This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.
Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: choosing class representatives, deciding on claims to present, making important tactical decisions, negotiating and ratifying a settlement agreement, and monitoring the settlement decree. The Article also describes how the California lawsuit resulted from, and interacted with, a prisoners’ movement that conducted three mass hunger strikes and garnered national and international attention. Ultimately, the Article uses the California narrative to develop a theory of participatory litigation that infuses political and legal representation with grassroots involvement.
Theories of political and legal representation have oscillated between a mandate form of representation, where the representative directly supports her constituents’ views; an interest form of representation, where the representative is presumed to have the same interests as those she represents; and an accountability form of representation, where constituents or clients delegate broad discretion to the representative subject to periodic voting or another mechanism for removal. Participatory litigation, in contrast, allows for collaborative, collective, and consensus-building interactions between the representative and those she represents. In this model, the representative and the client teach and learn from one another.
Participatory Litigation: A New Framework for Impact Lawyering,
Stanford Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/515
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