supporting litigation aimed at social and economic reform. Consumers, poor people, prisoners, and other low-resource persons have been represented by government-subsidized attorneys in suits against federal and state agencies and private organizations. Besides managing their own cases, government agencies promote private interest group litigation by reimbursing attorneys who participate and intervene for them in administrative proceedings and in court cases involving administrative law.

Although strategically less favorably situated than government attorneys, those representing private interest groups are also in a position to choose cases for appeal and to control the flow of argument in the higher courts. Unlike government litigation, however, the legal requirements for participation in private law suits sometimes prevent an organization from suing on its own, in behalf of its members, or for a similarly situated class of people. This problem has been partially alleviated by Supreme Court decisions liberalizing rules of legal standing to permit lawsuits by environmentalists, taxpayers, and other special interests.

Litigation activity by interest groups is visible in constitutional civil cases as well as in the criminal cause célèbre. In some of these cases attorneys representing factions of social movements vie for litigation sponsorship. The extensive publicity often connected with such cases, the constitutional issues perceived to be intertwined in the conflict, and the opportunities for fund-raising sometimes result in interest group controversies. For example, in several church-state cases attorneys representing different organizations have quarreled over the management of litigation. In the "Scottsboro" case, involving blacks accused of rape, attorneys representing civil rights organizations and those representing a communist-sponsored legal defense organization disagreed about the use of trial publicity.

Ideological differences among lawyers are occasionally reflected in varying conceptions of litigation strategy. Some attorneys emphasize the importance of a complete trial record raising all possible legal issues while others concentrate on the constitutional issues.

An alternative approach to a single test case is a litigation program aimed at accumulating a series of favorable decisions changing constitutional law. An incremental approach emphasizes narrow factual issues and specific claims, and groups with large legal staffs and cooperating attorneys are strategically positioned to conduct litigation in this way. Litigation programs of this kind have achieved changes in the constitutional doctrine governing racial criminal procedure, selective service, religion, and employment.

In politically tinged criminal cases the less provident and unpopular groups are not likely to use incremental litigation; they usually face immediate problems of securing relief for organization leaders and raising money for their causes. For example, in the 1950s when large numbers of cases involving congressional investigations of communism reached the Supreme Court, the lion's share was controlled by lawyers who depended on individual financial contributions to sustain their legal work.

When litigation is controlled by interest groups, constitutional issues are likely to be advanced and developed at the trial level. The "perfecting of a trial record" also gives the adversaries an opportunity to debate broader issues that are likely to be considered on appeal.

The development of a "good" trial record facilitates the preparation of appellate briefs interlaced with statistical and authoritative bibliographical references to social and economic facts supporting particular constitutional arguments. This technique was first used in the early-twentieth-century social legislation cases, and it has been used to illuminate fields ranging from racial equality to abortion. Similar forms of extralegal argument are found in complex court cases involving public utility regulation and other economic matters. (See brandeis brief.)

Besides expanding the scope of their arguments, interest group attorneys have become increasingly adept at coordinating litigation by discouraging the appeal of inconsistent cases or those with less developed records. They have also been successful in getting publication of sympathetic views in legal, scholarly, and popular journals. Networks of attorneys and other observers have also emerged to monitor court decisions and keep central clearinghouses informed about promising court cases.

Sometimes the immediate concerns of the litigants may conflict with those of the sponsoring interest group. A litigant's claim may be compromised or settled. Legal issues advanced by the parties may be formulated so as to avoid the constitutional issues raised by the sponsor. Also, the trial and appellate preparation may be a labor of love, or the work-product of an attorney who jealously guards his professional prerogatives.

A failure to control a litigation does not necessarily mean that an interest group lacks influence. When the issues defined in court are narrow, or the litigant's attorney has failed to develop the case's constitutional implications, an interest group attorney can still participate as amicus curiae (friend of the court). Nowhere has this phenomenon been more visible than in the medical school admission case, regents of the university of california v. bakke (1978). In this case fifty-seven organizations submitted amicus curiae briefs to the Supreme Court. Although some interest group attorneys will refrain from submitting such briefs when a client's attorney adequately has argued the constitutional issues, the filing of such a brief does serve the political function of announcing the group's support for a constitutional argument. Amicus curiae participation usually requires the consent of both parties or the approval of the court, and the influence of either briefs or oral arguments as amicus remains debatable.

Even though interest group litigation is growing, part of the increase is attributable to government legal services and private foundation philanthropy. If government support is curtailed and private foundations are subjected to closer tax scrutiny, individual contributions and voluntary legal services will be called upon to fill the gap. Such a decline in government support seems likely since some judges and political leaders have expressed concern about government-sponsored litigation directed against public officials. They also criticize lawyers who represent causes rather than clients and overburden the judicial process. Other factors affecting the growth of interest group litigation are the strictness of enforcement of traditional restrictions on the scope of law suits (see institutional litigation) and the rules governing the award of attorneys' fees to interest group attorneys.

Finally, no description of interest group litigation would be complete without noting that many highly publicized civil cases and "showcase" criminal trials as well as ordinary law cases are financed and carried forward without the participation of organized interest groups. The constitutional and policy arguments advanced by attorneys in these cases, in many instances, are just as likely to advance the development of legal and constitutional doctrine.

Nathan Hakman
(1986)

(see also: Groups and the Constitution.)

Bibliography

Council for Public Interest Law 1976 Balancing the Scales of Justice: Financing Public Interest Law in America. Washington, D.C.: Council on Public Interest Law.

Hakman, Nathan 1966 Lobbying the Supreme Court: An Appraisal of "Political Science Folklore." Fordham Law Review 35:15–50.

——1972 Political Trials in the Legal Order: A Political Scientist's Perspective. Journal of Public Law 21:73–126.

Kirchheimer, Otto 1961 Political Justice: The Use of Legal Procedure for Political Ends. Princeton, N.J.: Princeton University Press.

Vose, Clement E. 1972 Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900. Lexington, Mass.: D. C. Heath.

Weisbrod, Burton A.; Handler, Joel F., and Komesar, Neil K. 1978 Public Interest Law: An Economical and Institutional Analysis. Berkeley: University of California Press.