The public interest is a concept that can be defined in several ways. It is often treated as an ideal standard to which appeals for validation of political claims and policies are directed. References to the public interest commonly occur in editorials, political speeches, and other utterances of an admonitory or edifying character. The term is also often encountered in judicial and regulatory pronouncements. The significance of the conception is normative rather than analytical.
In efforts made to define the term systematically, several categories appear. There is the formal meaning wherein the public interest is viewed as the objective of the duly authorized organs of government or as the expression of majority rule. In substantive or policy terms, the public interest may be envisaged as embracing those activities necessary to the safety of the state and the welfare of the community: defense, police protection, education, and public health and sanitation. The public interest has no a priori content waiting to be revealed. Public responsibilities regarded as being in the public interest in one setting may not be so regarded in a different context. The fact that the concept is elastic and relative rather than fixed and absolute makes it of greater utility in the quest for a supporting consensus as social changes occur and efforts at accommodation are made. The public interest then serves to remind the parties immediately concerned that there are considerations extending beyond their own goals or their particular rivalries or negotiations. Thus in labor-management disputes, or when subsidies or favorable tariff rates are sought for special groups, the consumer interest may be identified as the public interest. The individual may find himself in one role seeking to advance his self-interest and in another capacity allied with the larger good. Hence the term, whether for manipulative ends or for hortatory or inspirational purposes, is neither the device nor exclusive goal of any one group or class. As an aim to be articulated or an ideal to be enunciated, the public interest stands for the broad versus the narrow, the more inclusive versus the limited.
Indeed the very existence of the state as a collectivity would seem to prompt the formulation of basic common purposes. Thus the public interest is akin to the statements of ultimate ends that characterize political philosophy, varying from Plato’s concern with the moral development of citizens as the purpose of the city-state to Hobbes’s emphasis on order, Locke’s protection of natural rights, and the utilitarian’s assertion of the greatest good for the greatest number. As these illustrations indicate, the existence of a common interest is an implicit assumption, although its more specific manifestation cannot always be readily agreed upon. Yet both in traditional political thought and in contemporary organization theory, it has been noted that despite uncertainty about exactly what the shared interests may be, some measure of sharing exists for every human association.
The public interest can be visualized as a continuum that represents the values, aspirations, and objectives of the community or polity. There are values that are clearly central, such as health; and there are objectives that are controversial, such as fluoridation of water or discouragement of cigarette smoking. There are aspirations that are nearly universal, such as world peace; but there are numerous policy objectives to this end, which are subjects for debate. It is impossible to state with precision where any given item belongs on the continuum, yet there is general acceptance that a range of activities and goals exists above irrational or selfish individual interests.
Granted that a wide consensus supports freedom, justice, and compassion, the problem is to objectify these ideals in public policies bearing concretely on such areas as civil rights, race relations, juvenile delinquency, or narcotics addiction. The public interest cannot be thought of as a compromise struck between the desires of dope addicts and moralists or between hoodlums and the police. The public interest is clearly more than the sum of competing interests. It is an insistent reminder that morality must have a central place in any society that respects the freedom of its members. The concept of public interest holds the ultimate ethical justification for the demands that the state makes on the individual. The high value placed upon freedom and justice calls for the readiness of the citizen to make sacrifices if necessary and to share responsibility for sustaining the values of the polity.
The concerns of the philosopher and the needs of the official and the politician will call for continuing reference to the public interest if for no other purpose than as a symbol, as a shorthand device for directing attention to considerations that transcend the immediate, the selfish, and the merely expedient.
The public interest, as a concept, seems to be employed in situations that involve a conflict of interests or a problem of defending or interpreting broader or longer-range considerations against special or more immediate factors. Thus T. H. Green in his Lectures on the Principles of Political Obligation refers to the “common good“in analyzing the rights and duties of the state and the citizen. Brief reference is made to the public interest in the following context: “If the injured individual were likely to fail in the institution of proceedings for his own redress or defence, the public interest would require that the matter should be taken out of his hands“( 1960, p. 240; italics added).
Similarly Robert Maclver in The Web of Government refers to the general welfare and community, but when he describes the conflicting interests of modern industrial states, he writes that “government cannot afford to sit by while the disputants bring economic pressure to bear on one another. ...In the public interest it must devise whatever measures are expedient … to prevent any interruption of vital services” ( 1963, p. 350).
