Why We Need Plaintiffs' Lawyers
Notes on law, governance, and other matters from Samuel Bagenstos.
A series of recent Trump Administration actions have highlighted for me just how important plaintiffs’ lawyers are to our democratic republican system. I’ve been increasingly talking about the importance of the plaintiffs’ bar in private conversations and public speeches. But I haven’t seen anyone put this on paper yet. So I thought I’d lay out some of my thoughts here. I begin with an executive order President Trump issued yesterday, and then I move on to discuss a broader set of administration actions.
The Disparate Impact Executive Order and Enforcement of Civil Rights Laws
Yesterday, President Trump issued an Executive Order targeting disparate-impact liability under the civil rights laws. “Disparate-impact liability” sounds legalistic, but it’s a pretty straightforward concept: If someone covered by the civil rights laws does something that causes disproportionate harm to members of a particular racial group or a particular sex, and they don’t have a particularly good reason for doing it, that is a form of discrimination prohibited by the law. And it’s unlawful even if a challenger can’t show that the discriminatory effect was the reason the practice was adopted.
The classic example is an employer who requires entry-level hires to pass a pen-and-paper test that isn’t particularly connected to the ability to do the job but that disproportionately screens out members of particular racial groups. Another example is an employer who imposes minimum height and weight requirements that do not connect to job performance but do disproportionately exclude women.
But disparate impact applies well outside of the employment context. So when a city adopts a zoning rule that prevents the construction of multifamily housing, that rule unlawfully discriminates under the Fair Housing Act if it disproportionately keeps minorities from obtaining housing and is not supported by a sufficiently strong reason. Civil rights attorneys have relied on disparate-impact liability to challenge Alabama’s practices that result in disproportionate exposure to raw sewage for it Black residents. And I could provide many more examples.
For decades, conservatives have argued that disparate impact should not be a basis for liability under the civil rights laws. They say that only explicit classifications based on race or sex (“No Blacks or women may apply”) or formally neutral practices that are intended to exclude members of particular racial groups (such as a height and weight requirement an employer adopts precisely because it wants to exclude women) should be understood as discrimination.
But the conservatives have repeatedly lost this argument in the Legislative Branch. After an extensive debate, Congress specifically codified disparate impact liability for employment discrimination in the Civil Rights Act of 1991. Congress specifically included disparate impact liability in the Americans with Disabilities Act of 1990. As the Supreme Court held, when Congress adopted amendments to the Fair Housing Act in 1988 the legislature “accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability.” And, also after an extensive debate, Congress codified the “results test” under the Voting Rights Act–a form of disparate-impact liability–in 1982.
Many conservatives have argued that disparate-impact liability is unconstitutional because it pushes entities to take account of race and sex in their decisionmaking–and to discriminate against whites and men to comply. Those arguments are wrong. And, when it held that disparate-impact liability applies under the Fair Housing Act, the Supreme Court said that, with limitations like those Congress included in the Civil Rights Act of 1991, disparate impact “avoid[ed] … serious constitutional questions.”
Like many other conservatives, Trump strongly opposes disparate-impact liability. But although his party has a majority in Congress, he has made no serious effort to get the Legislative Branch to change the many statutes that prohibit actions with an unjustified disparate impact.
Instead, Trump has decided to kneecap disparate impact administratively. In yesterday’s executive order, he withdrew presidential authorization for the parts of the Department of Justice’s regulations that impose disparate-impact liability under Title VI of the Civil Rights Act of 1964. (Title VI prohibits discrimination by recipients of federal funds; in an unusual provision, the statute specifically requires presidential approval of regulations adopted to implement Title VI.) He also directed “all agencies” to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” And he essentially directed all agencies that enforce laws with disparate-impact provisions to terminate ongoing investigations, litigation, and consent decrees that are based on those provisions.
