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PROBLEMS OF CIVIL PROCEDURE IN PUBLIC INTEREST LITIGATION AND THE NEED FOR A NEW PROCEDURALISATION – James Fowkes• Introduction Public interest litigation has been a site of considerable innovation in the last forty or fifty years. A public interest case may concern no more than the sort of constitutional violation one might find in private litigation, just raised by a publicly-spirited party rather than an injured one concerned with personal relief. It may also represent a sizeable departure from the traditional. As we shall see, in a variety of jurisdictions, recent decades have seen courts engage in public interest litigation on a distinctly non-traditional scale and in distinctly non-traditional ways, exercising lengthy and open-ended jurisdiction over issues and shaping procedure and remedies as they go. In the US, school desegregation and prison reform were prominent targets of this sort of judicial engagement. In India, it has become a regular feature of PIL (as the Indian public interest litigation model is known), which has spread to other countries in South Asia. In recent years, it has become increasingly common in Latin American countries like Colombia, Brazil and Argentina. South African courts have generally been more cautious, but they are increasingly confronting the sorts of issues that have prompted this sort of extensive, non-traditional judicial engagement in other jurisdictions and have made some tentative moves in the direction of the steps other jurisdictions have taken, with many in the academic community urging them to do more. This paper seeks to advance the argument that, in this public interest context, too little attention has been paid to civil procedure as a positive, sympathetic project. The attention is invariably on matters seen as more substantive – rights interpretation, remedies – and or on the negative project of resisting formal proceduralisms as barriers to doing justice. Procedure is either not the focus, or it is actively the enemy, the shackle from which to break free. The rights-driven boldness of the Warren Court, with its regular willingness to circumvent established procedures, has become paradigmatic for progressive scholars around the world; the subsequent Burger Court is sometimes thought of as cutting back on its achievements via a retreat towards technicality and formalism, notably in the procedural context.1 Form is supposed to give way to substance; worrying about form, accordingly, is at best pettifogging, a worst a betrayal.

• JSD Candidate, Yale Law School -‐ [email protected]. My thanks to Aparna Chandra, Mrinal Satish, Michaela Hailbronner and the participants at the YLS JSD colloquium for comments on an earlier draft of this paper. 1 See e.g. Alexander Bickel Politics and the Warren Court (1965); Abram Chayes ‘The Role of the Judge in Public Law Litigation’ 89 Harvard Law Review 1281, 1304-‐05 (1976)

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This paper argues against this grain. One can believe that substance should trump form without wanting to sideline procedure, because procedure (at its best) is concerned with protecting issues of substance. Good procedural rules serve substantive ends like fairness (real and perceived), transparency, predictability, and judicial accountability. They are also the most obvious way in which a court keeps control of a case and provide the basis for moving it along to its resolution. These are all areas of concern for public interest litigation around the world, especially in its more expansive forms, and in my view this is no coincidence – the problems arise because too little has been done to provide new procedural rules for the cases where the traditional ones become inadequate to the task. Accordingly, it is important to ask whether we might be able to do more to proceduralise public interest litigation without crippling its ability to respond to problems in non-traditional ways where that is needed. Of course, the answer might be that we cannot: that if we want the courts to do these expansive things, we must accept a more flexible, free-form way of doing things and accept an erosion of the things that traditional, more formal, procedures protect. But before we give up on these things as casualties of the overriding imperative to pursue social justice, the question should be asked. The question is of importance both to those thinking about reforming the systems of countries in which very expansive and non-traditional forms of action are already the norm, and by those thinking about borrowing from these systems. I reached but did not fully answer the question in an earlier paper arguing for the adoption in South Africa of a modified version of the Indian PIL as a promising way to expand access to courts.2 Addressing the concerns raised by these novel new public interest mechanisms is importantly a problem in civil procedure. An illustration In the Mazibuko decision, the Court recognized two exceptions to the rule against admitting new evidence in the Constitutional Court, which it normally firmly applies.3 It accepted evidence that went to show how the government was constantly adjusting its service delivery activities, on the grounds that this was relevant to progressive realization, and it noted an exception for new evidence relevant to designing relief in socio-economic rights cases.4 On one view, these exceptions show a concern that addressing real policies and their outcomes means staying up-to-date about a government’s ongoing responses and, when it comes to designing a remedy, ensuring that the court is aware of changes on the ground so that the remedy is effective. Their recognition is a praise-worthy example of a willingness to depart from the traditional appellate model and

2 James Fowkes ‘How to Open the Doors of the Court – Lessons on Access to Justice from Indian PIL’ South African Journal on Human Rights (forthcoming, 2011) 3 E.g. Nokotyana v Ekurhuleni Municipality 2010 (4) BCLR 312 (CC), paras 13-‐14 and cases there cited 4 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), paras 39-‐41


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respond flexibly to the needs of problem-solving. On the other hand, does their recognition mean that new facts establishing or expanding a socio-economic violation are not admissible but new facts showing such a violation is being responded to or that it requires a different sort of remedy are? What if the new facts on the government’s fresh response disclosed, in the view of the applicants, that a fresh violation was occurring – would facts to show that violation be admissible, or not? If we are really committed to tackling the real problem, shouldn’t all these sorts of new facts be admissible? But if so, what happens to the appellate structure, which the Court usually defends and which exists for non-arbitrary reasons? Does its erosion, for example, produce what some thought happened in Mazibuko: a factual case initially sufficient to get a judge to pronounce a violation is ultimately dismissed once several years of subsequent government responses are taken into account? Is this, as the Constitutional Court said, a salutary example of how public interest cases can deepen participatory democracy, collaboration and accountability?5 Or is it worrying, since it means that the basis for the result becomes court-mediated, collaborative government response rather than law, and no legal precedent of the original violation goes down in the books? Mazibuko begs all these questions. As we shall see, they are precisely the sorts of questions that are raised by public interest cases generally because of the challenges to the traditional model that they pose and the breaks with it that they prompt. Answers are needed, and as will be evident, at least an important part of the answers is about procedure. The answers are of obvious practical importance, but their importance is also strategic. In a recent article, Jackie Dugard and Malcolm Langford do some post-mortem work on Mazibuko. They frame this as a critique of the 2008 Atlantic Philanthropies report on public interest strategy and contend that the factors identified in that report as ‘essential to ensuring that public interest litigation succeeds and achieves maximum social change’ were met in Mazibuko yet the case lost.6 Making that argument as a critique of the report depends on treating that report’s factors as claiming to be ‘sufficient’ conditions to ‘predict…judicial outcomes’,7 whereas the report was only presenting them as essential but not necessarily sufficient conditions for the success of litigation considered particularly from the point of view of its ability to produce social change.8 But if we 5 Mazibuko, paras 71, 160, 163 6 Jackie Dugard & Malcolm Langford ‘Art or Science? Synthesising lessons from public interest litigation and the dangers of legal determinism’ 27 SAJHR 39 (2011), discussing Gilbert Marcus & Steven Budlender A Strategic Evaluation of Public Interest Litigation in South Africa (2008), available at http://www.atlanticphilanthropies.org/learning/strategic-‐evaluation-‐public-‐interest-‐litigation-‐south-‐africa. The quoted text is from the Marcus & Budlender report, see at p. 6 7 Dugard & Langford (above n __) 54 8 The seven factors are described as ‘factors that should generally be present in order to ensure that public interest litigation succeeds, and achieves maximum social change’ – Marcus & Budlender (above n __) 6. Dugard & Langford do note, in characterizing the report, that the authors ‘recognize that not all