The fact that the term is imprecise does not mean it is disappearing from ordinary usage; this is evident from the frequent references to the public interest in political polemics and in day-today discussions of public policy. The term then is justified as a useful working hypothesis: if it were abolished today, some other polar term would be coined to contrast the selfish goals of the few with the larger good, or sheer majority power with the proper rights of a minority. The occasional debasement and abuse of the term, it is argued, is no reason for its rejection (Colm 1960, p. 127). And as for ambiguity: Is “individual freedom“any more precise than “public interest”?
The concept of the public interest has won acceptance in the context of a functionally differentiated political system and a modern, industrial, and bureaucratized society that has a strong tradition of constitutionalism and rule of law.
The term is closely associated with the growth and professionalization of the civil service. The existence of a “neutral bureaucracy,“officeholders neither subservient to the will of a monarch nor dependent upon a political party, calls for some focus of loyalty. The public interest helps to meet such a need.
Felix Frankfurter, in his The Public and Its Government, uses the concept in referring to the public officials “pitted“against the utilities experts, for whom they are no match “except for occasional men of great capacity and exceptional devotion to the public interest“(1930, p. 115). There are also occasions when officials are accused of exceeding their authority to the detriment of the public interest.
Where clearly distinguishable interests compete and policies can be seen as expressions of group desires, the public interest can be determined with some degree of specificity. Industrialization and improved means of communication and transportation have brought about conditions of complexity requiring more competence and expertise to determine the public interest in particular cases.
In negative terms one can list the efforts made to protect the public interest from threats to public order, safety, and morals (laws and ordinances with respect to crime, accidents, vice) and in the economic sphere regulations applying to fraud, monopolies, vote fixing, fair employment practices, and consumer protection.
Institutionally and procedurally, legislative bodies must rely upon special agencies to discover and protect the public interest within their respective jurisdictions.
From the standpoint of jurisprudence it would appear that the concept has a firm position. According to one spokesman, “the lawmen have a vested interest in ’the public interest’ as an operational concept: They would be tongue-tied without it“(Cohen 1962, p. 160). Nor have judges refrained from definition: “Public interest means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected“(State v. Crockett, 206 Pac 816, 817, quoted in Montgomery 1962, p. 222). And Munn v. Illinois states, “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large…. When …one devotes his property to a use in which the public has an interest, he …must submit to be controlled by the public for the common good“(94 U.S. 113, 126). Technological development and economic growth have resulted in industries whose activities go beyond the owners, shareholders, employees, competitors, and direct customers and affect the interests of a wide community, as in the case of the railroads and power companies.
The literature of recent years indicates a wide range of views concerning the significance of the concept. The differences of opinion result from the varying emphases with respect to its normative aspects and questions concerning its usefulness for analytical purposes. Since there is no generally accepted definition of the term, several different formulations are offered.
According to Walter Lippmann, “the public interest may be presumed to be what men would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently“(1955, P- 42).
Alfred Verdross regards the public interest as“the establishment of social conditions under which individual persons are able to build, through industry and productive work, a life which is in consonance with the dignity of the human being”(Bodenheimer 1962, p. 213).
Charles Frankel writes:
The ideal of the public interest calls on men, despite their egoism, to set their preferences side by side with the preferences of others and to examine them all with the same disinterestedness and impartiality. It asks them to seek as tolerable and comprehensive a compromise among these interests as is possible. And it reminds them that every decision they make is a limited one, that some interests may have been overlooked, that something better may be possible. (1962, p. 200)
Stephen Bailey (1962) calls public interest “the central concept of a civilized polity. Its genius lies not in its clarity but in its perverse and persistent moral intrusion upon the internal and external discourse of rulers and ruled alike“(p. 106). He also notes: “There is perhaps no better example in all language of the utility of myth than the phrase ’the public interest’“(p. 97).
The work of nearly a score of writers on the public interest is collected in Nomos No. 5 under the editorship of Carl J. Friedrich, who notes that it is not possible to discern “any distinctly philosophical, legal or political-scientific approach, though some of the authors lean more in one direction, some more in the other“(Friedrich 1962, p. viii).
