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Law and Contemporary Problems Schlanger Essay Jail Strip Searches Patterns and Participants 2007

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Abstract: This essay, for an issue of Law & Contemporary Problems in honor of the work and
influence of Marc Galanter, looks at a small case-type, jail strip-search litigation, and at its
participants, to analyze its internal dynamics and what they have to teach us about the relation
between litigation and society. Among the unusual features of these cases is that many different
kinds of lawyers work on them—employees of public interest organizations; large law firm
lawyers, often working pro bono, with a cooperating relationship with such a public interest
organization; lawyers with a private prisoners’ rights or police misconduct practice; and
lawyers with a more varied or general class-action practice. The differences in lawyer type do
not, however, demonstrably correspond to differences among case outcomes. However,
interviews did surface some marked variation, by lawyer type, in the lawyers’ orientations
towards their own fees, the threat of adverse legal change, and the appropriate response to such
a threat.
Among Marc Galanter’s many important insights is that understanding litigation requires
understanding its participants. In his most-cited work,1 Why the ‘Haves’ Come Out Ahead,2
Galanter pioneered a somersault in the typical approach to legal institutions and legal change:
Most analyses of the legal system start at the rules end and work down through
institutional facilities to see what effect the rules have on the parties. I would like to
reverse that procedure and look through the other end of the telescope. Let’s think about
the different kinds of parties and the effect these differences might have on the way the
system works.

© 2007 Margo Schlanger. Permission is granted for distribution at or below cost to prisoners or students in a

Professor of Law, Washington University in St. Louis, Thanks to the many
people who spoke or corresponded with me about their strip-search litigation: Mark Bennett, Randy Berg, John
Boston, Fay Clayton, Jennifer Duncan-Brice, Ken Flaxman, David Friedman, Howard Friedman, Harvey Gross, Bob
Herbst, Mike Kanovitz, Charles LaDuca, Alexandra Lahav (who also offered very useful comments on a draft),
Barry Litt, Mark Merin, Tom Poulton, Jan Susler, Mike Sutherlin, and Flint Taylor. Thanks, too, to my colleagues at
Washington University in St. Louis and at the Law & Society Association 2007 conference for their helpful
feedback, and, as always, to Sam Bagenstos. All remaining errors are mine.

Fred R. Shapiro, The Most Cited Law Review Articles Revisited, 71 CHI.-KENT L. REV. 751 tbl.1.


Marc Galanter, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW &
SOC’Y REV. 95 (1974). See also IN LITIGATION: DO THE “HAVES” STILL COME OUT AHEAD (Herbert M. Kritzer &
Susan S. Silbey eds. 2003).

Id. at 97.


The interested parties—plaintiffs, defendants, and their counsel—are key, Galanter suggests.
Indeed, this is one of the recurring themes of his work. If we wish to understand legal change, he
warns us not to “exclude[] or marginalize[]” “[s]ources of legal change other than changes in the
rules . . . (for example, changes in the number, organization, or style of lawyers and changes in
the expectations, organization, or capabilities of litigants).”4 Differences among litigants and
lawyers mean that “the same rule change may bring about quite varied changes of practice in
different settings.”5 More generally, Galanter urges us to resist “identifying ‘law’ with
doctrine”;6 law, he counsels, must not be “viewed as a thing apart from practice or action,” nor
“doctrinal change [be] isolated from other kinds of legal change.”7 He asks us to preserve “the
richness of context—and with it the indeterminacy and wildness that is entwined with the
stability and routine of legal life.” 8 “If we want to understand legal change,” he explains, “we
will have to move further from the ambit of conventional legal analysis.”9
An additional insight, equally crucial, is that to understand litigation and legal change it is
also necessary to disaggregate litigation data, to organize it by what Galanter calls a “case
congregation.”10 Galanter explains:
These congregations are cultural categories, part of the culture of the regulars,
created by an act of labeling, that in turn intensifies interaction and mutual influence.
Labels may be shared by litigants, court officials, insurers, the legal press, academics, and
the popular press; they may be institutionalized in lawyers’ networks, in publishers’

Marc Galanter, Conceptualizing Legal Change and Its Effects: A Comment on George Priest’s “Measuring
Legal Change”, 3 J. L. ECON. & ORG. 235, 236 (1987) [hereinafter Galanter, Conceptualizing Legal Change].

Id. See also Galanter, The Radiating Effects of Courts, in EMPIRICAL THEORIES ABOUT COURTS 117, 127
(Keith O. Boyum & Lynn Mather, eds., 1983) (“The endowments that courts confer depend on the capabilities of
actors to receive, store, and use them, capabilities that reflect their skills, resources, and opportunities.”).