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set that aside, Dugard & Langford’s enquiry into why Mazibuko lost is interesting for my purposes. In particular, they consider the possibility that the case was ‘simply legally flawed from the outset’ but note that the Constitutional court re-interpreted and re-characterised the case as framed by the applicant. An important aspect of that characterisation seems to have been the way the Court framed the case as one of a diligent government doing a difficult task assiduously, correcting mistakes if it made them, meaning there was no need for the Court to intervene. If that is so, then the respondents’ success in getting the Court to admit the new evidence relating to the government’s ongoing efforts, despite the standard bar on new evidence, was likely crucial to the outcome. I raise the possibly large significance of this argument in Mazibuko because it is an argument about models of procedure and about how a court should adjust them to do its job. Such arguments, as noted, sometimes get overshadowed in the public interest context by talk about rights and social mobilization (which are the focuses of most post-Mazibuko discussion). They should not. As parties and academics increasingly urge bolder approaches on courts in public interest cases, there is a need to think about how to fight the ‘characterization battle’ over these new things which courts must be persuaded to accept.9 Understanding how and when non-traditional court actions pose procedural problems and how we might re-imagine them procedurally will be key. Courts will likely be more receptive to proposals that look familiarly judicial and preserve procedural safeguards; conversely, the Constitutional Court especially has proved cautious of potentially unsustainable or unmanageable approaches. So while we need procedural arguments to deal with more expansive public interest activities if courts take them, they might also be necessary in order to persuade courts to take them, or to help judges assess when to be persuaded by them. In search of a procedural model I promise no complete answers, but to help us approach these issues and think about them, I will be working towards a model for procedure in the public interest context. I’ll examine claims, which one encounters perhaps most prominently in India, that public interest litigation ‘is’ a new, non-adversarial, collaborative problem-solving form of litigation.10 While these aspects of public interest litigation are undoubtedly valuable, I’ll reject the implication that we should make them the basis for a special, non-adversarial way of thinking about procedure in these factors may be sufficient or, to a lesser extent, always necessary and warn about a formulaic, ‘painting by numbers’ approach litigation’. They also note that they are testing whether there is ‘a causal relationship between [the factors] and winning in court’, but that the ‘authors are more graduated in their discussion of [this proposition]’ (Id., 40). 9 Marcus & Budlender’s sixth factor (above note __ ) 137; discussed by Dugard & Langford (above n __) at 50-‐52 10 See e.g. Dr Upendra Baxi v State of UP (1986) 4 SCC 106, 117; Bhagabati Prosad Bannerjee Writ Remedies 4 ed (2007) 1305, 1306


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the public interest context. That is not to say that traditional adversarialism, whether common law or continental, is adequate either; only that one can share a sense that adversarial procedures are not always adequate without basing whole one’s model on their rejection. We need a model that makes room for all of these approaches and their respective strengths and is much more focused on deciding which approach to use when. I’ll offer as a candidate for this role the idea of the managerial judge, which came of age in the US around 1980.11 For the managerial judge, formal procedures are always the default – but a default to be avoided wherever possible by judicial efforts to avoid taking a formal step. The paradigm accordingly challenges progressive instincts about public interest litigation because it implies that we should treat formal procedural steps as the default and should not necessarily treat adversarialism as inappropriate in the public interest context. However, it also challenges more traditional thinking. If traditional adversarial models are not always adequate to what public interest courts are doing, that does not necessarily mean a departure from formal procedural mechanisms. It might also mean that we need new ones. As my comments about Mazibuko should indicate, my primary interest in these questions is practical rather than theoretical, although the practical insights yielded by grappling with procedure in the public interest context are of theoretical interest too. One of the advantages of thinking procedurally is that it challenges a tendency to treat public interest litigation as a unitary phenomenon. Famous articles like Abram Chayes’ The Role of the Judge in Public Law Litigation and famous labeled initiatives like India’s ‘PIL’ can make us think of public interest litigation as one kind of thing.12 That is sometimes necessary for the purposes of argument or advocacy but – as real-life PIL reflects and as is implicit but not explicit in Chayes’ account13 – public interest litigation today is a complex and varied phenomenon. Trying to think about its procedural needs is a good way to appreciate that ‘public interest litigation’ is several things, not one, and that multiple procedural mechanisms are likely to be needed. Asking procedural questions is also a good way to approach the underlying theoretical questions about whether and when courts should engage in the sorts of expansionist towards which public interest cases often want to push them. Since courts all over the world are doing these things already or are starting to, and the trend looks unlikely to reverse itself, it is important to ask the procedural 11 The seminal article is Judith Resnik ‘Managerial Judges’ 96 Harvard Law Review 374 (1982); see further the materials cited in n __ below. 12 Chayes (above n __) 13 Since Chayes Is trying to label a new trend, he understandably often talks about public interest litigation as if it were one thing. But he also notes the multiple factors in play, such as ‘multiple forms of relief’ (Chayes, above n __) 1284, my emphasis) and is hardly blind to the multiple forms the welter of new pressures and devices can take (see e.g. Id., 1313); Abram Chayes ‘The Supreme Court 1981 Term – Foreword: Public Law Litigation and the Burger Court’ 96 Harvard Law Review 4 (1982) e.g. 54

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questions whether or not we like the trend. But it is also useful, in deciding about that underlying question, to ask whether the tasks in question can be proceduralised: not necessarily in a traditional way, but in a way that preserves the checks and procedural ends of court-like behaviour. Indian PIL and procedure The Mazibuko example showed how procedural questions can quickly start to arise and why they matter, but to get a sense of the full procedural demands public interest litigation can pose, we need to look at a jurisdiction that has gone much further along this road than South Africa. I take as my example the Indian PIL model, which is as expansionary as any around and with a comparatively long track record. (To avoid confusion, I will follow standard usage and speak of India’s model as ‘PIL’, as distinct from ‘public interest litigation’ in general.) Indian PIL should be seen against the backdrop of its birth. In summary, certain Supreme Court judges began in the late 1970s to take taking deliberate steps to engage with the problems of the poor. That meant greatly weakening standing rules to allow representative litigation, greatly relaxing pleading standards so that members of the public could launch cases just by writing informal letters to the court, and having the court take over part or all of the work of getting the evidentiary burden discharged. It also meant taking a very creative approach to interpretation and remedies, in the name of doing whatever was necessary actually to engage with and address the problems of the poor.14 Methods have changed over time, and today a PIL petition is more likely to be a vehicle for middle class concerns than those of the poor, but this summary will suffice for present purposes.15 The ‘collaborative’, ‘problem-solving’ paradigm calls on all involved in a litigation to approach it in the spirit in which PIL’s founders did. Petitioners are meant to be publicly-spirited citizens raising problems of state conduct and ordinary people acting as ‘socio-legal entrepreneurs’ to represent the neglected issues of the

14 For summaries, see esp. Ashok H Desai & S Muralidhar ‘Public Interest Litigation: Potential and Problems’ in B N Kirpal et al (eds) Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2004); Parmanand Singh ‘Protection of Human Rights through Public Interest Litigation in India’ Journal of the Indian Law Institute 263 (2000); Sheenaz Meer ‘Litigating Fundamental Rights: Rights Litigation and Social Action Litigation in India: Lesson for South Africa’ 9 South African Journal on Human Rights 358 (1993); G L Peiris ‘Public Interest Litigation in the Indian Subcontinent: Current Dimensions’ 40 International and Comparative Law Quarterly 66 (1991); Jamie Cassels ‘Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?’ 37 American Journal of Comparative Law 495 (1989); P P Craig and S L Deshpande ‘Rights, Autonomy and Process: Public Interest Litigation in India’ 9 Oxford Journal of Legal Studies 356 (1989); for further sources, see Fowkes (above n _) 15 Fowkes (above n __) and further sources cited therein at n __