Frank J. Sorauf (1962) has given thoughtful attention to “the conceptual muddle“concerning the “public interest“; his conclusions are as follows:
No single criterion or standard, such as the public interest, can subsume or encompass all that is good and desirable for society—regardless of the system of values one prefers or propounds. The matter of the goals of a contemporary industrial society consists in reality of a series of specific, policy-centered questions which involve the entire range of our concern, from a realistic approach to the emerging nationalism of Africa, through care for the ill among the aged, to the resolution of domestic racial conflict and tension. The answers to these policy questions will be hammered out painfully and pragmatically, and they will certainly be expressed in alternatives and wisdom considerably more specific and vastly less grandiose than the all-encompassing guise of a “public interest.“If one argues that a public interest exists in all these problem areas, and if he can go the next step and identify it, all well and good. But why then resort to a concept of the public interest? (p. 188)
That the “public interest“has meaning for some public officials and interest groups is an incontestable fact. That it may in these terms affect the shaping and administration of public policy is equally incontestable. Observation of American politics will also afford instances of its effective use as a unifying symbol and a social myth. Even should scholars reject the public interest for their own analysis, they must observe and record its prevalence and influence in the political system. But it is only as political datum that the public interest has a definable relevance to the study of politics and public policy, (p. 190)
Glendon A. Schubert has reviewed definitions and usage in an effort to discover whether the term could be used as a standard susceptible to empirical verification. His conclusion, if practicable, would point to a wide range of investigations :
If we assume that the peaceful adjustment of conflicting interests is not only the consummate art of the politician, but that it is also the fundamental task of all policy processes in a democratic polity, then a model of administrative due process would be empirically verified if, in practice, the decisions actually made resulted in the maximal accommodation of the affected interests, in comparison with the relative capacities of alternative structures for making the same decisions, and measured by a reciprocally minimal recourse to other centers for public policy change (i.e., the legislature, the chief executive, courts, etc.)…. There would be technical problems in the construction of realistic models, and there would be practical problems in inducing political support for the translation into actuality of any models that went beyond the description of existing agencies and processes. (1957, p. 368)
Schubert concludes that in spite of these difficulties the task is worthwhile. In a later paper, however, he suggests that political scientists might do better to concentrate on concepts other than the public interest, concepts that promise more usefulness as scientific tools (1962, p. 176).
From an analytical viewpoint, the concept of the public interest may be best understood when viewed within a specific context or continuum. There is ample opportunity for research into decisions of regulatory bodies and judgments by the courts where the concept is interpreted in the light of specific issues.
Inquiry into the purposes to which the concept is put, by whom, under what conditions, and with what consequences may lead to a clear understanding of the dilemmas and choice points that face opinion leaders, legislators, officials, judges, and all others who would engage in the contest of politics. A history of the usage of the concept might well be undertaken. What relationship can be traced between the public interest and ideas of the general welfare or the national interest? Have significantly different shades of meaning or emphasis occurred? Moreover, international civil servants have yet to classify the public or publics they serve and the interests to which their energies are dedicated. Many of these problems can currently be examined in the new “modernizing“countries where officials are uncertain of their status and their standards.
While a civil servant may feel that the public interest has been served if he follows the inner check of conscience or the course dictated by the highest technical or scientific standards of his profession, the problem of responsibility is not thereby resolved. The community’s values are also involved in the public interest: public debate, discussion by the press, and legislative action or judicial intervention may be called for before an equilibrium is reached that appears to satisfy the articulate elements. There can obviously be no definitive adjustment “in the public interest“but rather a temporarily acceptable accommodation of interests and values. In this process of interaction there is opportunity for innovation and creativity and the public interest may be newly forged. The frontiers of scientific inquiry and problems of foreign aid in exotic cultures, for example, confront civil servants (and military officers) with necessities and opportunities for seeking fresh solutions for policy problems and unprecedented courses for governmental decision and activity.
