Abstract
Just over thirty years ago, in a seminal trilogy of books, Joel Handler and his collaborators made three foundational contributions to the study of public interest lawyers. The first was theoretical, defining public interest law as a positive externality producing legal activity; the second was organizational, conceptualizing public interest law as an industry with multiple sectors that provided legal services; and the third was practical, examining the conditions under which legal rights activities were likely to succeed or fail. Looking back, Handler’s work may be read to support two distinct, and seemingly oppositional, claims: first (optimistically), that public interest lawyers are essential to robust participatory democracy and progressive social change (and thus society should support the field’s expansion), and second (pessimistically), that those same lawyers are nonetheless (at best) doomed to fail and (at worst) destined to be co-opted by the very political system they seek to transform. I call this the Paradox of Public Interest Law. In this Essay, I seek to evaluate the Paradox in light of the dramatically different political, economic, and intellectual context within which the public interest law movement now operates. I trace the arc of the movement’s change, emphasizing the role of ideological, organizational, and tactical complexity in driving new understandings of the meaning and practice of public interest law: from a coherent definition to a set of competing theories; from a nonprofit-centered view of the industry to one that incorporates a greater role for private sector delivery; and from an emphasis on the pursuit of legal rights in court as the central social change tactic to a broader focus on multiple advocacy strategies coordinated across multiple political domains. Evaluating these changes, I suggest that Handler’s optimistic hope for more public interest lawyers has been realized, while some of his pessimism has also been validated—but not entirely for the reasons that he imagined. In the end, Handler’s legacy teaches that the pursuit of legal rights—despite the risks—is still worth the fight.
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