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poor.16 Respondents, especially from the government, are supposed to react in kind, working with the petitioners as stakeholders sharing the aim of addressing the problem instead of as combatants jockeying for advantage. Formal legalisms should not get in the way of this joint problem-solving activity. Instead, the court should be creative in working with the parties to develop solutions to problems, dispatching commissioners to collect evidence so that the litigation can move forward and determining procedural steps as the litigation proceeds rather than by following the traditional map of how a case should proceed. The remedy, in turn, is not the final stamp applied to the completed process, but a first attempt at responding to the problem, to be monitored and adjusted as necessary through the combined, collaborative efforts of all concerned. (I’ll consider these non-traditional features of public interest cases in more detail below). It is not too much of an exaggeration to say that PIL procedure can be just what the judge wishes it to be. Two very open-ended provisions, of a kind to be found in many legal systems, underwrite PIL’s procedural flexibility. Both the Indian civil and criminal procedure codes have a blanket provision preserving the ‘inherent jurisdiction’ of the courts, which PIL courts rely upon to avoid standard procedural steps. Even more important to PIL is Article 142 of the Indian Constitution, which in relevant part provides that ‘The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter before it…’. This is a key root of the problem-solving idea. The Indian Supreme Court uses Art 142 as the basis for departing from all and every kind of procedural norm, as well as other departures, including imposing settlements on unwilling parties and overriding legislative provisions in order to do what is judged to be ‘complete justice’.17 As one might expect, this vast discretion has had mixed results. It permits the sort of flexibility that allows the Supreme Court to run a case like the Right to Food petition, PUCL v Union of India, approaching its twelfth year of litigation at time of writing. In that time, the Supreme Court has issued hundreds of interim orders in response to myriad problems associated with a drought in northeastern Indian in 2001 and aspects of the government’s response to it.18 The Right to Food case has acquired the status of poster-child, and while inevitably it has its problems, it demonstrates the virtues of creative procedural responses when a court is confronted with a highly complex and polycentric as well as urgent problem and a persistently inadequate state response. But with this kind of flexibility come the concerns: concerns that parties are not always receiving an 16 Bhagwati (above n __) 574; see also esp. his opinion in SP Gupta v Union of India AIR 1982 SC 149, paras 13-‐17 17 Aparna Chandra ‘Under the Banyan Tree: Article 142, Constitution of India and the contours of “complete justice”’ (unpublished manuscript). I am grateful for her permission to refer to the article, which is still in draft form. 18 PUCL (People’s Union for Civil Liberties) v Union of India (Writ Petition (Civil) 196/2001); for key orders, see <http://www.righttofoodindia.org/orders/interimorders.html>

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adequate hearing and are having settlements forced upon them without a legal basis other than the Court’s view that this represents ‘complete justice’;19 concerns that fact-finding is insufficiently rigorous and that judgments are showing ‘a reliance on unquestioning presumption and reiteration rather than empirical evidence’;20 concerns that PIL today is ‘characterised by excessive and overweening judicial power, where judges adopt “command and control” strategies in PIL cases…’21 Even the judges express frustration at cases that drag on for years with little or no progress being made.22 As I have argued elsewhere, this procedural flexibility can also permit the sort of radical procedural innovation that is valuable – perhaps uniquely valuable – in expanding access to courts, especially in countries where many are illiterate or legally illiterate and lack access to resources. PIL has seen the court take a wide range of non-traditional steps to accept informally-drafted petitions, convert them into legal petitions, discharge the evidentiary burden where parties cannot, and seek to fix with problem with innovative remedies. I argued that South Africa should take advantage of this valuable mechanism.23 However, as I also argued, the lack of regulation also seems to be a key reason behind the decline in PIL’s ability to expand access to non-traditional litigants. As PIL has become too often used to be truly an extraordinary procedure, as exercises of its jurisdiction have grown longer and more frequent and more frequently concerned with large and complex problems, so it become less effective at doing the extraordinary work of facilitating the hearing of petitions from non-traditional litigants.24 There are also concerns that the PIL vehicle is misused and has become politicized, and that there are no consistent guidelines for the use of the special PIL procedures.25 Public interest litigation and some possible procedural paradigms This assessment might mean nothing more than the trite point that every scheme has its weaknesses and bold schemes perhaps more so than average. SP Sathe is not blind to PIL’s faults when he defends it as a justified judicial response to 19 Chandra (above n __) 20 Venkat Iyer ‘The Supreme Court of India’ in Brice Dickson (ed) Judicial Activism in Common Law Supreme Courts 122 (2007) 21 Arun K Thiruvengadam ‘Swallowing a bitter PIL? Brief Reflections on progressive strategies for Public Interest Litigation in India’ in Siddarth Narrain & Mayur Suresh (eds) The Judicial Nineties (forthcoming, 2011) 22 See e.g. MC Mehta v Union of India AIR 1999 SC 300, para 1 – but nearly thirteen years later the case has still not been resolved. See Lavanja Rajamani & Arghya Sengupta ‘The Supreme Court’ in Niraja Gopal Kayal & Pratap Bhanu Mehta (eds) The Oxford Companion to Politics in India (2010) 87 23 Fowkes (above n __) 24 Id., __ 25 See the various warnings, objections and calls for reform over the years collected by Madhav Godbole The Judiciary and Governance in India 122-‐35 (2009); BL Hansaria & Vijay Hansaria Writ Jurisdiction 3 ed 532-‐37 (2007) and Bhagabati Prosad Bannerjee Writ Remedies 4 ed (2007) 1305-‐08; 1315-‐16; Iyer (note __ above) 151-‐152


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widespread governance failures.26 If so, we might just have to decide whether we want to swallow the costs. The assessment might also mean that we should to accede to those, like Bruce Ackerman, who suggest that we need a new set of judicial-like institutions to take over the new regulatory tasks posed by the welfare state, leaving the traditional tasks to the traditional methods of the traditional institutions.27 These are possible conclusions, but I want to explore the alternative possibility that there might be ways to subject PIL-like mechanisms to a greater degree of procedure, in order to respond to the problems that seem to flow from a lack of it, without foreclosing their abilities. Does this require us to abandon traditional adversarial models? Should we consider drawing on continental approaches? Do we need a unique public interest model? As already noted, some favour the view that public interest litigation is its own distinct kind of litigation with its own procedural model, a collaborative, problem-solving, complete justice model. That looks like a plausible enough suggestion in the Indian context, given the radical nature of PIL. Expansive moves in other Latin American countries in areas such as the right to health also suggest this kind of novel model.28 We might take the same view of the more expansive US cases, where judges have overseen the drawing up of policies, intervening in their detail and implementation, in lengthy exercises of jurisdiction.29 Other examples suggest different ways of thinking about public interest litigation. The emerging South African model often looks like traditional adversarialism with some modifications, as I’ve already suggested in the discussion of Mazibuko. Some experimentation with remedies has occurred, but so far the Court has stuck reasonably close to the traditional roadmap of litigation, to the ire of its critics. In the US, where class actions can be public interest vehicles but are also a private litigation mechanism, it also looks plausible to think of the public case as we would the private one: just a special modification of the traditional model. Then again, it might also make sense to stay traditional but switch legal families. The suggestion has been made in common law countries, including the US and India, that public interest litigation represents a step in the direction of the

26 SP Sathe Judicial Activism in India 2 ed (2002), esp. 249-‐311 27 Bruce Ackerman ‘The New Separation of Powers’ 113 Harvard Law Review 633 (2000); see also Bruce Ackerman Reconstructing American Law (1984), esp. Ch. 2 28 See e.g. B Wilson ‘Rights Revolutions in Unlikely Places’ 1 Journal of Politics in Latin America 59 (2009); Manuel José Cepeda-‐Espinosa ‘Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court’ 3 Washington University Global Studies Law Review 529 (2004); César Rodríguez-‐Garavito ‘Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America’ (Texas Law Review, 2011, forthcoming) 29 For a (non-‐critical) representative account of the implementation of Brown by the 5th Ciruit, see Jack Bass Unlikely Heroes (1990); see also Resnik (above n __) 393-‐95 and sources there cited; Owen Fiss The Civil Rights Injunction (1978).

