LITIGANTS in some cases taken before the courts

n some cases taken before the
courts, the litigants are individuals, whereas in other cases one or
more of the litigants may be a government agency, a corporation, a union,
an interest group, or a university.
What motivates a person or group
to take a grievance to court? In criminal cases the answer to this question is
relatively simple. A state or federal
criminal statute has allegedly been violated, and the government prosecutes
the party charged with violating the
statute. In civil cases the answer is not
quite so easy. Although some persons
readily take their grievances to court,
many others avoid this route because
of the time and expense involved.

 Political scientist Phillip Cooper
points out that judges are called upon
to resolve two kinds of disputes:
private law cases and public law
controversies. Private law disputes are
those in which one private citizen or
organization sues another. In public
law controversies, a citizen or organization contends that a government
agency or official has violated a right
established by a constitution or
statute. In Hard Judicial Choices,
Cooper writes that “legal actions,
whether public law or private law
contests, may either be policy oriented
or compensatory.”
A classic example of private, or
ordinary, compensation-oriented litigation is when a person injured in an
automobile accident sues the driver of
the other car in an effort to win monetary damages as compensation for
medical expenses incurred. 

This type
of litigation is personal and is not
aimed at changing governmental or
business policies.
Some private law cases, however,
are policy oriented or political in nature. Personal injury suits and product
liability suits may appear on the surface to be simply compensatory in nature but may also be used to change
the manufacturing or business practices of the private firms being sued. 

A case litigated in North Carolina
provides a good example. The case
began in 1993 after a five-year-old girl
got stuck on the drain of a wading
pool after another child had removed
the drain cover. Such a powerful suction was created that, before she could
be rescued, the drain had sucked out
most of her large and small intestines.
As a result, the girl will have to spend
about 11 hours per day attached to intravenous feeding tubes for the rest of
her life. In 1997 a jury awarded the
girl’s family $25 million in compensatory damages and, before the jury was
to have considered punitive damages,
the drain manufacturer and two other
defendants settled the case for $30.9
million. The plaintiff’s attorney said 

that the lawsuit revealed similar incidents in other areas of the country and
presented a stark example of something industry insiders knew but
others did not. Not only did the family win its lawsuit, but the North Carolina legislature also passed a law requiring multiple drains to prevent
such injuries in the future.
Most political or policy-oriented
lawsuits, however, are public law controversies. That is, they are suits
brought against the government primarily to stop allegedly illegal policies
or practices. They may also seek damages or some other specific form of relief.

 A case decided by the U.S.
Supreme Court, Lucas v. South Carolina Coastal Council, provides a good example. South Carolina’s Beachfront
Management Act forbade David H.
Lucas from building single-family
houses on two beachfront lots he
owned. A South Carolina trial court
ruled that Lucas was entitled to be
compensated for his loss. The South
Carolina Supreme Court reversed the
trial court decision, however, and
Lucas appealed to the U.S. Supreme

The High Court ruled in
Lucas’s favor, saying that if a property
owner is denied all economically viable
use of his or her property, a taking has
occurred and the Constitution requires
that he or she get compensation.
Political or policy-oriented litigation is more prevalent in the appellate
courts than in the trial courts and is
most common in the U.S. Supreme

Ordinary compensatory litigation is often terminated early in the
judicial process because the litigants
find it more profitable to settle their
dispute or accept the verdict of a
trial court. However, litigants in political cases generally do little to advance
their policy goals by gaining victories
at the lower levels of the judiciary.
Instead, they prefer the more widespread publicity that is attached to a
decision by an appellate tribunal.
Pursuing cases in the appellate courts
is expensive. Therefore, many lawsuits
that reach this level are supported in
one way or another by interest groups.