DOJ’s Civil Rights Division, under Trump’s Assistant Attorney General Harmeet Dhillon, got a head start on implementing this new executive order. Two weeks ago, it terminated the settlement of the raw sewage matter I mentioned above on the (absurd) grounds that protecting Black Alabamians against disproportionate denial of sanitation services constituted illegal “DEI.” And Dhillon in general has transformed the Civil Rights Division into a right-wing grievance machine, turning away from protecting minorities in favor of defending gun rights, challenging actions that fit Trump’s amorphous and expansive concept of “DEI,” and so forth. And she has hollowed out the Division’s capacities by driving out many, many experienced career staff.
Yesterday’s executive order, and the regressive actions of the Civil Rights Division, will no doubt face legal challenges. But the basic legal fact is that a presidential administration has very wide discretion in deciding how to allocate its enforcement resources. (For a good discussion of the limits of that discretion, see this paper issued by Governing for Impact.) If the administration wants to stop enforcing some legal claims so it can allocate its resources to enforcing others, that’s generally the administration’s prerogative.
All of this makes private enforcement of civil rights laws especially important. Trump can stop enforcing disparate impact laws. But he can’t unilaterally wipe them off the statute books. Private plaintiffs’ lawyers can step up and enforce them when the administration backs away. As Republican Administrations since Reagan have periodically pulled back from civil rights enforcement, private lawyers have played the central role in protecting civil rights–and they will have to do the same thing now.
Civil rights law may be the area in which private lawyers are in the best position to fill in the gaps left by the Trump Administration’s abandonment of enforcement. The major civil rights statutes are all privately enforceable–that is, people whose rights are violated can sue to vindicate those rights, even if the federal executive branch does not join them. (That proposition has come under challenge in recent years, with one federal circuit court holding that a key provision of the Voting Rights Act is not privately enforceable.) And Congress’s creation in the Civil Rights Act of 1991 of a damages remedy for employment discrimination has made it possible for lawyers to make a living by representing people whose civil rights have been violated. (When you see efforts in legislatures or courts to limit the availability, scope, or amount of money damages to folks whose rights have been violated, remember that the availability of damages is what makes it possible for lawyers to represent those folks–and to hold bad actors accountable.)
But Trump is abandoning enforcement of key legal protections in a number of areas where the law does not explicitly authorize private enforcement. The National Labor Relations Act, the Occupational Safety and Health Act, and the privacy protections of the Health Insurance Portability and Accountability Act, to name just a few of these statutes, have no (or no meaningful) private right of action. As the Supreme Court has become more conservative over the past several decades, it has been increasingly reticent to read laws that don’t explicitly provide a right to sue as nonetheless implicitly allowing private enforcement. And even when Congress has explicitly authorized injured parties to sue, the Court has employed an unduly broad understanding of the constitutional “case or controversy” requirement to override Congress’s determinations of what sorts of injuries are sufficient to enable a person to bring a case in federal court.
If you care about the vindication of civil rights–indeed, if you care more generally about holding institutions to account for the harms they cause to people in our community–you need a robust and independent plaintiffs’ bar. Whether the Executive Branch will enforce the laws, and which laws it will enforce, changes with the political seasons. To ensure that people can actually receive the benefits of the protections that Congress has granted them, they need the ability to go directly to court to vindicate their rights, without being left to the whims or interests of the incumbent presidential administration.
Now, a lot of people on the progressive side have been skeptical of judges and courts. I share a lot of that skepticism. And I think it’s particularly warranted when courts are asked to substitute their constitutional views for those of Congress. Where the political branches have deliberated and adopted a statute, the very strong presumption in our democratic system should be that courts will enforce it. That is, in part, why I so strongly disagree with Supreme Court decisions (like those I mention above) that use an unduly broad understanding of Article III of the Constitution to override Congress’s determinations of what injuries are sufficient to enable an individual to vindicate statutory rights in federal court.
But here, enforcing federal statutes is exactly what I’m calling on the courts to do. When Congress passes a law giving rights and protections to individuals, and the President signs it, the basic principles of a democratic republic should prevent a new President, no less than a court, from unilaterally depriving those rights and protections of meaning. If a statute is imprudent or inconsistent with current understandings of good policy, Congress should change the statute through the ordinary process. But so long as a law protecting individuals remains on the books, it should be enforced. And we need a strong plaintiffs’ bar to ensure that enforcement occurs.