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continental model.30 So it might be reasonable to ask if the best procedural way to understand public interest litigation is using a continental model with some modifications. This approach might be useful in continental systems. For example, Colombia’s model, where the Constitutional Court’s use of tutela action created by the 1991 Constitution for the protection of human rights has ‘established a solid doctrine of precedent’, represents a minor break with continental tradition in a common law direction.31 A continental-with-modifications model might also usefully capture this sort of move. I’ll work through these options in turn. I shall reject the adequacy of each of them, but assessing the strengths and weaknesses of each will bring out what the procedural demands of public interest litigation are and start to show why the conception of the managerial judge might be helpful. Traditional adversarial procedure and the analogy to private law Let us begin with the most familiar common law adversarial model. Its inadequacy to the realities of public interest litigation is familiar, but several features of the standard arguments are important to note here. As Chayes famously argued, public interest litigation looks significantly different from bilateral, private law dispute resolution. The judge becomes a more central figure. The fact-finding enquiry becomes concerned with the facts as they really are, rather than simply the version that one party can prove as against the other, since one is trying to act in the public interest and not simply settle a dispute between two parties. This is sometimes referred to as the distinction between legislative and adjudicative fact. The complexity of the problems public interest litigation addresses reqularly requires ongoing engagement with the problem. A process that ends with the outcome sought by one party or the other is replaced by an ongoing series of interventions trying to produce a publicly desirable outcome. A further result of this is that the legal aim of the litigation is no longer simply ‘an increasingly more systematic and refined articulation of the governing legal rules’, in Chayes’ words:32 instead, public interest litigation is concerned with change in the legal system and/or producing change in the real world. Most of these features produce some degree of mismatch between the procedure designed for private adversarial adjudication in and the way in which public interest litigation needs to run. The same point will hold for continental

30 See e.g. Jeremy Cooper ‘Public Interest Law Revisited’ 25 Commonwealth Legal Bulletin 129, 136 (1999); Chayes (note __ above) 1298; Fowkes (above n __) __ 31 See e.g. Luis Eslava ‘Constitutionalisation of Rights in Colombia: Establishing a ground for meaningful comparisons’ 22 Revista Derecho del Estado (Journal of the Law of the State) 183 (2009); Cepeda-‐Espinosa (above n __) 552-‐54 32 Chayes (above n __) 1286


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systems; I will consider that in a moment. Before we get there, however, it is important to make two other points about common law adversarialism. The first is that, whatever else we might say about the model, it does represent a carefully refined model for protecting substantive procedural goods and structuring cases. These are things we have already seen to be sources of concern in the public interest context. That is no argument for a blanket retention of traditional adversarial procedures; all it means that we should be slow to abandon these features more than it necessary. We should test when and where they really are not fit to handle the particular demands of the sort of public interest case at hand. My contention that it is a mistake to treat public interest litigation as a unitary phenomenon will be important here, since it reminds us that the failure of traditional methods to handle some kinds of case should not, without more, be a reason to be suspicious of them in all kinds of public interest cases. It is also of non-negligible importance that, whatever the defects of common law adversarialism, it is the system to which lawyers in common law countries are accustomed and will most naturally see as fair. (I’ll implement this suggestion in one of the illustrations at the end of the paper.) The second point is that we should similarly not let our suspicion of traditional adversarialism in the public interest context become a blanket suspicion of the ways private litigation is conducted. Chayes was using an ideal type when he set up his public/private contrast, which is fair enough for the purposes of argument. But even so, he was writing at a time when 75% of US civil trials were classic contract and tort cases.33 Modern private litigation has developed a lot since, and it is often much more flexible and free-wheeling than the classical picture of bilateral adjudication implies. So we would be wrong to equate traditional adversarialism with private litigation and reject the latter in the public interest context because we reject the former. Indeed, my proposal to use the managerial judge paradigm proceeds in exactly the opposite direction. The trend to which which Chayes was drawing attention in his famous and seminal paper matches the trend Judith Resnik was noting in her famous and seminal paper on the rise of the managerial judge, and Resnik was writing mostly about private litigation. She noted Chayes’ argument, but brought it into a much broader argument about the management role judges were adopting in public cases but also, and much more commonly, in routine cases and private law cases.34 Because of these broader concerns, Resnik’s argument does not speak much to legislative fact or the public dimension that is of specific importance in public interest litigation. But even here there is again much more overlap than the classic paradigms suggest. The extent to which private litigation concerns 33 Marc Galanter ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ 1 Journal of Empirical Legal Studies 459, 466-‐73 (2004) 34 Resnik (above n __); see 377-‐78 for treatment of Chayes’ argument

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matters of public interest or takes them into account is rising in today’s world where government regulation is more common, individuals’ actions have more impact on one another than ever before, and the law is increasingly taking account of this. After all, the implication of s 39 of the South African Constitution and the Constitutional Court’s decisions in Carmichele and Shilubana is that, in principle, the courts should take public interests into consideration in every private law case.35 And South Africa is hardly unique in these respects.36 If the first point was that we should be not be too over-hasty to abandon traditional adversarialism, this second set of arguments should make us suspicious of arguments that public interest litigation is a special distinct type of litigation requiring its own sorts of procedure. It should also make us more willing to look to more routine, private litigation for ideas. Resnik, after all, was worrying about the same concerns of accountability, transparency, fairness and predictability that arise in relation to today’s creative public interest models.37 I hope my move to draw on the managerial judge idea will already seem more explicable, and private law processes are a potentially rich source of ideas when we start trying to think about how to solve public interest procedural problems. Traditional continental procedure I’ve noted the tendency in common law systems to view public interest litigation as a shift in a continental direction. Public interest litigation often places the judge in a more central role, and increases the role of the court, versus the parties, in leading the fact-finding process and appointing experts and other persons to assist the court. Features like these do look more continental than common law.38 Other features are more classically continental but the common law system in general is moving in that direction. The way that public interest litigation often breaks up into an ongoing series of hearings fits continental models and clashes directly with the traditional common law concentrated trial. But since the need for the concentrated trial arose from the jury, it has declined as juries have. Continental judges are also used to being actively involved in encouraging parties to settle, which is traditionally anathema to the common lawyer, but is now frequently accepted.39 In both respects, the managerial judge prominently displays these trends by common law judges to behave more like continental 35 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) (judicial duty to develop common law in accordance with constitutional values even if unprompted by the parties); Shilubana v Nwamitwa 2009 (2) SA 66 (CC) (same duty applies in the context of customary law). 36 Prominent examples of similar approaches are Germany and Canada 37 Resnik (above n __) esp. 424-‐44 38 See e.g. Mirjàn Damaska ‘Presentation of Evidence and Factfinding Precision’ 123 University of Pennsylvania Law Review 1083 (1974) 39 Resnik (above n __) 384-‐86; see also John Langbein ‘The German Advantage in Civil Procedure’ 52 Univ of Chicago LR 823, 840-‐41 (1985)


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ones in areas that, in turn, are places where the analogy to the way public interest cases seem to run is strongest.40 This is another indication of why the managerial judge idea stands to be a useful one in the public interest context. Given the match-ups with the continental model, however, why do we not just use a continental model of procedure? There are two reasons. Although the continental model is instructive and is worth taking seriously, the analogy between it and public interest litigation is not as strong as it might appear at first site, and in addition both the traditional continental and common law models struggle to account for certain features of public interest litigation. There are two main problems with the analogy. The first, which I’ve elsewhere discussed specifically in the Indian context, is that the court-appointed officers of public interest litigation cannot be equated with court-appointed experts in the continental system. In the PIL context, where the use of commissioners is widespread, the point is easy to see. PIL commissioners are not necessarily experts, but may be picked simply for their reliability and credibility. They do not necessarily produce findings on things that call particularly for expert judgment, but may also consider matters calling for everyday observation or make more subjective judgments. They do not necessarily use expert methods, but may rely on interviews and observation. As a result, it is not at all obvious that it is appropriate to place the same sort of weight on commissioner evidence that is placed on court-appointed expert evidence in a continental system.41 The Indian usage is particularly extensive, but the same problems arise in other systems, because the underlying cause is the same. The more a court tackles large problems (and the more it tackles problems larger than the capacity of the petitioners before it, as is common in India but also, for example, in Latin America, where the rules also make it much easier to approach a court),42 the more the court must rely on others to gather evidence, and the more likely it is that the evidence will expand beyond discrete expert enquiries.43 The second problem with the analogy is that the factual enquiries of public interest cases can be far more free-wheeling and unfettered than anything in ordinary continental practice. (Again, the discussion of the Indian system above provides examples, but the same can be true in other systems). The free-ranging inquisitorial judge exists in continental systems in criminal law. But in civil law cases, most continental judges are confined to investigating matters defined by the parties, and those that have a more wide-ranging discretion to shape their

40 Resnik (above n __) 425-‐29 41 Fowkes (above n __) ___ and sources there cited 42 Cepeda (above n __) 552-‐54; Eslava (above n __) 43 That said, we will see below that some public interest cases are more matters of expert knowledge than others and are often easier to resolve for that reason. The analogy to traditional continental process is truer in these cases, so it should not surprise us that they present fewer procedural challenges.

