Author: Marsha Mansfield and Louise G. Trubek
The article identifies how changes in the legal landscape, including funding for legal services, legal needs, and technology, provide both barriers and opportunities to rethink legal practice for ordinary people. Law school graduates can use different tools and roles to develop innovations that improve the efficiency and effectiveness of their legal work. However, how law students are taught must evolve as well for the innovations to succeed. The article first discusses what types of legal services can best assist ordinary people in the current context using as examples experiences of Wisconsin law clinics and centers for legal assistance as well as national programs. The article explores new roles created by the new context including expanding cross-discipline collaborative practices, measuring and evaluating outcomes, and providing strategic facilitation. Finally the article addresses how law schools, through expanded clinics and innovative curricula, can train students to envision productive careers by learning to apply these new roles in the new context.
Author: Louise G. Trubek
This article discusses the history and current status of public interest law. It examines the seminal work of the 1970s that established public interest law and contrasts the early period with the complexities and challenges today. It opens with a discussion of the key aspects of enterprise in the 1970s: creation of a new institutional form, the new role of public interest lawyer, the business plan for financing the firms and the economic, institutional regulatory justification. That the project has succeeded and public interest law has become a permanent part of the U.S. legal system. Looking at where we are today however there are two unfinished projects: inequality in society and the limits of the regulatory process. Lawyers today are redesigning the 1970s concepts to meet the challenges. They are engaging in collaborative practices, utilizing new roles as collaborators and facilitators, locating additional compensation and participating in public interest endeavors around the world.
Author: Louise G. Trubek, Thomas R. Oliver, Chih-Ming Liang, Matthew Mokrohisky and Toby Christopher Campbell
Integrated networks of doctors, patients, and hospitals are a major technique of cancer governance. They enable stakeholders to pool information and resources and achieve systematic learning. Two groups, the childhood cancer group in the US and the Europe Against Cancer initiative, are examples of network governance. Both demonstrate learning processes, production of new data and dissemination, financial support and engagement of all takeholders. Why have these integrated networks been successful while so many others have failed? Because both are embedded within regulatory frameworks that ensure that networks work properly. Integrated networks are vulnerable when the frameworks fail to provide the necessary accountability, fairness and participation.
Author: Scott Cummings and Louise G. Trubek
Public interest law has become increasingly globalized in the post-Cold War era, incorporated in national legal systems across the developing world, and deployed in transnational activist campaigns advancing social justice causes. This essay - the introduction to a symposium on public interest law across borders - examines the structural factors shaping the global trajectory of public interest law and offers a preliminary appraisal of its emerging global role. In Part I, we trace the historical movement of public interest law from an insular American project toward a more globalized set of practices and concepts. We suggest two reasons for this shift. The first is the ascendance of the Rule-of-Law movement, sponsored by international financial institutions and donor agencies, which has promoted public interest law around the world as a crucial component of good governance built upon a foundation of rights enforcement and political accountability. Against this backdrop, local activists, particularly in post-authoritarian countries, have turned to public interest law as a way to achieve the promise of new democratic orders while accessing crucial funding support. Second, the institutional framework of global governance has drawn public interest law into the contest over the impact of open markets and the power of human rights at the supranational level. Transnational activist networks have mobilized public interest law in efforts to hold international finance and trade institutions accountable for their distributional impacts, challenge the deregulation of global markets through multi-level advocacy efforts, and leverage the power of the human rights system to strengthen domestic social justice movements and build transnational solidarity. Part II explores the implications of these trends, suggesting that they point toward two evolving conceptions of public interest law: as a global institution and a technique of global governance. With respect to public interest law's institutionalization in developing countries, we outline the factors shaping its distinctively hybrid form, which incorporates elements imported by global sponsors, while building upon indigenous traditions and adapting to opportunities afforded by national structures. As a tool of global governance, we suggest that public interest law is associated with a broad range of problem solving practices targeted to the transnational context. We conclude by offering a provisional map of the new terrain of this transnational advocacy, highlighting the global arenas in which it operates, the strategies it deploys, and the networks it constructs.