Galanter, Conceptualizing Legal Change, supra note 4 , at 235.




Id. at 240.




See, e.g., Marc Galanter, Case Congregations and Their Careers, 24 LAW & SOC’Y REV. 371 (1990)
[hereinafter Galanter, Case Congregations]; Marc Galanter, The Life and Times of the Big Six; Or, the Federal
Courts Since the Good Old Days, 1988 WIS. L. REV. 921 (1988).


newsletters or continuing legal education seminars; sometimes official record keepers
will adopt such categories. . . .
[Accordingly,] examination of these case congregations and their careers will
reveal something about the internal dynamics of litigation as an institution and will assist
us in constructing a more refined picture of the relation between litigation and society.

This essay follows these two strictures by looking at a small case-type, jail strip-search
litigation, and at its participants, to analyze its “internal dynamics” and what they have to teach
us about the “relation between litigation and society.” Among the interesting features of these
cases is that many different kinds of lawyers work on them—employees of public interest
organizations; large law firm lawyers, often working pro bono, with a cooperating relationship
with such a public interest organization; lawyers with a private prisoners’ rights or police
misconduct practice; and lawyers with a more varied or general class-action practice. This is
somewhat unusual; the litigation bar has, by all accounts, grown increasingly specialized over
the past several generations.12 One interesting research question, then, is which of the two sites
of analysis Galanter highlights matters more for outcomes and dynamics—the case category or
the type of plaintiffs’ lawyer. I have previously argued that plaintiffs counsel’s background and
orientation is crucial to understanding the framing and conduct of litigation.13 Here, however,


Galanter, Case Congregations, supra note 10, at 373.


As Stephen Daniels and Joanne Martin have summarized,

[O]ne of the most important innovations within the plaintiffs’ bar in the past 35 to 40 years is the
development of narrow specialization. Rather than simply specializing in plaintiffs’ practice (itself an even
earlier innovation), some lawyers concentrate on a particular type of case, such as medical malpractice,
products liability, airplane disasters, or car wrecks. Some are so specialized that virtually their entire
practice is devoted to a very specific type of case within an already narrow category. For instance, a lawyer
may develop a specialization within medical malpractice handling “bad baby” cases or brain injury cases.
Within products liability a lawyer may specialize in breast implants or phen-fen or tire blow-out cases and
so on. Additionally, some lawyers specialize procedurally rather than substantively by focusing on
litigation itself.
Stephen Daniels & Joanne Martin, “We Live on the Edge of Extinction All of the Time:” Entrepreneurs,
Innovation, and the Plaintiffs’ Bar in the Wake of Tort Reform, in LEGAL PROFESSIONS: WORK, STRUCTURE AND
ORGANIZATION 149, 156 (Jerry Van Hoy ed., 2001).

See Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L.
REV. 1994, 2014–26 (1999) [hereinafter Schlanger, Beyond the Hero Judge].


differences among cases brought by different kinds of lawyers, while present, are subtler than
might be expected.
In November 2003, officials from dozens of Western Hemisphere countries traveled to
Miami for a meeting on the Free Trade Area of the Americas. Thousands of protestors came, as
well; several hundred were arrested, most on misdemeanor charges such as failure to obey police
orders to disperse. One of them was Judith Haney, a San Francisco resident, about fifty years
old, visiting Miami for the protest. After the protesters were booked, officers at the Miami PreTrial Detention Center followed their ordinary practice and strip-searched the women,
conducting visual body-cavity inspections. Haney, who was eventually the lead plaintiff in a
class action that ended routine strip searches of female prearraignment minor offenders in
Miami, later described the search:
After I removed all my clothes, the guard told me to turn around, bend all the way over,
and spread my cheeks [which] exposed my genitalia and anus to a complete stranger,
who had physical authority over me, so that she could visually inspect my body
cavities. . . . The guard’s next set of instructions were to squat—and then—to hop like a

All charges against Haney were eventually dismissed.
The Supreme Court has said very little about the lawfulness of jail strip searches. In Bell
v. Wolfish, in 1979, the Court held that the Fourth Amendment standard of “reasonableness” did
not forbid a jail to conduct routine visual body-cavity searches for pretrial detainees after contact
visits. No individualized probable cause was required.15 The Court has not shed any subsequent


Judy Haney, Statement to the Commission on Safety and Abuse in America’s Prisons (Apr. 19, 2005),
available as document JC-FL-0012-0007 at the Civil Rights Litigation Clearinghouse,
[hereinafter Haney Statement].

