Public interest law refers to legal practices undertaken to help poor, marginalized, or under-represented people, or to effect change in social policies in the public interest, on 'not for profit' terms (pro bono publico), often in the fields of civil rights, civil liberties, religious liberty, human rights, women's rights, consumer rights, environmental protection, and so on.
In a celebrated 1905 speech, Louis Brandeis decried the legal profession, complaining that "able lawyers have to a large extent allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people."
In the tradition thus exemplified, a common ethic for public-interest lawyers in a growing number of countries remains "fighting for the little guy".Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, NWU L. Rev. 1251, 1251-1259, 2075-2077(2006)
By jurisdiction
Central and Eastern Europe At the end of the communist period in the early 1990s, the national legal systems of Central and Eastern Europe were still in a formative stage. The most important source of legal authority for the new human rights groups came from outside the region: the Council of Europe, with its European Convention on Human Rights, and the European Court of Human Rights.Edwin Rekosh, Constructing Public Interest Law: Transnational Collaboration and Exchange in Central and Eastern Europe, 13 UCLA J. Int'l L.& For. Aff.55, 80-82
Over time, in the mid-1990s, U.S. experiences became more relevant. The Council of Europe's prerequisite that lawyers use their own country's courts first to seek legal remedies before turning to the European bodies gradually became more than a pro forma exercise, and civil society organizations began to make more effective use of domestic means of adjudication. But by the time local activists were ready to consider the utility of impact litigation, test cases, and other tactics familiar from the U.S. experience, they already understood that their ultimate tactical weapon in any piece of litigation was to use the threat or reality of a supportive decision at the European Court of Human Rights. With this background in mind, it made more sense for the promoters of public interest law in Central and Eastern Europe to talk about "strategic litigation" than about public interest litigation. Using the instrumentality of the European Court of Human Rights effectively required a strategic approach. Not all human rights cases were likely to receive a favorable ruling; a negative ruling could produce more damage to the human rights cause than no ruling at all. The European Court had a rich case law that could provide clues to how a future case might be decided, and there were procedural aspects, such as the requirement to exhaust domestic remedies, to consider.
The core lesson from the U.S. experience for local activists was how courts could be used effectively as a tool for civil society engagement in governance.
Italy The changes to the Italian electoral law from 2014 to 2017 were both "caused by actions born from the bottom (...) the result of a methodical, studied and concerted action. It has been featured by university professors, constitutional and electoral law-makers, parliamentarians and other elected representatives (...), representatives of civil society and ordinary citizens. Their names are, as voters, in more than twenty introductory pleadings (quotations or appeals)", Gabriele Maestri, ORIZZONTI DI TECNICA ELETTORALE: PROBLEMI SUPERATI, IRRISOLTI ED EMERSI ALLA LUCE DELLA SENTENZA N. 35 DEL 2017, Nomos, n. 2/2017. all of them brought pro bono.
China (mainland)
Public interest law (公益法) is an accepted term in China, where the basic institutions supporting the rule of law are still extremely nascent. China does not have a common-law system in which lawyers are expected to play a key role in "making law." Nevertheless, a small but effective community of lawyers has gained acceptance of public interest litigation as a legitimate means of resolving social issues and contributing to a harmonious society, and non-governmental actors have significantly improved the enforcement of rights for migrant workers, women, children and those suffering from environmental degradation, among others. For example, public interest lawyers in China have filed lawsuits in court successfully challenging workplace sexual harassment and the involuntary confinement of healthy people to mental hospitals. See generally R.P. Peerenboom, China's Long March toward Rule of Law (Cambridge University Press, 2002)
Chinese reformers believe that one avenue for speeding the development of public interest law is implementing an associational standing rule by which organizations can instigate lawsuits to protect the interests of its members. Currently, China's Civil Procedure Law is undergoing revision. One of the proposed amendments would create a form of associational standing. In theory, the new law would give domestic NGOs the power to file lawsuits in their own name on behalf of their members, but the proposed amendment has engendered spirited debate and its fate is unclear.
Hong Kong
In Hong Kong public interest law is an emerging field. The chief vehicle for pursuing public interest claims is judicial review. This is the process by which decisions of the government are challenged in the courts. There has been a surge in judicial review cases since 2000. Environmental issuesSee for example, Society for Protection of the Harbour Ltd v Town Planning Board 1 HKLRD 396; Clean Air Foundation Ltd v The Government of the HKSAR HKEC 1356. and minority rightsSee for example, W v Registrar of Marriages HKCFA 39; Vallejos Evangeline Banao v Commissioner of Registration & Anor HKCFA 17. are among the most litigated areas.