A fresh perspective is gained if the public interest concept is viewed against the conditions that obtain in the developing countries. The problem of governance begins in the identification and articulation of interests. In traditional societies the peasant is a spectator or a pawn rather than a self-conscious participant. In the absence of effective interest groups, the charismatic leader rather than the politician qua broker has full opportunity. An underdeveloped society by definition lacks a well-defined infrastructure, and leaders accordingly are prone to make emotional appeals to a mass public and to stimulate nationalistic sentiments. Moreover, problems are not met through legal processes and administrative procedures of an essentially rationalistic character. Governmental sanctions are to be found in custom or in the will of the ruler or the authority of a dominant class rather than in appeals to the public interest. The ruler is the symbol or expression of power; governance is not thought of as a process of formulating issues and of analyzing, negotiating, manipulating, and adjusting special interests to reach generally acceptable outcomes and thereby to articulate the public interest. As Lucian Pye writes:
Although in transitional societies there is generally a somewhat greater awareness of the potentialities of politics as a means of rationally solving social problems than there is in traditional systems, the expressive aspects of politics usually continue to occupy a central place in determining the character of political behavior. The peculiar Western assumption that issues of public policy are the most important aspect of politics, and practically the only legitimate concern of those with power, is not fully accepted in non-Western politics. Indeed, in most non-Western societies the general assumption is not that those with power are committed to searching out and solving problems, but rather that they are the fortunate participants in an exciting and emotionally satisfying drama. (1962, pp. 28-29)
Lippmann has argued (1955, p. 136) that “the art of governing well has to be learned. If it is to be learned, it has to be transmitted from the old to the young, and the habits and the ideas must be maintained as a seamless web of memory among the bearers of the tradition, generation after generation.”
New nations, for example in Africa, need governmental institutions to provide justice and order. They need wise public policy to provide education, employment, and social welfare services for their rapidly growing populations. Here are newly enfranchised voters aspiring to the fruits of modernity but arriving at the status of citizenship without the historical experience or traditions out of which grew the polities of the West. Can the concept of the public interest be introduced; or can these new societies get along without such a unifying and disciplining concept? One answer offered is the theory of “one party rule.“Loyalty to the leader of a single party can be quickly though not always permanently imposed, as Nkrumah and many other leaders have demonstrated. Acceptance of the public interest as a guiding belief would mean restraint on the ambitions of politicians and limits to the demands of the electorate.
In the developing countries, as industry advances, problems of administrative discretion can emerge, but whether the public interest will become an influential concept is uncertain. Will the civil service be motivated to serve the public? Will the courts be called upon to bring large economic enterprises within their jurisdiction? Will a recognition of individual rights requiring adjudication between adversary parties lead judges to apply criteria of public interest? Will the ties of kinship or loyalty to village tribe, community, or region permit an awareness of the larger configuration of “public“? Will the acceptance of tradition stand in the way of the rational pursuit of “interest“? Does the concept strengthen nationalism? Dictatorship?
The answers to such questions will determine whether the term public interest has a universal applicability or whether it will remain a feature of Western jurisprudence and political thought.
The rule of law, due process, a free press, a loyal opposition, and the public interest are all valueladen concepts the limits and substance of which are difficult to define with precision, but all are significant in the maintenance of democratic government. Sport without the idea of fair play would lose zest—so, too, politics bereft of appeal to the public interest. The task of the umpire, in both situations, is probably made easier psychologically by reliance on such abstractions; but the responsibility of decision is in no way lessened, and the readiness of participants to question and of other observers to object remains.
The public interest is a concept that leaves open the way to change, as general acceptance for new policies is won and officials remain accountable for their decisions. Since there are many ways for seeking public acceptance and for safeguarding administrative responsibility within a democratic polity, it is doubtful that anything would be gained by insistence upon a precise definition of the public interest.
Bailey, Stephen K. 1962 The Public Interest: Some Operational Dilemmas. Pages 96–106 in Carl J. Fried-rich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Bodenheimer, Edgar 1962 Prolegomena to a Theory of the Public Interest. Pages 205–217 in Carl J. Fried-rich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Cohen, Julius 1962 A Lawman’s View of the Public Interest. Pages 155–161 in Carl J. Friedrich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Colm, Gerhard (1960) 1962 The Public Interest: Essential Key to Public Policy. Pages 115–128 in Carl J. Friedrich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Downs, Anthony 1962 Public Interest: Its Meaning in a Democracy. Social Research 29:1-36.
Frankel, Charles 1962 The Democratic Prospect. New York: Harper.
Frankfurter, Felix (1930) 1964 The Public and Its Government. Boston: Beacon.
Friedrich, Carl J. (editor) 1962 The Public Interest. Nomos No. 5. New York: Atherton.
Green, Thomas Hill (1882) 1960 Lectures on the Principles of Political Obligation. London: Longmans. → Published posthumously.
Herring, Pendleton 1936 Public Administration and the Public Interest. New York: McGraw-Hill.
Leys, Wayne A. R.; and Perry, Charner M. 1959 Philosophy and the Public Interest. Chicago: Committee to Advance Original Work in Philosophy.