Bell v. Wolfish, 441 U.S. 520, 558–59 (1979).


light on the subject. Since the 1980s, the federal courts of appeals have repeatedly and without
exception held that the Fourth Amendment forbids police and jail authorities to strip search all
misdemeanant arrestees prior to arraignment.16 Nearly all the cases hold that officials can
perform visual body-cavity searches only if they have a “reasonable suspicion” that the subject
of the search might be hiding contraband; a few of the cases take a different doctrinal route to the
same outcome.17
In the Eleventh Circuit, where Miami is located, the court of appeals ruled on a closely
related issue for the first time in 1992, in a case upholding a jail’s strip search of a juvenile. 18
The court held that the standard for evaluating the search’s constitutionality was whether the jail
officers had a “reasonable suspicion . . . that the juvenile is concealing weapons or
contraband.”19 A few years later, the court stated that it would be unconstitutional for a jail to
require that each prisoner be strip searched, before being placed in a cell, without any


See Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001);
Savard v. Rhode Island, 320 F.3d 34 (1st Cir. 2003); Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57 (1st Cir.
2003); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001); Logan v. Shealy,
660 F.2d 1007 (4th Cir. 1981); Amaechi v. West, 237 F.3d 356 (4th Cir. 2001); Stewart v. Lubbock County, 767
F.2d 153 (5th Cir. 1985); Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir. 1988); Williams v.
Kaufman, 352 F.3d 994 (5th Cir. 2003); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989); Mary Beth G. v. City of
Chicago, 723 F.2d 1263 (7th Cir. 1983); Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir. 1995); Jones v. Edwards, 770
F.2d 739 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), overruled on other grounds by HodgersDurgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999); Kennedy v. Los Angeles Police Department, 901
F.2d 702 (9th Cir. 1990); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Chapman v. Nichols, 989 F.2d 393 (10th
Cir. 1993); Cottrell v. Kaysville City, 994 F.2d 730, 734 (10th Cir. 1993); Justice v. City of Peachtree City, 961 F.2d
188 (11th Cir. 1992); Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000); Wilson v. Jones, 251 F.3d 1340 (11th Cir.
2001); Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005); Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007). There is
no appellate case law in the Third Circuit or the D.C. Circuit, but in both, district courts have issued opinions similar
to the appellate ones cited.

Compare, e.g., Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (articulating “reasonable suspicion”
standard), with Logan v. Shealey, 660 F.2d 1007, 1009-10 (4th Cir. 1981) (balancing the need for the particular
search against the invasion of privacy rights, and holding “an indiscriminate search policy routinely applied to
detainees such as [plaintiff] along with other detainees cannot be constitutionally justified simply on the basis of
administrative ease in attending to security considerations”).

Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 1992).


Id. at 193.


individualized evaluation of the likelihood of the presence of contraband.20 Yet in the past
several years, several Eleventh Circuit opinions have expressed skepticism about that court’s
own precedent in this area. In an en banc 2003 opinion, Judge Edmondson wrote for the Eleventh
Circuit that “Most of us are uncertain that jailers are required to have a reasonable suspicion of
weapons or contraband before strip searching—for security and safety purposes—arrestees
bound for the general jail population.”21 The court found that the issue was not properly before it,
and so did not resolve it. In a detailed special concurrence, Judge Carnes (joined by two other
judges) explained:
My present view is that reasonable suspicion is not necessary for a strip search of an
arrestee who is to be detained in the general jail population, if that search is conducted
pursuant to a generally applicable, reasonable jail policy designed to promote safety and
security by guarding against the smuggling of weapons and other contraband into a
detention facility. This view is contrary to the current circuit law on the subject, at least
insofar as misdemeanor arrestees are concerned.22

The concurrence focused on the dangerousness of jails to justify this view:
The need for strip searches at county jails is not exaggerated. Employees, visitors, and
those who are themselves detained face a real threat of violence, and administrators must
be concerned on a daily basis with the smuggling of contraband on the person of those
accused of misdemeanors as well as those accused of felonies.23

A handful of other court of appeals opinions include similar discussions.24 And this makes sense,
considering the recently increasing conservatism of the federal appellate bench.25 Likewise,


Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000).


Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc).


Id. at 1284 (Carnes, J., concurring specially).

Id. at 1291.