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own factual enquiries use it narrowly.44 In practice, the standard continental model is not used to handling the sort of enquiry that public interest litigation can produce. Nor, as I’ll now argue, can we just ‘scale up’ traditional continental methods to match the scope of public interest litigation: the differences are of kind, not merely degree. Making out this argument requires examining in detail the special features of public interest in relation to traditional models of either continental or common law varieties, and starting to see why (and when) the traditional models tend to break down in some kinds of public interest cases. Problems with traditional theories The key procedural differences trace to the way in which public interest litigation can see the erosion of many of the traditional ways in which litigation is shaped, controlled and terminated. On the traditional paradigm, in common law and continental systems alike, an initial pleading stage sets out the legal relief sought. That initial pleading determines what factual questions will need to be answered. Established burden of proof rules tell us who must prove what fact and how we will know when they have succeeded or failed. The link between that factual enquiry and the initial pleading, in turn, tells us the consequences of that success or failure: the judge gives the relief asked for, throws out the case, or concludes some interlocutory stage. These stages are also fairly rigid. There are stages at which legal issues are defined, after which parties are generally held to their legal challenge as pleaded. The same applies to facts, which are then determined in retrospective fashion – what happened? – and then adjudicated upon, with new facts generally being inadmissible beyond a certain point, or on appeal. Relief follows from what was pleaded, and with it comes then end of the litigation. As noted, the reality of even private law litigation does not always match this paradigm, and I’ll discuss that later on. But even so, the extent to which public interest cases can erode each and every one of these controls is probably unmatched. In a public interest case, the legal form of the dispute will often not be clear. The whole point of the public interest case may be to raise a problem for which there is no established legal solution in order to argue that there should be one. In that situation, the law cannot do the same work to shape the factual enquiry. Instead, it is it the facts that are being raised to shape the law. Indian PIL brings this problem out particularly clearly. With its relaxed pleading standards, the PIL petition often serves to do nothing more than raise a factual problem for the court to solve, with initial legal pleading doing no work at all to shape the enquiry: there is a drought occurring here, the government is not responding, and these problems are resulting. On this sort of fact-pleading, the argument is really that 44 Mirjàn Damaska ‘The Uncertain Fate of Evidentiary Transplants: Anglo-‐American and Continental Experiments’ 45 American Journal of Comparative Law 839, 841-‐43 (1997)


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what is going on cannot be constitutional but it is up to court to figure out exactly why and precisely what is not constitutional. The court is potentially left to investigate the whole situation, rather than those just aspects of it that are pre-identified by established legal pleadings as facta probanda, in the way that an allegation of breach of contract tells a court fairly precisely which facts are relevant and which are not. Given the complexity of some public interest issues, the result can be a truly vast enquiry, on which a court can struggle to get purchase. In the Right to Food petition, almost any fact relating to the drought or its effects or responses to it looks relevant. (We shall see in a moment how something else substituted to limit factual enquiries in that case). The factual enquiry is much more open in time as well. A court may conduct a fact-finding exercise only to find that new facts suggest more or different violations that require further investigation. It would be anathema for the problem-solving court to rule these out on the grounds that the fact-finding stage has concluded, and indeed, once the litigation is understood as an attempt to grapple with the real problem, it is hard to find a principled way to rule the new facts out. Without the specific framing of an initial pleading of an established sort, the court has no real basis for saying that the further factual investigation falls outside the scope of the applicant’s case – the PIL applicant has a problem, not a case. A version of the same problem affects an appeal court where the record has been overtaken by events, a problem we saw starting to emerge in Mazibuko. This openness extends into the remedial stage. The reason is that the legal violation in a public interest case, even when it comes to be defined, may still not do very much to cut down the factual enquiry. Learning that the lack of adequate government response to the Right to Food case violates the right to life still does not tell us very much about what to do next – it really just tells us that, indeed, the Constitution does require the problem to be remedied. Its scope is as wide as ever, and accordingly the potential scope of fact-finding and legal enquiries in relation to remedy can be as open as the factual enquiry was. It is hard to find a principled way to end the remedial stage unless and until some decisive change to the problematic factual situation is brought about. The remedial enquiry is also open in time, too. Since there is no point in remedying a problem other than the one that is actually at hand, it is hard to rule out in a principled fashion new facts implying new or adjusted remedies. Again, we saw the Constitutional Court apparently moving in this direction in Mazibuko. Of course, if a detailed account of the right and the nature and extent of the violation could be set out, this might serve to guide the subsequent remedial activity. But the openness problem itself may rule out this solution (even if judges are not minimalists for other reasons). It can be very hard to produce a legal account of exactly what has gone wrong in a complex fact pattern (and it can be a daunting thing, even for those not very inclined to minimalism, when the

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judgment will have precedential effect on a vast, very complex area or define lasting entitlements). Slicing the problem down will make the legal task more feasible, but at the same time risk failing to get at aspects of the problem. It is therefore unsurprising that public interest cases often become lengthy exercises in jurisdiction punctuated by interim orders. This allows the court to slice up the problem by trying to target aspects of it, while retaining the option of further interim orders for other aspects of the problem. But of course then one is back to piece-by-piece tactics, and the openness of the problem will still be defining the litigation, rather than a comprehensive legal finding. The same analysis applies in respect of the openness of the problem in time. A comprehensive legal finding risks being overtaken by events, made obsolete either by changing circumstances or by hitherto unnoticed aspects of the problem coming to light. The tactic of using a number of narrower interim orders is natural here too, because it allows the court multiple bites at the cherry. Again, the effect is to incline the court away from the sort of comprehensive legal framing that might give shape to the facts, and thus to the remaining course of the litigation as a whole. Instead, the open-endedness can continue to exist even in the case of a successful exercise in prolonged engagement. The Right to Food petition has enjoyed a number of successes and can point to real progress. But the framing of the case is still the factual one of problems arising out of the inadequate response to drought and starvation in northeastern India. Is there a principled way to end the case, short of reaching a point where there is no reasonable threat of starvation any more? It is these features that make traditional models seem outmoded and that support the view that bold public interest litigation is a matter of bursting the banks of the traditional formal procedures. It is also features like these that make it plausible to think that public interest litigation needs a unique model all its own. The collaborative, problem-solving paradigm As noted, some in India insist that PIL ‘is’ a collaborative, problem-solving form of litigation.45 The claim that this is what PIL is represents a stronger version of the more common claim, which is that this is what public interest can be. For example, in Latin American discussions one finds references to the ways in which courts ‘may promote a collaborative search for solutions…’46 and to ideas of participatory and deliberative democracy in the context of public interest cases.47 Mazibuko seems to understand its stance on permitting government to

45 See sources cited in n 10 above. 46 César Rodríguez-‐Garavito ‘Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America’ (Texas Law Review, 2011, forthcoming) 47 Alicia Ely Yamin ‘Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health’ 10 Health and Human Rights Journal 1, 6-‐7 (2008); see also Roberto Gargarella