Lippmann, Walter 1955 Essays in the Public Philosophy. Boston: Little.
Maciver, Robert M. (1947)1963 The Web of Government. New York: Macmillan.
Meyerson, Martin; and Banfield, Edward C. 1955 Politics, Planning, and the Public Interest: The Case of Public Housing in Chicago. Glencoe, 111.: Free Press. → A paperback edition was published in 1965.
Montgomery, John D. 1962 Public Interest in the Ideologies of National Development. Pages 218–226 in Carl J. Friedrich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Pye, Lucian 1962 Politics, Personality, and Nation Building: Burma’s Search for Identity. New Haven: Yale Univ. Press.
Schubert, Glendon A. 1957 The Public Interest in Administrative Decision-making: Theorem, Theosophy, or Theory? American Political Science Review 51: 346-368.
Schubert, Glendon A. 1961 The Public Interest: A Critique of the Theory of a Political Concept. New York: Free Press.
Schubert, Glendon A. 1962 Is There a Public Interest Theory? Pages 162–176 in Carl J. Friedrich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
Sorauf, Frank J. 1957 Public Interest Reconsidered. Journal of Politics 19:616-639.
Sorauf, Frank J. 1962 The Conceptual Muddle. Pages 183–190 in Carl J. Friedrich (editor), The Public Interest. Nomos No. 5. New York: Atherton.
While there is no one public interest, most political philosophers credit some notion of collective welfare. Examples include French philosopher Jean-Jacques Rousseau’s “general will,” U.S. president James Madison’s “collective good,” or English philosopher Jeremy Bentham’s “greatest good for the greatest number.” In debate, public interest is often invoked when a faction’s influence harms the larger group. As James Madison defined it in Federalist Paper number 10, the tenth Federalist Paper in a series of published articles arguing for the ratification of the U.S. Constitution:
By a faction, I understand a number of citizens, whether amounting to a majority or a minor-ity…united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two core conceptions of the public interest, organic/republican and utilitarian/liberal. In Western philosophy, “republican” societies regard the state or society as a collective entity, possessing virtues and commanding citizen obligations that dominate individual or self-interested objectives. “Liberal” conceptions of public interest focus on individual welfare or value, and invoke some assumption justifying interpersonal comparisons of value or satisfaction.
Political theorists couple normative conceptions of public interest with claims about institutional design. One extreme is the Rousseau-Marx approach (named after Rousseau and German political philosopher Karl Marx), which suggests an objective underlying definition of the good or virtuous society. According to this approach, any action or policy that violates this objective “public interest” is a mistake, or even a crime against citizens.
Near the other extreme are conceptions of the public interest that credit consensus, appealing not to objective values but to deliberation. In varying degrees this view is embodied in the writings of John Rawls, Jürgen Habermas, and James Fishkin. This approach claims that reasonable people can achieve consensus (or near consensus) on public policy problems through deliberation.
But some would go further. “Agonistic pluralists,” such as Chantal Mouffe, require only that citizens disagree peacefully. Policy debates, in this view, are value-laden and emotional, so requiring consensus causes violence. The democratic process is the alternative to violence, an arena in which fundamental differences can be aired and discussed, preventing difference from hardening into enmity and violence. In this regard, it is participation and democratic engagement, in and of itself, that is the public interest.
Another approach, rational choice theory, is consequentialist and utilitarian. The public interest can only be defined, in this tradition, in terms of the Pareto criterion. The Pareto principle is essentially unanimity: Given a status quo policy A, new policy B serves the public interest if, but only if, all members of the society prefer B to A. A weaker comparison would allow that many citizens are indifferent between A and B, but at least one prefers B to A, and none prefer A to B.
Other proponents might extend valid public interest arguments to include the work of welfare economists John Hicks and Nicholas Kaldor. Their “compensation,” or “potential Pareto” principle, defines the public interest in terms of monetized gains and losses. If some citizens prefer new policy B to status quo A, but others prefer A to B, then the Pareto criterion does not apply. But the policy authority can still discover the public interest, adding up the gains (how much would those who prefer B sacrifice to effect the change?) and the losses (how much would those who prefer the status quo offer to block the change?). If the summed gains exceed the summed losses, then the gainers can compensate the losers and still leave some surplus. Disagreement becomes unanimity.
