Apart from their assigned mod courses, 1L students may only enroll in courses offered as 1L electives. A complete list of these courses can be found on the 1L Elective Listings page. 1L students must use the 1L class number listed on the course description when enrolling.
244.63 sec. 001 - Impact Litigation: Strategy, Structure and Process (Spring 2023)
Instructor: Stephen Berzon
Instructor: Burt Neuborne (view instructor's profile)
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Grading Designation: Graded
Mode of Instruction: In-Person
Th 3:35 PM - 5:25 PM
Location: Law 115
From January 12, 2023
To April 20, 2023
Course End: April 20, 2023
Class Number: 32685
Enroll Limit: 23
As of: 03/31 05:03 PM
Impact Litigation: Strategy, Structure and Process -2 credits
Professors Berzon and Neuborne
Most litigation involves discrete disputes. While the parties often disagree vigorously about the facts and what the governing law is, both parties usually are content to be enforcing settled law in traditional ways. There is, however, an important subset of litigation that seeks to remedy what are perceived to be larger societal injustices, either by altering existing law, or enforcing existing law in novel, more effective ways. We call such litigation "Impact Litigation."
Professors Berzon and Neuborne have engaged in Impact Litigation for most of their extensive careers, which collectively span more than 100 years of practicing law. Professor Berzon has litigated numerous ground-breaking cases throughout the country seeking to establish and enforce legal norms designed to advance economic and social justice in the areas of labor and employment, environment and public health, voting rights, and constitutional law. He was a Founding Partner at Altshuler Berzon LLP where his clients include national labor and environmental organizations. He previously served as Legal Director of the Children’s Defense Fund.
Professor Neuborne has practiced constitutional law on behalf of the ACLU, where he served as National Legal Director during the Reagan Presidency, and the Brennan Center for Justice, where he was Founding Legal Director from 1996-2007. He served as a principal counsel in Holocaust-era cases against Swiss Banks and German industry that resulted in payments of $8 billion to survivors and their families.
The course will begin by reviewing the history of Impact Litigation, exploring its ethical and political legitimacy, the lawyers’ responsibilities to the individuals and organizations serving as parties, and the duties owed to the court, opposing counsel and the general public. We will then turn to a consideration of strategic and tactical judgments, always keeping in mind the remedy counsel is seeking to achieve. These considerations range from deciding whether litigation is strategically wise; to deciding whether to sue affirmatively, or defend; selecting parties; choice of forum (state, federal, administrative, arbitral); choice of initiating case at trial or appellate level; choice of judge; choice of factfinder (judge or jury); choice of individual case, class action, or organizational plaintiff with organizational or associational standing; whether to seek a preliminary injunction or writ; avoidance defenses including subject matter (standing, ripeness, mootness) and in personam jurisdiction, 11th Amendment, qualified immunity, implied causes of action and remedies; fact-finding and discovery; use of media; related political activity; trial presentation; negotiation and mediation; to specific remedies and enforcement techniques. We will also consider the techniques for funding impact litigation ranging from fee-paying clients, to support from non-profit organizations, to government funding, to fee-shifting, to equitable contributions.
Course materials will consist of selected documents drawn from examples of impact litigation carried out by Professors Berzon and Neuborne, law review articles, and contemporary examples of impact litigation. Participants in the seminar will be expected to discuss the issues raised by the course materials and prepare a research paper that either analyzes an example of impact litigation or plans a future litigation campaign.
The cases litigated by Professors Berzon and Neuborne have tended to be in furtherance of their vision of extending economic and social justice. But, as recent Supreme Court decisions demonstrate, the techniques of effective impact litigation are politically neutral and capable of use across the spectrum.
Attendance at the first two weeks of class sessions is mandatory for all currently enrolled and waitlisted students; any currently enrolled or waitlisted students who are not present during the first two weeks of class (without prior permission of the instructor) may be dropped without notice. The instructor can continue to take attendance throughout the add/drop period and anyone who moves off the waitlist into the class must continue to attend or have prior permission of the instructor in order not to risk being dropped without notice.
There are no formal prerequisites. We recommend but do not require Federal Courts and Constitutional Law. Concurrent registration in those courses is fine.
Exam Notes: (P) Final paper
Course Category: Litigation and Procedure
This course is listed in the following sub-categories:
Public Law and Policy
Social Justice and Public Interest
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Instructor has indicated that no books will be assigned.