Author: Louise G. Trubek
The problems of the uninsured, cost escalation, and improving quality in United States health care are once again on the front pages. There is a sense that these problems can be resolved despite the magnitude of the issues. This optimism is related to new techniques and approaches to governance. This new approach is called "new governance" and includes devolution, public-private partnerships, stakeholder collaboratives, network creation, coordinated date collection, benchmarking and monitoring. This paper examines the way new governance tools are being incorporated in resolving health care problems. The first section discusses stakeholder collaborations, the arenas in which leading actors are developing ways of dealing with three health care conundrums: how to embed technology, how to eliminate racial and ethnic disparities, and how to achieve universal coverage. The paper then describes how the effort to resolve these problem areas moves from traditional regulation to a different set of strategies. The first shift is in the strategy for embedding technology from command and control to standard setting and local collaborations. The second example is the shift in eliminating racial and ethnic disparities from anti-discrimination litigation to quality assurance tools. The final example is the shift to envision universal coverage from a centralized single system to linked state experimentation. The paper concludes with a discussion of how regulation and governance must be rethought to allow these emerging practices to resolve the health care conundrums.
Author: David M. Trubek and Louise G. Trubek
New approaches to regulation have emerged to deal with inadequacies of traditional command and control systems. Such "new governance" mechanisms are designed to increase flexibility, improve participation, foster experimentation and deliberation, and accommodate regulation by multiple levels of government. In many cases, these mechanisms co-exist with conventional forms of regulation. As new forms of governance emerge in arenas regulated by conventional legal processes, a wide range of configurations is possible. The purpose of this Article is to provide a preliminary mapping of such relationships, using examples drawn from the European Union and the United States. When traditional law and new governance are yoked together in a hybrid form, we might speak of a real transformation in the law. In other cases, systems of law and new governance may exist in parallel but not fuse together. Where both systems co-exist but do not fuse, there are numerous possible configurations and relationships among them. One might launch the other, as when formal law is used to mandate a new governance approach. Or, they might operate independently yet both may have an effect on the same policy domain. Finally, in some areas one system may take over the field, either because new governance methods replace traditional law altogether, or because opposition to innovation halts efforts to employ new approaches.
Author: Louise Trubek
A contemporary health care reform is underway, associated with a set of reformers who are active nationally and locally at the doctor/patient level, the health care institution level, and the policy level. This reformist energy is associated with processes in law and policy that can be called new governance and soft law. These processes are different from previous understandings of how health care can be governed, such as self-regulation, market forces, and new deal command and control regulation. These processes are taking hold and are visible in the public and private sectors and through out the health care industry. The paper discusses the relationship between resolving health care conundrums, such as universal access, eliminating racial and ethnic disparities and embedding information technology, and the new processes. There are six innovations that derive from the interaction between new governance, soft law, and reform processes: alternative sites for deliberation, consumer and patient participation, different roles for government, redesigned organizational forms, and new tools for regulation and resolving disputes. Each of these innovations is discussed in the context of the health care reform stories. The paper discusses the variety of interactions between new governance and the older systems and how they coexist. It describes three ways in which the older processes are maintained, or could be maintained while utilizing the newer more effective processes. One type is the dynamic interaction between the old and new, a second is orchestrating a multi-pronged strategy that incorporates new governance techniques with more traditional incentives. The third interaction is the integration of traditional legal values, such as transparency, inclusion, and equity into the new processes.
Author: Louise G. Trubek
The article discusses contemporary legal practice and how new understandings of how the law can emerge from empirical information about current approaches to legal issues. It presents the argument that a new public interest law is emerging to deal with current legal problems in a contemporary context. The new public interest law requires a rethinking of the relationship between public interest goals and mainstream practice. Legal education is an integral part of constructing legal practices, and is now confronted with the challenge of changing is pedagogy to reflect the new practice of law. The article describes how a new framework is emerging, and how some law schools are beginning to revise their curriculum to reflect this new framework. It closes with a discussion of the barriers to embed these innovative projects more generally in law schools.
Author: Louise G. Trubek and Maya Das
Racial and ethnic disparities in health care outcomes are well-documented. Efforts to reduce these inequities have not succeeded in achieving a substantial reduction. The disease management model, which emerged during the era of managed care, is gaining support as an alternative approach to reducing disparities. Reformist institutions including community health centers and physician-led managed care organizations are already adopting a patient-centered delivery system that embodies the disease management approach. These reformist institutions illustrate the potential for redesigned health care governance that can embed a quality/equity norm. This redesigned governance includes revising the relationship between levels of government, using horizontal networks for learning and policymaking, and linking public and private institutions and regulations. This article suggests that the timing is propitious for a development of alliances among stakeholders to implement this new design. Throughout the development of this new system, advocates must participate to ensure a decrease in inequities.