Cost-benefit analysis uses this reasoning to derive the public interest. So does the use of eminent domain, which governments use to take private property in the public interest. The difference is that compensation must be paid in the case of eminent domain, where no compensation is needed in a cost-benefit analysis. Both procedures are as close as we can get to implementing Bentham’s “greatest good for the greatest number.”
Public choice theory is a strand of rational choice that makes two more assumptions about the formulation of the public interest. First, the public interest is defined in utilitarian terms. Second, all participants, including public officials, pursue their perception of their private interest. But the public officials respond to incentives created by institutions.
For example elected officials must seek reelection, and therefore serve voters, though out of self-interest, not love for the voters. Institutional design is the key to creating this coincidence of public interest and private action of officials. In Federalist Paper number 51 the authors wrote, “Ambition must be made to counteract ambition.” A federal system, with separation of powers, reasoned Madison and coauthor Alexander Hamilton in this essay, transforms private interest to coincide with the public interest.
Kenneth Arrow’s famous “Impossibility Theorem,” introduced in his 1963 book Social Choice and Individual Values illustrates a problem with any specification of public interest in terms of individual preference “lists.”Arrow’s result, which shows that only dictatorship satisfies the other normative criteria he specifies for ethically defensible government, raises important questions about the coherence of democracy as a means of discovering the public interest. But since the Arrow argument affects only disaggregated utilitarian conceptions of the public interest, organic conceptions might still be defended on some other grounds.
An alternative approach to public choice theory is to begin with the psychological determinants of citizen conceptions of the public good, and to build upon this foundation a more psychologically oriented theory of the actions of public officials based on conceptions of community and the obligations of health professionals to serve the public interest. This view can be found in a large number of different public health disciplines, but it is most coherently developed in community psychology, as outlined in Julian Rappaport’s 1977 book Community Psychology: Values, Research, and Action. Some psychologists practicing “critical community psychology” argue that much preventable human suffering can be traced to policies and institutions that violate and suppress the public interest. Treating individual psychopathologies, in this view, is a red herring. The only effective “treatment” is to work for social justice, ameliorating disparities and transforming institutions to make such disparities less likely to reappear. Thus, knowledge of the public interest imposes an obligation on health professionals to work outside of their narrow specialties toward social change.
How might one tell if a policy serves the public interest, an official’s private interest, an organized group’s interest, or something else? The answer is contingent on many things, as Arthur Denzau and Michael Munger showed in their 1986 article “Legislators and Interest Groups: How Unorganized Interests Get Represented.” The essential responsiveness of a political system to the public interest depends on legislator goals, agency professionalism, the private influence of organized groups, and the competitiveness of the electoral system. But public interest also is contingent on citizens’ sophistication. If citizens know their private interests, and understand how policies affect those interests, then competitive elections push policy close to the public interest, at least in utilitarian terms. But if citizens do not understand their private interests, or if complex policies are misunderstood or misrepresented in public discourse, or even if elections are not competitive due to campaign finance or party organization barriers, public policy will diverge sharply from the public interest in favor of policies favored by narrow special interests.
SEE ALSO Arrow Possibility Theorem; Bentham, Jeremy; Cost-Benefit Analysis; Habermas, Jürgen; Interest Groups and Interests; Pareto Optimum; Philosophy, Political; Preferences; Psychology; Public Interest Advocacy; Public Policy; Public Sector; Public Welfare; Rational Choice Theory; Rawls, John; Rousseau, Jean-Jacques; Utilitarianism; Welfare Economics
Arrow, Kenneth. 1963. Social Choice and Individual Values. 2nd ed. New York: Wiley.
Denzau, Arthur, and Michael Munger. 1986. Legislators and Interest Groups: How Unorganized Interests Get Represented. American Political Science Review 80: 89–106.
Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Trans. William Rehg. Cambridge, MA: MIT Press.
Jay, John, Alexander Hamilton, and James Madison. 1788. The Federalist #51: The Structure of the Government Must Furnish the Proper Checks and Balances between the Different Departments. The New York Packet, February 8.
Kaldor, Nicholas. 1939. Welfare Propositions in Economics. Economic Journal 69: 549–552.
Mouffe, Chantal. 2000. The Democratic Paradox. New York: Verso.
Rappaport, Julian. 1977. Community Psychology: Values, Research, and Action. New York: Holt, Rinehart, and Wilson.
Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Belknap Press of Harvard University Press.
Rousseau, Jean-Jacques. 1947. The Social Contract. New York: Hafner. (Orig. published in 1762.)