The Bar–and Particularly the Plaintiffs’ Bar–as a Key Independent Civil Society Institution
Conservatives have long targeted the plaintiffs’ bar for attacks. They have done so in part for reasons suggested in the previous part of this post: When conservative presidential administrations seek to cut back on enforcement of civil rights and other laws they don’t like, plaintiffs’ lawyers can fill the gap. And, indeed, we’ve seen some conservative commentators and judges argue that, at least in some contexts, private enforcement of federal statutes infringes on the executive power granted to the President by Article II of the Constitution. The Supreme Court nodded towards these arguments in its recent TransUnion case limiting Congress’s power to create private rights of action. I disagree with these arguments, but they indicate the degree to which conservatives believe that the President should control what federal laws get enforced and when.
But there is a more elemental reason why conservatives have attacked the plaintiffs’ bar: Plaintiffs’ lawyers, collectively, form a base of power that can–and often is inclined to–challenge conservative policies and narratives in public discourse and the political system. And that is a function that is particularly important now. We have seen the Trump Administration systematically attack each of the independent civil-society institutions that might form a base of opposition to its efforts to take on more and more power. Through funding cuts, vindictive investigations, Executive Orders that are the equivalent of bills of attainder, and a variety of other actions, Trump has targeted the media, universities, nonprofit organizations, and the legal profession. Although those entities have shown some signs of fighting back in recent days, many have found themselves too dependent on government grants, government regulation, or other government action to resist capitulation. Universities and nonprofits depend heavily on government grants. Media organizations depend on a favorable regulatory climate. And so forth.
Even lawyers have been subject to significant pressure. Many large corporate law firms, in particular, believed they must give in to Trump or risk losing the ability to serve their clients in major transactional work if the Executive Branch treated them as persona non grata. (Not all firms made this choice, but many of the largest and most prominent ones did.) And because public interest legal organizations themselves depend on contributions from corporate law firms, foundations, and government grants of their own, all of the Trump Administration’s pressure to avoid serving “equity,” protecting immigrants, or otherwise challenging administration policies flows down to the public interest bar as well.
Private plaintiffs’ law firms do not have the same problem (at least to the same extent). Rather than depending on government grants, or favorable treatment for their clients by Executive Branch agencies, private lawyers who represent plaintiffs make their living by going to court–by convincing judges and juries that a corporation, government entity, or other defendant did something wrong to their client and should pay. Plaintiffs’ lawyers tend to get paid either a portion of the damages awarded to their clients, a fee award that the losing defendant is required by law to pay, or both. This system gives private plaintiffs’ lawyers a great degree of independence that enables them to stand strong against pressure to conform to the orthodoxy of the incumbent administration.
To be sure, the increasing conservatism of judges–particularly in the federal courts–presents a problem for plaintiffs’ lawyers, as it does for everyone who might wish to stand up against the new administration. But the power of conservative federal judges over the livelihood of plaintiffs’ lawyers is significantly limited in two ways. First, these lawyers can bring many of their cases in state courts, which have not invariably been overtaken by conservatives in the same way as have the federal courts. (Just yesterday, for example, the governor in my own purple state of Michigan made an appointment that gave a 6-1 majority to Democratic appointees on our Supreme Court; these judges are not all notable progressives, but none is hostile to private enforcement of legal rights.) Second, thanks to the Seventh Amendment and equivalent state constitutional provisions, plaintiffs’ lawyers will often be making their case not to politically appointed judges but to jurors drawn from the community, who retain a sense of outrage when powerful institutions commit wrongs without accountability. These factors will often enable the private plaintiffs’ bar to keep going, and remain an independent source of power, even in the face of hostile political actors.
So we need the plaintiffs’ bar, now more than ever. I have long encouraged students to consider a plaintiffs’-side practice. And I believe it is especially important that they do so now, both to fill in the gaps left by the current administration’s enforcement retrenchment, and to maintain a crucial civil society institution.