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adduce evidence of its ongoing response to a problem partly on the basis that this is desirable in terms of accountability and ‘participative’ democracy.48 These ideas of public interest are certainly attractive. When we are dealing with urgent, important social problems, we want to set aside the procedural formalisms and roll up our sleeves, and it seems natural to expect everyone else (notably, government respondents) to do the same. When this happens, it is natural to understand it in terms of accountability and sophisticated forms of democracy in action. The other appealing aspect, as we have seen, is that implies valuable procedural flexibility. We should never be held back by procedural formalisms, but instead should just do what it takes to tackle the real problem. The value of this in public interest cases seems clear enough. Given this appeal, might these ideas of collaboration and problem-solving provide us with the model for procedure we are looking for in the public interest context? The primary difficulty with treating these sorts of ideas as a model, in a line, is that its content is aspirational; whether the aspirations are fulfilled is not in the court’s control (or the reformer’s); and basing one’s whole model upon them means that the model has no answers when the aspiration is frustrated. Collaborative adjudication is attractive when it works, but parties do not always wish to collaborate. A case in which parties are willing to engage in productive ways can certainly be pleasingly understood in terms of participatory and deliberative ideas of democracy, but when that engagement is not forthcoming, neither is the democratic appeal. The difficulty with the problem-solving idea is that some problems resist solution, and then the overriding focus on the problem becomes counter-productive because the court can neither help nor escape. Put another way, the problem is that these paradigms aspire to break with traditional adversarialism, but if they are not to collapse back into it, then they are left trying to operate in the non-adversarial manner even if the necessary co-operation or engagement is not forthcoming from the parties or even if the necessary tractability is not displayed by the problem. This matters because when these things are forthcoming and displayed, they can fill in for the deficits left by the departure from standard adversarial procedure, as we’ll see in a moment. So when they are not forthcoming, nothing fills in for these deficits. That does not prevent action. The judge can override recalcitrant, combative parties, or act despite their apathy or inability. The judge can also keep doing the best she can to deal with a problem even if it is hard. But she will then be trying to do these things, and do them in a fair, transparent, judicial manner, in the absence of both the traditional back-and-forth process of adversarial procedure and the deliberative, collaborative processes advocated by the alternative models. Even ‘Should Deliberative Democrats Defend the Judicial Enforcement of Social Rights?’ in Deliberative Democracy and its Discontents (2006); Carlos Nino Constitution of Deliberative Democracy (1998) 48 See Mazibuko, paras 71, 160, 163

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the best judges can be expected to struggle in these circumstances, because they are asked to decide and meet procedural standards without a process. That is the summary; several of the parts of this argument require more detailed analysis. A key part of the procedural role played by the collaborative idea and those of participatory and deliberative democracy is that they represent consent to a non-traditional process. If the parties can be persuaded to engage in this way, they are effectively condoning the departures from normal procedures, with the potential losses of things like strategic advantage that this might represent. To the extent that this consent is absent – to the extent that parties are not willing to engage – then a court’s insistence on non-traditional procedures risks coming at the cost of overriding party wishes. This can be seen in Indian PIL, where the Supreme Court regularly does precisely that.49 This is not necessarily a bad thing – in a public interest case, the public interest, and not the wishes of the parties, is ultimately decisive. The concerns are subtler. Forcing procedural steps on parties against their wishes is a recipe for creating perceptions of unfairness. If this is done too expansively in public interest cases (where, as noted, the law often imposes relatively few constraints on the process of the litigation and where a court might exercise jurisdiction for years on the basis of interim orders without issuing a written judgment), this is also a recipe for creating perceptions that judges are a law unto themselves. As noted, we see this in India, too.50 The deliberative, collaborative and participatory ideas also play the procedural role of performing a checking function. Multiple parties, all scrutinizing courses of action from their different standpoints and contexts, substitute for the back-and-forth of adversarial pleading (or conceivably improve upon it). But suppose the applicant is a hard-line activist with little interest in compromise, or a grand-standing political figure mostly interested in publicity, or a sincere private citizen but with limited means. Suppose that the respondent is a recalcitrant government agency or a disengaged public official. Differing degrees of blame aside, each of these actors will likely perform a checking function of limited value at best. In these cases, a very great deal will depend on the judge: on her ability to draw upon court-appointed experts to provide a platform for decisions, and her ability to be the philosopher king she is being left little option but to try and be. If the judge herself seeks publicity51 or feels urged by the problem-solving imperative to act rapidly, it is easy to see how a court might rush into ill-considered activity based on a possibly flawed understanding of the situation.

49 Aparna __ 50 See the sources cited in notes 19-‐25 above 51 See the acid account of certain Indian judges’ concern with international human rights prizes given by the Indian polemicist Arun Shourie Courts and their Judgments: Premises, Prerequisites, Consequences 402 (2001)


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Consider next the problem-solving idea. The trite concern in this context is polycentricity. In the context of procedure, polycentricity is a concern because it is a recipe for openness of fact-finding and of remedial activity, as already discussed. But that concern will be much more present in some cases than others. Polycentricity is not necessarily a procedural problem to the extent that experts can give reasonably certain answers to the polycentric problem. Deciding on the size of greenbelts surrounding mines so as to minimize impacts on neighbouring wildlife, residential and tourist areas is a polycentric problem. But much of the decision-making is about noise levels and dust levels and the distance they travel, and those are all questions with reasonably firm scientific answers.52 Other polycentric problems, like how to find housing for evicted slum-dwellers or determining the distribution of healthcare resources, do not necessarily have answers of this sort. In cases more disposed to scientific answers, the science will do (some of) the narrowing of the court-led investigation that the pleadings traditionally do. The science will stand in for legal shaping, and the litigation will be focused according: its conditions for termination will be the implementation of the scientific answer. In cases not of this sort, this will not be possible, and the problems of then openness of the enquiries will still loom large. Something similar is true of the case where the court confronts a problem that has not already been the subject of an attempt at a government solution, as opposed to the case where programs exist but are partly inadequate or have been defectively implemented. In the latter situation, the court can use the existing plan as a way to focus the enquiry. The enquiry narrows in on the plan and its suitability and implementation, rather than on the whole scope of the problem itself and the universe of possible plans that might be issued in response. It is this feature that operates to narrow down the scope of the enquiry in the Right to Food case and which thus makes it a much easier case than the difficulty of its subject matter and its sheer size might make it appear. The problem of starvation in northeastern India becomes the problem of getting schemes like the enacted but dormant Mid-Day Meal Scheme implemented.53 In my view, it is no coincidence that Indian PIL has attracted praise in areas where one or both of these conditions is met: environmental cases where the court can draw on scientific expertise, or cases mostly about getting existing plans implemented by drawing attention to neglected issues. Other factors are no doubt in play, but this seems to be one important reason for why it is, as Sandra Fredman says, that ‘PIL appears to be most successful when the court intervenes to require implementation of policies which have already achieved broad consensus but through apathy, disorganization or failure to prioritize have

52 See MC Mehta v Union of India AIR 1996 SC 1977 53 See e.g. Jayna Kothari ‘Social Rights and the Indian Constitution’ Law, Social Justice and Global Development Journal (2004), <http://www.go.warwick.ac.uk/ elj/lgd/2004_2/kothari>

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not been put into action.’54 It might be too early to draw such conclusions in the Latin American context. But it is nonetheless telling that Colombia’s bold moves into healthcare rights, where many cases relate to ‘goods and services which the state had already agreed to provide…and which theoretically should have been financed’ seem to have produced fewer problems than Brazil’s, where the courts have made orders for entirely novel entitlements.55 Bringing these arguments together, we can see how the problematic aspects of collaborative and problem-solving litigation, respectively, have an unfortunate tendency to bring out the worst in each other. The bigger the task that a problem poses to a problem-solving court, the more problematic it becomes if the court is receiving functionally little assistance from the parties before it. The more the court is struggling to define the steps of a litigation and the conditions for its termination, the more dangerous it is to impose a strong problem-solving imperative that makes it hard for a court to throw out a case for being a bad vehicle for engaging with the issue. Instead, the problem-solving imperative calls on the court to take more of the tasks and burdens of the litigation on to itself, making an intractable problem into a judicial entanglement as well. When public interest litigation goes bad, it is because courts have declared problems to be in violation of the constitution, and thus accepted responsibility for fixing them, in circumstances where the problematic features of collaborative and problem-solving litigation make discharging the responsibility equivalent to fixing the problem and make fixing the problem hard even to define, let alone achieve. This represents the perfect storm of the problems considered. It can be seen how non-traditional ideas like collaborative and problem-solving can be functional substitutes for traditional procedures. Indeed, they no doubt often represent a more attractive way to proceed or a better way to tackle the open-endedness public interest cases can display. But it can also be seen how they will not be able to do these things when the conditions are wrong. It will usually make sense for a court to open to these sorts of approaches, but it is dangerous to rely on them alone. They are not in themselves an adequate model – or, at least, we should be trying for something better before we just shrug our shoulders and conclude that these problems are just the costs to be accepted. A two-part proposal The two parts of my proposal reflect the two things that my analysis suggests we need. We seem to have several procedural models, each with areas of strength, but each with significant inabilities. It is possible that the lesson is that no model