Public Interest Law
PUBLIC INTEREST LAW
PUBLIC INTEREST LAW. The term "public interest law" describes a type of practice of law, carried out under the auspices of a nonprofit organization, in which the focus of the lawyer's work is the issues presented. It contrasts with civil and criminal legal aid or defense where the focus is on achieving justice for the individual client. Most of the work in public interest law is in civil rather than criminal cases, although the latter sometimes present issues that have broad application, such as a First Amendment defense to a charge of failing to obtain a permit for a demonstration.
The first group that can be said to have practiced public interest law is the American Civil Liberties Union, which was founded in 1920. Its principal mission has been to safeguard individual liberties, largely those found in the Bill of Rights. It has local offices in every state, and it employs both staff attorneys and volunteer lawyers to advance its goals. Its fidelity to the value of civil liberties, regardless of who is asserting them, is illustrated by its decision to defend the nazis who were denied a permit for a parade in Skokie, Illinois, where there was a very substantial Jewish population, including Holocaust victims.
Another early practitioner of public interest law is the National Association for the Advancement of Colored People, which undertook a systematic, long-term project to eliminate segregation in education and public accommodations through the court system. It took a very strategic approach, taking on the easiest cases first, and working slowly toward its major victory in Brown v. Board of Education (1954), which outlawed segregated schools.
Following these models, other organizations began to use similar approaches, focusing particularly on the failures of federal agencies to protect the public from the companies that Congress had told the agencies to regulate. Until that time, only a regulated company could go to court to challenge an agency's decision, which increased the likelihood that the agency would side with the industry. In the late 1960s, the courts accepted the notion that the intended beneficiaries of a law should also be able to sue the agency that enforces it, which made it possible for public interest groups to use the judicial system to redress the balance that had been created by agency capture by the regulated industries. Among the major interests that took advantage of this change in access to the courts were radio and television listeners, as well as consumers who were unhappy over the regulation of products ranging from unhealthy food and unsafe drugs to defective and risky consumer goods. In addition to direct challenges to an agency decision, the passage of the Freedom of Information Act, which makes available agency records to the public (with certain exceptions), and other related open-government laws has also been a source of significant public interest pressure on the agencies.
Perhaps the most significant area of new public interest law was the environment. Some of this growth was due to the recognition of a right to sue under existing laws, but much of it was based on new substantive laws governing pesticides, clean air, and clean water, plus the National Environmental Protection Act, which, for the first time, required all federal agencies to consider the environmental impacts of their decisions. Although much of the environmental work involved the courts, the efforts of environmental groups (and other public interest organizations as well) also focused on what the agencies were doing in reaching their decisions, as well as on how Congress writes and amends the law.
Federal agencies have not been the exclusive concern of public interest lawyers. They have worked in a wide variety of areas, such as reforming the legal and other professions; preventing abuses in class actions; protecting rights secured by the First Amendment in a variety of contexts; assisting dissidents in labor unions who are denied federally guaranteed rights by union leaders; promoting campaign finance reform; and protecting the rights of victims to sue companies that have injured them.
Because most clients of public interest organizations cannot afford to pay for legal services, and because most public interest cases do not involve claims that produce a sum of money from which a lawyer can take a portion as a fee, other methods must be used to fund public interest law firms. These include membership dues and other contributions, foundation grants, and, under certain statutes, awards of attorneys fees paid by the defendant. By contrast, legal aid for those accused of crimes is paid for by the government (although often at very low rates), and civil legal aid is partially government funded and partially supported by individuals and foundations. Raising money for public interest law firms is a major barrier to increasing their activities and in competing for legal talent in a marketplace where law firm salaries are greater by a factor of three or more.
Aron, Nan. Liberty and Justice for All: Public Interest Lawin the 1980s and Beyond. Boulder, Colo.: Westview Press, 1989.
Baum, Robert A. Public Interest Law: Where Law Meets Social Action. New York: Oceana Publications, 1987.
Epstein, Lee, et al., eds. Public Interest Law: An Annotated Bibliography and Research Guide. New York: Garland, 1992.
Public Interest Law
PUBLIC INTEREST LAW
Public interest law is the work done by lawyers on behalf of poor individuals, unrepresented interests, and the general good. Public interest law services are usually provided at no cost to the beneficiaries, who are either too poor to pay or are not organized in ways that would allow them to retain lawyers. Public interest lawyers work in the courts, agencies, legislatures, and also through the media and community organizations. Although only a small number of American lawyers participate in these activities, public interest law reflects the American legal profession's commitment to values not fully served by the normal fee-for-service system of legal practice.