One of the pioneers in public interest law in Hong Kong was Pamela Baker. In the late 1980s she litigated a series of landmark courtroom cases challenging the government's treatment of Vietnamese refugees.Robertson, Geoffrey. "Pam Baker", "The Guardian", Saturday 27 April 2002. Retrieved 4 April 2014. In 1995 the Hong Kong Human Rights Monitor was established with the aim of promoting better human rights protection in Hong Kong. Today, the majority of cause lawyers who represent citizens and social groups in human rights and public policy litigation on a consistent basis in Hong Kong are also members of political parties or active participants in social movements outside the courts.Tam, Waikeung. "Political Transition and the Rise of Cause lawyering: The Case of Hong Kong" 3 35 Law & Social Inquiry 663, 664.
In Hong Kong, the Legal Aid Department provides funding to legal services for those who pass the means and merits test. The two Legal Aid Schemes that it operates, namely the Ordinary Legal Aid Scheme (OLAS) and the Supplementary Legal Aid Scheme (SLAS) have facilitated the practice of public interest law through narrowing the resource inequality between economically disadvantaged litigants and the government.Tam, Waikeung. "Political Transition and the Rise of Cause Lawyering: The Case of Hong Kong" 3 35 Law & Social Inquiry 663, 673. However, NGOs and charitable organizations are not eligible to get legal aid.Kong, Karen. "Costs in Public Interest Litigation: Whose Pocket Should be Picked?" 39 HKLJ 767, 768. The NGOs and Charitable organizations contributed to opening of avenues for people who deserved justice but lacked interest to approach courts and helped them in becoming petitioners to get justice.
Apart from legal aid, the Hong Kong Bar Association and The Law Society of Hong Kong jointly provides the Duty Lawyer Scheme which offers free legal representation to eligible defendants on the first day of court appearance. They also run the Free Legal Advice Scheme at their Legal Advice Centres within nine District Offices in Hong Kong with the aim to provide one-off preliminary legal advice to the general public without imposing any means test. The Hong Kong Bar Association and The Law Society of Hong Kong operate their own Bar Free Legal Service Schemearchived and Free Legal Consultation Scheme respectively where enrolled law firms and barristers specializing in different fields volunteer to give consultations on a pro bono basis.Chung, Eugenie. "Why Hong Kong Needs a Pro Bono Clearinghouse" 40 HKLJ 719, 731-732.
In addition, unlike in the United States where NGOs and public interest law groups routinely bring public interest lawsuits on behalf of aggrieved individuals, in-house counsel working in NGOs and charities in Hong Kong are not allowed to directly represent the people these organizations serve.Precht, Robert. "More public interest lawyers can help ease Hong Kong's social tensions, South China Morning Post (17 September 2013). Retrieved 4 April 2014. Some commentators believe that the inability of NGOs to directly represent clients in legal proceedings has dampened the growth of public interest law in Hong Kong.
Law schools in Hong Kong also organize various programs to promote the idea of pro bono legal service to students. Pro bono committees of law firms in Hong Kong also meet on a bimonthly basis in the Hong Kong Legal Community Roundtable, a forum for international law firms to discuss development of pro bono work in Hong Kong and the region.Mayer Brown LLP, "Pro Bono Update" (Spring 2010), page 19.
India
"Public Interest Litigation" or PIL right since its inception in the Indian judicial system, has shown some good examples of safeguarding the rights of the people of India and has strengthened the position of the Supreme Court of India as preeminent guardian of Fundamental Rights enumerated in the Indian Constitution. It was introduced in India around 1979-80 by the Supreme Court judges, Justice V. R. Krishna Iyer along with Justice P. N. Bhagwati. And since then there had been instances when the Courts are keen to decide the matters of public importance without delay, as the case in Shyam Sundar where the court accepted the matter even when the application was made by a letter sent through post.
South Africa South Africa has seen significant public interest litigation throughout its constitutional history. During colonial and apartheid rule, public interest litigation was used as a tool of struggle to resist unjust laws. During the late apartheid period from 1979, three public interest organisations were formed: the Legal Resources Centre, the Centre for Applied Legal Studies and Lawyers for Human Rights. Despite the hostile political environment and a legal system that was inimical to public interest lawyering, they achieved some notable successes opposing forced removals and contesting the system of pass laws and other racist laws. However, even as early as the late 19th century, litigation had been used as a strategy for resistance, especially by early black lawyers, many of whom were among the founders of the African National Congress.
Following the transition to democracy, the Constitution of the Republic of South Africa introduced radical changes to the legal system that have facilitated public interest litigation, including a justiciable Bill of Rights, broad rules of standing and flexible remedial powers for courts. Since 1995, the South African public interest litigation sector has grown, with a number of specialist organisations being established, alongside the older generalist organisations. South Africa has since seen extensive public interest lawyering seeking to give effect to the transformative promise of the Constitution, in particular to enforce socio-economic rights and shore up democratic institutions.
United States