54 Sandra Fredman Human Rights Transformed: Positive Rights and Positive Duties 141 (2008); see also Fowkes (above n __) __ 55 Yamin (above n __ ) 7; Octavio Luiz Motta Ferez ‘The Right to Health in the Courts of Brazil: Worsening Health Inequities?’ 11 Health and Human Rights (2009)


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can get it all right, and we must just accept the inevitable weaknesses of the one we pick. But we will want to try for a procedural paradigm that has room for all of them, and which is heavily about fitting them together and deciding when to use what. And we have seen that where traditional formal procedures start to run down, the aspirational ideas can do important work to fill the gap when they work out, but when they don’t, courts have nothing to fall back on. We need to take seriously the possibility that the failure of the traditional, adversarial formal approaches might indicate not only that we should think about procedures that are more informal and flexible, but also about different formal procedures. I offer a sketch of the form I think each answer could take. The managerial judge The idea of judicial management began to be used in the United States in the late 1970s to describe the trend toward judges ‘not only adjudicating the merits of issues presented to them by litigants, but also…playing a critical role in shaping litigation and influencing results’, with a judge being ‘assigned a case at the time of its filing and assum[ing] responsibility for shepherding the case to completion.’ Judges actively encourage settlement, meeting with the parties outside of the trial context to do this and to supervise case preparation.56 As the number of cases resolved at the pre-trial stage continues to increase, this more informal, judge-run pre-trial activity increasingly often represents the totality of the litigation.57 The managerial judge describes a system in which the judge is called upon to run trials in accordance with traditional adversarial rules, but also to conduct novel new tasks which break with the traditional approach and do not fit its rules.58 Pre-trial activity is often much more informal. Negotiation between parties and between parties and judge, including ex parte meetings, is a prevalent feature. Information is produced by the regulated mechanism of discovery, but the interrogation of that material is mainly not done in the formal way at the trial but on an informal, ongoing basis informing the negotiations and the judge’s and parties’ calculations about settlement. There is a trend away from the trial; towards the use of a variety of people to assist the court; a trend towards a more continental enquiry-leading role for the judge.59 The parallels to the situations we have seen can arise in the public interest context should be manifest. It is important to note that these parallels extend to the problems. The abrogation of traditional procedures, and the conduct of cases or large parts of them outside standard rules, raises the same concerns in the context of the managerial judge as it does in the public interest context. The

56 Resnik (above note __) 376-‐77, 378; see also the sources she cites therein in notes 14-‐15 57 See e.g. Galanter (above n __) 58 Such as active judicial efforts to seek settlement; see the discussion associated with notes __ above 59 Resnik (above n __)

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managerial judge is not an ideal, redemptive vision for the public interest case. It is a way to think about the judicial role and about procedure in a situation where, in order to respond to extraneous pressures and serve extraneous ends, new informal procedures arise where traditional formal ones do not fit. The two cases are not identical – the managerial judge is more concerned with efficiency and cost-saving, for example – but the result is very similar. The managerial judge idea differs from the models of traditional civil procedure, of either the common law or the continental variety, because it explicitly accepts that judges will and should often depart from formal procedures. In this regard, it is like problem-solving litigation. It is focused on finding ways to achieve a goal by whatever procedural steps will achieve that goal best, rather than on working through a particular set of procedural steps. For the same reason, the managerial judge is constantly open to the possibility of proceeding in a collaborative or deliberative manner where the parties can be persuaded to do this, because if they are this will often present the best next step in a case. However, the managerial judge departs from these models in turn because it always operates against the backdrop of formal procedure. If the informal creative steps do not work, then the formal, traditional ones will be applied: if you can’t reach a negotiated settlement, then you go to trial. This last aspect of the managerial judge idea points, of course, to the second part of my two-part solution, since it is precisely this lack of a feasible formal fallback option that we seem to be lacking in the public interest context. The managerial judge does not supply this substantive need. Instead, the primary reasons for adopting it as a perspective are more practical. The managerial judge offers a useful heuristic. It labels the view that we need to qualify the popular idea that public interest litigation should be non-adversarial and flexible and avoid expensive, inappropriately combative procedural steps wherever possible. It stands in deliberate counterpoint to the idea that the judge should worry less about the legalisms and just focus on changing the situation on the ground. It can accommodate informal and creative options and a problem-solving focus, but it encourages us to do so in a context where judicial attention is always on defining how the litigation will proceed, where both informal and formal options are constantly in play, and where the substantive goods of procedure also count. As a US doctrine, it also comes with an attached body of scholarly attempts to understand it and consider its problems. No-one thinks the problems have been solved, but it does mean the managerial judge offers does offer one of the better-understood and –defined starting points for this sort of procedural thinking. An illustration may assist here; it will also serve to illustrate the early point about not departing from traditional procedures until it is necessary to do so. Consider a PIL case like Bandua Mukti Morcha, concerning bonded labour.60 The case 60 Bandhua Mukti Morcha v Union of India AIR 1984 SC 802


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began with a letter petition. An advocate was dispatched to confirm its basic contents, after which a commissioner conducted a more detailed enquiry. One could use this report as a basis for trying to move rapidly to solve the problem. But if we adopt the perspective of the managerial judge, we might instead be inclined to proceed in a way that keeps both informal and formal procedural options open. We could treat the letter plus the advocate’s initial report fleshing out its factual averments as if they were a founding affidavit (a first pleading step). The judge could then hold a meeting of the parties to solicit their constructive engagement with the petition, to get a sense of stances and explore opportunities for collaboration. On the basis of that hearing, the judge could determine how to proceed. If the parties can be convinced to collaborate, then they can broadly accept the founding affidavit and/or constructively supplement it. If, on the other hand, they cannot be so convinced, then the judge can fall back on the standard adversarial procedure and require answering pleadings. On the basis of those replies, the judge will, in the ordinary way, be in a position to determine what disputes of fact, if any, stand to be resolved. This sort of structure, with its attention constantly on how the litigation is to run, also permits other sorts of enquiries to be built in. Thus hearings that evaluate party stances and explore opportunities for collaboration can also examine the features of the problem at hand. If the problems are comparatively simple, the conventional back-and-forth of pleading might be sufficient, as might a potentially more informal and collaborative approach if the parties are amenable. The court might, in that case, not need to worry too much about procedure. If the problem threatens to be larger in scale and greater in polycentric complexity, more thinking may be needed. We saw earlier, for example, how matters that were more susceptible to expert resolution, or which arose in the context of existing but defectively implemented plans, were usually easier for courts to resolve. In that sort of case, too, the court may be able to rely on the features of the problem to help solve the procedural problems ahead. If the problem does not look like this, the court must begin at the outset to think about alternative procedural strategies in response. It should not wait until a violation has been found and the court is trapped into trying to deal with a problem it might not be able to solve in a remedial context as open as the enquiry was at the outset. New formal models for hard public interest problems I: judicial management There is considerable room for creativity when thinking about new formal models for the types of situations that public interest cases produce; here, I confine myself to offer an illustration of the sort of thing that might be done. Just as in other cases where special needs arise and special procedural vehicles are designed for them – habeas corpus, class actions – so we do the same here. Novel procedural forms for encouraging public interest litigation, like India’s PIL and Colombia’s tutela, have been created, but we need to think about creating