There is an intimate relationship between public interest law and the Constitution. First, the governmental structure created by the Constitution makes public interest law both necessary and possible. Second, without public interest law, many constitutional protections might be ineffective. Finally, the broader American tradition of constitutionalism depends on institutions like public interest law.
The governmental structure created by the Constitution makes legal advocacy important for the pursuit of many individual and collective interests. United States government is one by representation, not by direct participation. Although, in theory, citizens are supposed to be knowledgeable about public issues and elected representatives are supposed to take account of the interests of all constituents, in fact, most decisions are made in remote arenas and officials often are not aware of all affected interests. As a result, direct advocacy by professionals will make a difference in outcomes. If all such advocacy must be purchased in the marketplace, the system will be skewed toward the interests of the "haves." The presence of public interest advocates, at least to some degree, offsets marketplace bias.
The special role our written Constitution plays in American political life makes subsidized advocacy all the more important. Americans resolve many fundamental issues—from slavery to reproductive freedom—through consitutional litigation. If free legal services are not sometimes available in these struggles, the results can be seriously skewed.
Although the constitutional structure thus makes public interest law necessary, it also helps make it possible. Of course, there is a constitutional right to counsel in criminal cases. In addition, several constitutional protections have been given to public interest lawyers. In naacp v. button (1963) the Supreme Court ruled that litigation on behalf of a disadvantaged group was constitutionally protected speech and overturned Virginia's efforts to penalize NAACP lawyers. This ruling was extended by In re Primus (1978), where the Court made clear that nonprofit groups representing protected interests were exempt from normal bans on solicitation by lawyers.
The rights granted by the Constitution usually are not self-enforcing. Without legal representation, many would remain a dead letter. Protections for criminal defendants remain mere paper promises unless the accused are represented by competent lawyers. Because of the serious consequences of a deprivation of these rights, the Constitution itself guarantees counsel. But there are many other areas in which public interest law, although not constitutionally guaranteed, is equally essential. Many efforts to curb free speech, for example, would have gone unchallenged if public interest groups like the american civil liberties union were not available to defend this interest. The guarantee of equal protection of the law might still sound completely hollow to African Americans if the subsidized services of NAACP lawyers and other public interest advocates were not available.
Public interest law spans the political spectrum. Some of the more notable liberal public interest law groups include the ACLU, the naacp legal defense and educational fund, and the Commission on Law and Social Action of the american jewish congress. Public interest law groups of a conservative persuasion include the Pacific Legal Foundation, which brings suits against governmental regulation; the Rutherford Institute, which litigates cases involving equal access for religious groups and defends nonviolent protestors in the antiabortion movement; and the Washington Legal Foundation, which pursues a grab bag of causes, including judicial review of redistricting and lawsuits by crime victims.
A major aspect of American political culture is our "constitutionalism": the belief in higher values protected by the Constitution. Often, marginal and subordinated groups have looked to higher law and constitutional values as guides and inspiration for their struggle for inclusion in the American commonwealth. Women, blacks, and other groups have looked beyond existing law and institutions to a penumbra of constitutional values that, they believed, entitled them to fuller participation in economic, social, and political life. Public interest law, as idea and institution, is a reflection of this faith in the redemptive power of law and legal institutions. To be sure, law does not always fulfill the promises Americans put in it. Public interest law is often weak and ineffective; legal solutions may not lead to real gains. But public interest lawyers have won real victories and made some difference for subordinated groups. As long as America's basic political institutions remain unchanged, public interest law will be essential: it ensures that forces of the market and status quo do not overshadow democracy and constitutional values and helps preserve constitutionalism as a real force in our political life.
Louise G. Trubek
Aron, Nan 1988 Liberty and Justice for All: Public Interest Law in the 1980s and Beyond. Boulder, Colo.: Westview Press.
Chavkin, David F. 1987 Public Interest Advocacy. In R. Janoskik, ed., Encyclopedia of the American Judicial System: Studies of the Principle Institutions and Processes of Law, Vol. 2. New York: Scribners.
Anything affecting the rights, health, or finances of the public at large.
Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility is regulated in the public interest because private individuals rely on such a company for vital services.