Author: Louise G. Trubek
The article places the emerging role of the public interest lawyer in the context of the broader changes taking place in American governance. This new role is illuminated through a case study based on the experience of healthcare lawyers in the regulatory framework of Wisconsin. The analysis proceeds in four steps. The initial section outlines the classic model of public interest law in the context of the post-New Deal era. It then lays out three broad "movement" changes in governance: a movement of authority downward from the federal government to the state and local level; an outward movement of responsibility for designing, implementing and enforcing social programs from government to market and non-governmental actors; and a movement outside the regulatory box, away from the traditional regulatory framework. The analysis then describes how these changes in governance have encouraged an emerging model of public interest advocacy which emphasizes collaboration, linked local action, and a diffusion of roles and practices. A central section of the paper describes a case study of how state-based consumer advocates responded to managed care. They represented the interests of consumers to ensure quality services and assuage the fears of consumers in the managed care context. The consumer advocates used the techniques of creating state-based collaboratives and sharing expertise with health care professionals. They also participated in networks across states to link the local actions. They also moved away from traditional regulatory approaches in favor of endorsing mechanisms that influenced internal structures of managed care organizations and used market data-driven systems. The article concludes with a discussion of the risks of new governance. There is a legitimate concern that these new strategies will be detrimental to public interest clients and society.
Author: Louise G. Trubek
The article proposes that an "incremental" state-based/public-private approach to expanding access for health care coverage is underway. Two major shifts are encouraging this approach: the movement down of public programs through devolution to the states, and movement out toward increased reliance on private institutions to satisfy public needs. Wisconsin's BadgerCare, a program to cover working low-income families, is used as an example of how the interaction of welfare reform with workplace health coverage gaps created a state impetus towards expanded coverage. That impetus combined with the flexible use SCHIP funding has allowed states to pursue a viable strategy of expanded coverage. The move to public-private coordination has allowed states to develop private-public systems to provide the coverage. These systems employ mechanisms that not only provide coverage but also link across states through intermeshing a knowledge base and actors. The mechanisms include local collaborations, community-based delivery systems, networks, and outcomes processes. The article concludes with a discussion of three challenges to the incremental approach: linking public and private plans, meeting workplace and workforce needs. and integrating the safety net into the mainstream health care financing system.
Author: Louise G. Trubek
The movement towards privatization has created a sea change in the practice of public interest law. This change has given rise to legitimate concerns regarding transparency and participation in the changed regulatory environment Focus has moved from advocacy on behalf of disadvantaged client groups to a greater variety and broader array of practice models. "Old Wine in New Bottles" examines this issue through the lens of a public interest law firm in Wisconsin, using its experience in welfare reform, telecommunications, and health care. An analysis of this experience reveal that transparency and participation can be maintained in a privatized environment by adapting lawyering strategies to the altered context.
Author: Louise G. Trubek and Jennifer J. Farnham
Author: Louise G. Trubek
Lawyering for poor people is in flux. The Legal Services Corporation ("LSC"), the primary provider of legal services for the poor, is beleaguered. While the number of people living in poverty has risen, the Corporation's capacity has been reduced. Congress is expected to cut back on funding and impose even more stringent restrictions on the ability of LSC-funded lawyers to represent the needs of the poor. Yet there are hopeful signs in what otherwise is a discouraging picture. Some lawyers and non-lawyer advocates are demonstrating surprising energy and innovation in advocating for poor people. New forms of practice are emerging that have great promise. They show that effective advocacy may be possible even in a time when traditional approaches are under siege. This Essay describes three areas in which advocates have developed new models of practice and new forms of advocacy. It examines ways that lawyers and clients are collaborating to create more effective advocacy for battered women, low-income entrepreneurs and nonprofit community-based organizations that serve the poor. It describes how, why and where the new practices operate and analyzes the roots of the new approaches, showing that they can be traced to changes in lawyering theory and new visions of the lawyer- client relationship. The Essay assesses whether these models can be sustained and generalized, concluding that although the new approaches are modest in scope, local in operation and tentative in aspirations, they show that creative lawyering for poor people is still possible. The innovative spirit they demonstrate reflects the ongoing search by lawyers and clients to find ways for the American legal profession to ameliorate inequality. The Essay closes by suggesting ways we might be able to encourage the proliferation of similar locally-based practices.