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procedural structures to deal with the problems that we have seen can arise once the cases are brought. Consider the case of very open-ended and complex engagements when the court is basically acting as a substitute government to co-ordinate a way to deal with a neglected issue – like the Right to Food petition or the Forestry Case.61 We are sometimes tempted to think of cases like this as ordinary violations coupled to very extraordinary remedial activity. But the case looks like nothing so much as when a company is placed under administration. Normally, a company can run along on its own management, with external regulators involved only on discrete problems and issues. But if a company fails too dramatically, however, it may be placed under administration, with external regulators may take over the running of the institution. Established procedures often govern this process. In the same way, the Forestry case and the Right to Food petition look much less like cases concerned with a discrete violation as they do with a systemic failure, with a broken institution or an especially troubled issue effectively being placed under judicial management. In the Forestry case, where the Supreme Court has appointed a committee, answerable only to the Court, to administer India’s forests, the point is particularly easy to see. It is also suggested by the Court’s practice in some cases of appointing a single amicus to a special status, like a curator, to whom other interested parties must make their representations.62 A model like this would allow us to set out in advance the steps to be taken in such an extraordinary case, making the lives of judges easier, enhancing their accountability, and giving parties the benefits of a (comparatively) predictable process. It also permits legitimacy concerns to be taken better into account. Having a special judicial management vehicle presupposes a point during the early exploratory hearings when a decision would have to be taken to employ it or not. A court would have to decide whether a breach was serious enough for it to take over the running of the issue for a non-negligible period, considering all the heightened separation of powers concerns such an enquiry would properly raise. (It might also consider the ability and inclination of parties to assist it at this stage).63 This forces the court to consider the point at the outset, not months later when the court has made a finding of a violation and is applying the test for a supervisory interdict. At that point, unless the government has decisively changed its stance and is dealing with the problem, a court either has to duck the implications of its own finding or is stuck to make the best of what might be a very

61 See Armin Rosencrancz & Sharachandra Lélé ‘Supreme Court and India’s Forests’ Economic and Political Weekly (2 February 2008) 11-‐12 62 Chandra (above n __) 63 See the discussion of the South African Constitutional Court’s existing test for determining whether it is in the public interest for particular parties to bring an issue in the way in which they seek to bring it, and the application of this test to PIL, in Fowkes (above n __)


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difficult situation. There is little room left for consideration of whether this is an issue in which effective court management of the issue will be useful or effective. This way of thinking also tackles the issue of the termination of the litigation, which as noted was hard to do when dealing with an intractable problem. The idea of an issue being placed under judicial management focuses the court’s activity as much on trying to restore government management of the issue as on trying to solve the problem and deal with the immediate harms. Indian courts arguably spend too little time asking about the effects of their interventions on bureaucracies and governance. Shaping the tasks as aiming, in part, to restore the government-run default is one way to respond. This does not displace the task of responding to immediate harms, but it does mean that the principled end to the litigation does not come only when the problem is solved (and since injustice will always be with us, that might be an all-but impossible target), but rather when the issue can be handed back to the government. The managerial judge must constantly think of how the litigation can be brought to a close; confronting this sort of case, the judge must be thinking constantly about hand-over and achieving the conditions for it. Another promising candidate may be the emerging South Africa idea of engagement. A recent discussion by Brian Ray raises concerns about the uncertainty of the procedure and the need for clarity.64 His analysis is mostly concerned with a more structured mechanism within the government. My argument would encourage us also to consider the value of a more certain and established structure for engagement as a judicial procedure (ideally, linking up with bureaucratic structural solutions). Engagement, like Mazibuko, sees the court potentially with feet in two procedural camps: one negotiated, informal, problem-solving; the other traditional, concerned with following a set fact-finding process to produce a judgment. There is a need to consider how these procedural elements match up – how engagement transitions into a traditional adversarial process when it fails; what monitoring standards are imposed on parties (a problem highlighted by the abortive Mamba litigation); and so on. This issue also raises the worry that the articulation of law might be lost when such negotiated solutions are used. In closing, I offer some thoughts on this issue. New formal models for hard public interest problems II: law articulation The value of searching for alternative procedural models is also useful in other contexts. In the discussion of Mazibuko, I noted the way in which a model that takes into account a shifting government response might end up resolving the litigation on the basis of that collaborative response, rather than by pronouncing on facts as originally brought and issuing a judgment about them. Something 64 Brian Ray ‘Proceduralisation’s triumph and engagement’s promise in socio-‐economic rights litigation’ 27 SAJHR 107 (2011)

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similar, on a much smaller scale, can be seen in the South Africa Occupiers judgment. The subject matter of the case ranged widely, but the only hard legal finding that appears from the judgment is that the parties to an eviction have an obligation to engage in good faith over the issue.65 The same feature is associated with the managerial idea in the US, where many cases are resolved by settlement at the pre-trial stage without judgment, and we see it in Indian PIL too: the Right to Food petition has been vast but there has yet to be a judgment. This decline in law articulation is related to the features of the public interest case we have already seen. The basis for much of what is done is negotiation and agreement, rather than law. Much of what happens also takes place at the remedial stage after the finding of a violation, and traditional understandings do not expect reasoned judgments at the remedial stage. The open-endedness of the litigation, as we have already noted, can militate against a judge making too detailed a set of findings at an earlier stage, when reasoned judgments are usually issued. Conceivably, this is a problem we could respond to simply by insisting that judges change their behaviour and find a point at which to issue a traditional-looking judgment. But there are question marks around this strategy, not least because being able to rely on negotiated ideas in a particular case is a key source of valuable flexibility. The more the basis for resolving a case is something that will become binding precedent, the more pressure is placed on the fact-finding process and the need to include and hear from multiple parties. On a very complex sort of issue, we might be suspicious of a precedent-forming judgment that is not the result of an elaborate and thorough process. But that is just the sort of clunky process that courts are not suited to engage in and which they will likely either resist or take much longer to perform. So we may well want to be slow to force public interest judges to take this course. Following this line of argument, we might just accept less law articulation as the price for judicial resolution of these sorts of disputes. But that is problematic in public interest cases which are in part often about shaping the law, and it is also problematic because of the accountability function performed by the judgment. And there are procedural options available that might allow for the articulation of law while being sensitive to the problems already considered. By illustration, one might learn from the procedure adopted by the Colombian tutela system. The tutela is an informal rights-protecting procedure subject to a strict time-limit by when judgment must be produced. The decision is quick and the argument not necessarily very detailed or comprehensive. All tutela decisions are reviewed by the Constitutional Court, and it selects those which it ‘considers 65 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC)


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necessary to correct or pertinent for the development of its own case law’ (my emphasis), and issues a judgment in those cases.66 The effect is to separate the business of finding a solution to the case from (most of) the business of articulating law. The lower court is left doing the former, while the Constitutional Court does the work of expressing the doctrinal consequences of what is happening in the tutela, outside of the pressure of responding to the problem. In South Africa, where the Constitutional Court has strongly resisted becoming a court of first and last instance, one could imagine it playing a role like this in respect of petitions accepted by lower courts. The Indian Supreme Court is far more active, but one nonetheless imagine special benches being convened to state and re-state the emerging law being built in the practice of the individual petitions. To the common lawyer, the activity looks like familiar precedent-building, but with the unfamiliar twist that the review is not necessarily conducted with the concrete needs of an individual factual complaint in mind. The court is focused on legal articulation rather than ‘a case or controversy’, and traditionally the common law has resisted the separation of these two elements. (Continental lawyers will be more accustomed to the somewhat abstract character of the review). But if the arguments of this paper have made any impression, the reader will be more receptive to movements in a continental direction, and to this sort of re-imagining of the pieces that make up the structure of litigation. The suggestion is merely an illustration of the new proceduralisation that I argue is needed in order to safeguard the substantive goods protected by traditional procedures and processes, while rejecting the chauvinistic view that these traditional structures alone are adequate to the realities of modern public interest litigation.

66 Eslava (above n __ ) 204; Cepeda (above n __) 552-‐54

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