Although interest groups are
probably better known for
their attempts to influence
legislative and executive branch
decisions, they also pursue their
policy goals in the courts. Some
groups have found the judicial branch
to be more receptive to their efforts
than either of the other two branches
of government. Interest groups that
do not have the economic resources
to mount an intensive lobbying effort
in Congress or a state legislature may
find it much easier to hire a lawyer and
find some constitutional or statutory
provision upon which to base a court
case. Likewise, a small group with few
registered voters among its members
may lack the political clout to exert
much influence on legislators and executive branch officials. Large memberships and political clout are not
prerequisites for filing suits in the

Interest groups may also turn to
the courts because they find the judicial branch more sympathetic to their
policy goals than the other two
branches. Throughout the 1960s interest groups with liberal policy goals
fared especially well in the federal
courts. In addition, the public interest
law firm concept gained prominence
during this period. The public interest
law firms pursue cases that serve the
public interest in general — including
cases in the areas of consumer rights,
employment discrimination, occupational safety, civil liberties,

 and environmental concerns.
In the 1970s and 1980s conservative interest groups turned to the federal courts more frequently than they
had before. This was in part a reaction
to the successes of liberal interest
groups. It was also due to the increasingly favorable forum that the federal
courts provided for conservative
Interest group involvement in the
judicial process may take several
different forms depending upon
the goals of the particular group.
However, two principal tactics stand
out: involvement in test cases
and presentation of information
before the courts through “amicus
curiae” (Latin, meaning “friend of the
court”) briefs.

Test Cases
Because the judiciary engages in policy making only by rendering decisions
in specific cases, one tactic of interest
groups is to make sure that a case
appropriate for obtaining its policy
goals is brought before the court.
In some instances this means that the
interest group will initiate and sponsor the case by providing all the
necessary resources. The best-known
example of this type of sponsorship
is Brown v. Board of Education (1954).

 In that case, although the suit against
the Board of Education of Topeka,
Kansas, was filed by the parents
of Linda Brown, the National Association for the Advancement of Colored
People (NAACP) supplied the legal
help and money necessary to pursue
the case all the way to the Supreme
Court. Thurgood Marshall, who later
became a U.S. Supreme Court justice,
argued the suit on behalf of the plaintiff and the NAACP. As a result, the
NAACP gained a victory through the
Supreme Court’s decision that segregation in the public schools violates
the equal protection clause of the
Fourteenth Amendment.

Interest groups may also provide
assistance in a case initiated by someone else, but which nonetheless raises
issues of importance to the group. A
good example of this situation may be
found in a freedom of religion case,
Wisconsin v. Yoder. That case was initiated by the state of Wisconsin when it
filed criminal complaints charging Jonas Yoder and others with failure to
send their children to school until the
age of 16 as required by state law.
Yoder and the others, members of the
Amish faith, believed that education
beyond the eighth grade led to the
breakdown of the values they cherished and to “worldly influences on
their children.”

 An organization known as the National Committee for Amish Religious
Freedom (NCARF) came to the defense of Yoder and the others. Following a decision against the Amish in the
trial court, the NCARF appealed to a
Wisconsin circuit court, which upheld
the trial court’s decision. An appeal
was made to the Wisconsin Supreme
Court, which ruled in favor of the
Amish, saying that the compulsory
school attendance law violated the free
exercise of religion clause of the First
Amendment. Wisconsin then appealed to the U.S. Supreme Court,
which on May 15, 1972, sustained the
religious objection that the NCARF
had raised to the compulsory school
attendance laws. 

As these examples illustrate, interest group involvement in litigation has
focused on cases concerning major
constitutional issues that have reached
the Supreme Court. Because only a
small percentage of cases ever reaches
the nation’s highest court, however,
most of the work of interest group
lawyers deals with more routine work
at the lower levels of the judiciary.

 Instead of fashioning major test cases for the appellate courts, these attorneys may simply be required to deal
with the legal problems of their
groups’ clientele.
During the civil rights movement
in the 1950s and 1960s, for example,
public interest lawyers not only litigated
major civil rights questions; they also
defended African Americans and civil
rights workers who ran into difficulties with the local authorities. These
interest group attorneys,

 then, performed many of the functions of a
specialized legal aid society: They provided legal representation to those involved in an important movement for
social change. Furthermore, they performed the important function of
drawing attention to the plight of
African Americans by keeping cases
before the courts.

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