Author: Louise G. Trubek and Jennifer J. Farnham
Multidisciplinary practices (MDPs) are a big item in legal news. State and national professional associations as well as scholars are preoccupied with the challenges to traditional legal practice. The push to revise legal institutions to allow expansion of lawyer-nonlawyer practices stems from the rapid growth and importance of large business consultancies. MDPs, however, are also an important development in reenvisioning legal practice for low and moderate income people.
We are in a period of experimentation on how to provide assistance to people in dealing with law and legal institutions. There is a flowering of academic writing, conferences, and practitioner accounts discussing various types of strategies. One strategy involves providing limited legal services and relying on the client as his or her own advocate. Examples of this are unbundling, do-it-yourself systems, advice hotlines and community legal education. A contrasting strategy is to increase impact and individual litigation using lawyers in a conventional law office where the lawyer is the dominant authority, perhaps assisted by nonlawyer support personnel. The recent tobacco and handgun suits are examples of impact litigation. Programs that provide pro bono lawyers for individual cases are an example of efforts to expand representation.
Multidisciplinary practice for low and moderate income people is another strategy. The practices emphasize working closely with other professions, lay advocates and community agencies to meet a variety of needs and overcome barriers. This type of practice recognizes the centrality of nonlegal as well as legal needs and the barriers clients face in accessing legal services. The concept of social workers, social service agencies and lawyers working together is a longstanding but contested aspiration of many interested in the positive use of law to help people of low income. The creation of Legal Aid in the early twentieth century, for example, incorporated a struggle between social workers and reform-minded lawyers. There were disagreements about where lawyers should be situated: the settlement house versus the independent law office. There were also conflicts about strategy: separation of social values from legal representation versus an integrated approach.
In current times many practices are again seeking to work in an interdisciplinary manner. The relationship to the client and among collaborators ranges from short-term service provision to a deeply integrated relationship. These relationships are characterized by frequent, ongoing interaction, commitment to the relationship and trust. Such MDPs have a clearly defined client group and a vision of how to meet the needs of that group. We dub these practices "social justice collaboratives." An analysis of these social justice collaboratives is timely because of the debate within the bar about revising professional norms to deal with MDPs. Bar proposals may have dramatic effects on ordinary people. The positive could be changing rules and customs to expand choice and access for people seeking legal services. [ Negative effects of the maelstrom of activity could also occur. There could be a reduction in services by creating new procedures to enforce existing rules that restrict access, such as renewed efforts at policing the unauthorized practice of law boundary.
Our interest in the relationship between social justice collaboratives and the current debate on MDP motivated us to study the way social justice collaboratives develop, provide services and interact with the institutions of the legal profession. We began our research by looking across all kinds of collaboration in legal services for low and moderate income clients and at other research projects and networks about collaboration. We decided to focus on areas where we noted similar practices with a shared vision in geographically diverse locations. We identified the following sectors: at-risk families with children, domestic violence and community economic development.
For each sector, we describe a specific collaborative practice, discuss the theoretical background for the sector and describe the specific legal work performed by the collaboratives. We follow with a discussion of the funding, networks and practical aspects of the collaboration. We conclude with a discussion of the ethics concerns of the collaborations in each sector. The discussion of the specific sectors is followed by an analysis of the common elements that constitute the innovations in these collaborative practices. We discuss how the expert knowledge of the collaborators is combined in producing a different relationship to each other, the client and society. The lawyers in the practices are both professionals and collaborators, which allows them to share traditional lawyer values while adapting their skills, values and status to the collaborative model. The practices are also distinctive in their commitment to the client group which led them to collaborate with others outside their profession. The practices display a breaking-down of traditional boundaries of public/private, progressive/conservative and civil/criminal. Finally, the collaborators display an interest in quality as a method of overcoming traditional barriers to collaboration. We conclude with a proposal for how the framework for legal professionalism and professional education can be modified to encourage and support social justice collaboratives. This proposal advocates for progressive lawyers to engage in the debate on the future of the legal profession and collaborative practice.
Author: Louise G. Trubek
Despite draconian cuts and restrictions in Federal funding for the Legal Services Corporation, the conversations conducted and papers written as part of the 1997 Arthur Liman Colloquium paradoxically highlight the continuing vitality of poverty lawyering. The paradox can be explained by the participation of committed law students and new lawyers who, while lamenting the difficulties of the Legal Services Corporation, see opportunities for productive lawyering. Practicing poverty law requires living in a set of contradictions. Ruth Buchanan describes these contradictions: the issue of disempowerment at the level of both of institutions and individuals, the need to understand the law's double role as a tool for change and reproduction of hierarchies, and the possibility of change and understanding of limits. She points out that each generation of poverty lawyers must deal with these contradictions in the context of its own time.
Law school can be central to fostering the ability of lawyers to live and practice in these contradictions. My experiences at the Yale Law School, class of 1960, cultivated and nourished my youthful passion for social change. I received an award for my legal aid work while in law school, validating my choice to public service. Speeches by public interest alumni discussing contemporary legal actions and courses taught by progressive professors expounding theoretical insights inspired me to envision a public interest law career. Committed law school classmates assisted me in my efforts to create public interest practices in New Haven, Connecticut and Madison, Wisconsin.
These positive experiences were essential for me as I struggled against a sense of marginality stemming from my uniqueness as a woman from a working-class background; the high status of my corporate practitioners within the legal culture contributed to my unease. Law school enabled me to become a poverty law practitioner by providing public service opportunities, supportive intellectual mentors, and long-term networks that have maintained my commitment to lawyering for the disadvantaged.
Law school taught the poverty lawyers of my generation how to practice in the context of the 1960s and 1970s. We seized on the opportunities of our time: successful constitutional litigation, national government funding for legal services, and federal legislation guaranteeing income and services for the poor. We created practices that relied on federal funding, emphasized case work based on constitutional and federal legislative protections, and maintained traditional lawyer's roles and skills.
Law students today must be trained and supported in law school to create practices that enable them to cope with the conditions of poverty law practices in the 1990s context: devolution of poverty programs to the states and localities, unstable lawyer-client roles, and reduced and fragmented funding for poverty lawyering. The interaction of two phenomenon, information on new strategies for lawyering for poor people and opportunities for post-law school fellowships, is creating the supportive law school experience necessary for committed students. Law schools, by teaching about poverty theory and doctrine, demonstrating new practices, and encouraging fellowship programs, are providing guidance and support on how to practice. Students, therefore, are optimistic that practicing poverty law is a realistic goal for their professional life.
Author: Louise G. Trubek
Currently, the United States is debating new systems of health care financing and delivery. This process may result in an unexpected social policy success: universal coverage. But universal coverage may be paired with a strange new managed competition structure. This scenario prompts the question: will universal coverage come at too high a cost? In the last decade, Wisconsin has previewed two managed competition programs. Advocates, government administrators and providers have adapted surprisingly well and have made managed competition an ongoing process that gives consumers a voice. More particularly, mechanisms have been invented and utilized to adjust and modify the new system to local conditions. Although the programs are new, and admittedly contain many flaws, the Wisconsin experience may be worth emulating. This Article has a two-part theme. After briefly explaining managed competition, it describes the experience of Wisconsin advocates who strive to obtain quality health care for their clients within Wisconsin's new managed competition structure. The Article then discusses how national and state legislation and institutional development can encourage advocacy based on the lessons learned from that experience. Now is the time for us to reflect on how to train, compensate and coordinate advocates for quality health care and to consider new strategies and institutions which will protect consumers and allow for their participation.
Author: Louise G. Trubek
The ideology and institutions underlying lawyering for social justice are in a transitional period characterized by academic debate and innovative practices. Diminished funding for lawyers for subordinated people and challenges to the lawyer-client hierarchy are contributing to the uncertainty; out of uncertainty, however, can come innovation.
The academic debate centers on the ways in which law, lawyers, and legal institutions affect the situations of subordinated people. At the heart of the controversy are challenges to the canonical model for social change lawyering that has been dominant since the 1960s: the Legal Services Corporation (LSC) model. The LSC model provides lawyer-based representation of the poor in a neighborhood office staffed by salaried lawyers and paralegals, organized as a hierarchy among staff members and between staff and clients, and regulated and funded by a federal agency.
The challenges come from two directions: internal critique and external analysis. The internal critique questions the efficacy of lawyering in LSC programs; the external analysis draws on scholarly writings that create a new theoretical lawyering model for subordinated people. The LSC internal critique targets lawyer proficiency and political efficacy. The proficiency problem is attributed either to a lack of lawyer competency or to institutional demands. The political efficacy critique states that narrow, case-by-case lawyering cannot effectively improve the overall situation of poor people, contrasting the LSC's current individual approach with its early approach, which emphasized community organizing and systemic litigation.
The external analysis expresses a different vision of advocacy on behalf of subordinated people. Sometimes called "critical lawyering," this theory addresses two major concerns: improving lawyer-client relationships in order more effectively to serve subordinated groups, and rethinking the relationship between legal work and political mobilization. Critical lawyering aims to provide subordinated people with greater access to legal representation and to promote more social change. While providing practical suggestions for reform, critical lawyering theorizes social change lawyering, drawing heavily on feminist and critical race jurisprudence. Critical lawyering theory softens the distinction between individual client work and "impact" work on test cases, class actions, and legislation. It views client work as transformative in and of itself, lessening the tension between advocating on behalf of individual clients and pursuing transformative goals. Collaborative lawyer-client relationships, and working with social movements and client groups are central tenets of critical lawyering. Social change lawyers are also uncomfortable with traditional hierarchical workplace relationships and seek to transform the workplace into a more collegial site.
The internal critique and external analysis have different institutional goals. The aim of the internal critique is to revitalize the LSC model so it can continue as the primary location for social change lawyering. Deep funding cuts and restrictions in federal tax support for LSC reflect a growing belief in fiscal austerity, welfare reform, and hostility to lawyers. Cutbacks and radical restructuring of welfare programs are devastating for legal services lawyers. Having premised their legitimacy on government's obligations to subordinated people, and having built institutions and careers around government funding, they now find both threatened. One veteran legal services attorney describes his decision to leave and set up a private practice as "pretty easy." The internal critics are deeply concerned about maintaining LSC in light of funding cutbacks and the defection of experienced lawyers.
Although the internal critics realize that rethinking LSC programs is essential in obtaining revived congressional support, there is substantial disagreement on how to revitalize the LSC programs. The disagreements in the literature relate to the potential for social change through individual case representation, the significance of mobilization, and the importance of quality assurances. There is little discussion of rethinking relationships with clients, creating and maintaining workplace collegiality, or collaborating with community groups using nonlawyer models.
On the other hand, the lawyers and scholars associated with the external analysis are exploring alternative institutions for social change lawyering. Because prospects for state funding are dimming, opportunities for government employment are declining, and our ideas about the best approach to lawyering for subordinated groups are changing, alternative practices for social change lawyering should be identified and encouraged. Recent studies have identified alternative practices, including social justice law firms, law school clinical programs, pro bono models, and client nonprofits, at work in several different geographic locations. These social change practices display an alternative ideological and institutional vision for practicing law for subordinated people. These practices illustrate the viability of models that use diverse funding sources and depend upon a commitment to collaborative lawyer-client relationships. Alternative practices both create and reflect ideological and institutional frameworks for social justice. Ironically, these same elements also create conflicts that may jeopardize the survival of these practices. The success of such practices is crucial as they assist clients, redeem lawyers, and expand the realm of social change lawyering.
This Article examines two models of alternative practices now functioning in Wisconsin. Both models may be termed "embedded": they are in the private sector, provide services for subordinated people, evolve from a local community and legal culture, and are client funded. The first model is the "client nonprofit": nonprofit organizations that serve specific client groups and integrate lawyering into the operation of these organizations' mission. The second model is the "social justice law firm": fee-for-service firms that incorporate lawyering for causes and disadvantaged groups within their overall practice. I describe the operation of these practices, analyze their key elements, and compare their effectiveness. I then discuss how the elements of nonlawyer control, diverse funding, and new lawyer recruitment, which characterize these practices, produce conflict within the profession. I conclude with a challenge to the bar and to law schools to encourage cooperative coexistence among social change lawyers and tolerance of experimentation.