See Hicks v. Moore, 422 F.3d 1246, 1248 (11th Cir. 2005) (“Because we are overcome by this Circuit’s
precedent, we must agree . . . that . . . a general practice [of strip searching all detainees to be placed in general jail
population regardless of reasonable suspicion], for now at least, is an unlawful basis for . . . searches.”); Powell v.
Barrett, 2007 WL 2386610 (11th Cir. 2007) (expressing “uncertainty about . . . precedent holding that strip searches
of arrestees to be placed in the jail’s general population absent reasonable suspicion, violate the Fourth
Amendment”); Shain v. Ellison, 273 F.3d 56, 72 (Cabranes, J., dissenting in part) (expressing dissatisfaction with
circuit precedent requiring “reasonable suspicion,” and arguing that the appropriate standard would by contract
“envision[] a flexible , multifactor inquiry,” that would more easily accommodate cavity search policies).


given the Roberts Court’s emerging record in civil rights cases,26 the Supreme Court seems
likely to view this issue with a jaundiced eye.
For now, however, the case law is uniformly against what are usually called “blanket
strip search” policies. A publication of the American Jail Association, Jail and Prison Legal
Issues: An Administrator’s Guide, even has the heading “Arrestee Strip Searches: There Are No
Loopholes.”27 Its author, Bill Collins, summarizes the current state of the law as favoring
plaintiffs in these cases:
Despite the huge weight of authority regarding arrestee strip searches, one continues to
hear of jail administrators searching for loopholes to the reasonable suspicion rule. In
weighing whether to try to find a loophole in the traditional “reasonable suspicion” rule, a
jail policy-setter needs to recognize several things. Legal research fails to reveal any
loopholes. . . . So, pushing the limits of the traditional rule can be costly for the individual
policy-setter, for the city or county, and perhaps even for officers carrying out the

During the winter of Judith Haney’s Miami arrest, the costs of blanket strip-search
policies were much in evidence in her home state of California. The topic was particularly salient
in San Francisco, at least among activists. Just days before the Miami trade meeting, the San
Francisco Chronicle ran a 3800-word front-page article investigating and criticizing the San
Francisco jails’ strip-search practices.29 And Haney was herself friendly with Mary Bull, the
named plaintiff in Bull v. City and County of San Francisco, the class-action lawsuit challenging


For an estimate of the aggregated ideological predispositions of the judges of each federal court of
appeals, as the makeup of those benches has changed over time, see Lee Epstein et al., The Judicial Common Space,
23 J.L. ECON. & ORG. 303, 312 fig.4 (2007). The published figure extends only to 2000, but the authors have made
available data up through 2006 at (last visited February 10,
2008). This article’s point depends on the web-posted data.

See, e.g., Simon Lazarus, The Most Activist Court, AM. PROSPECT, June 29, 2007, (describing recent decisions of the Roberts

COLLINS, supra note Error! Bookmark not defined., at 227.


Id. at 231–32.


See Elizabeth Fernandez & Stephanie Salter, Stories of Anguish: Jail has Man Disrobe to Photograph His
Tattoos, S.F. CHRON., Nov. 16, 2003, at A1.


pre-arraignment strip-search practices that prompted that article.30 That case had been filed just
months before, and once the federal district court allowed it to go forward as a class action, the
San Francisco jails promptly amended the relevant policies.31 In fact, Mary Bull was also the
first-named plaintiff in a similar case in Sacramento, Bull v. County of Sacramento. In the
Sacramento case, the state court had held earlier in the same year that state statutory law forbade
the county’s blanket policy of stripping everyone admitted to the jail, regardless of the charge
against them or the absence of reasonable suspicion that they might be carrying contraband. (The
Sacramento jail soon changed its policy, and the case settled in June 2004 for $15 million
dollars.32) As in Miami, the San Francisco and Sacramento cases originated in political
protesters’ arrests. Moreover, it had only been a year since the settlement of a much-publicized
Los Angeles jail strip-search case involving women protestors for $2.75 million,33 and only a


Bull v. City and County of San Francisco, No. 3:03-CV-01840 (N.D. Cal. filed Apr. 23, 2003). The case is
currently pending on appeal of the district court’s grant of partial summary judgment to the plaintiffs. Bull, 2006
WL 449148 at *1. Many of the crucial unpublished documents—the docket and complaint, among others, along
with a summary of the litigation—are available at the Civil Rights Litigation Clearinghouse, (search for case JC-CA-0007 under “Clearinghouse ID”). Opinions in the case case
are also available at 2003 WL 23857823 (Oct. 27, 2003) (order granting defendants’ motion to compel production of
documents and denying motion for protective order), and 2005 WL 40072 (Jan. 5, 2005) (order granting plaintiffs’
second motion to compel responses to interrogatories and request for sanctions).

Elizabeth Fernandez & Stephanie Salter, S.F. Jails Ease Up on Strip-Search Procedures: Lawsuits, Public
Outcry Bring Effort to Comply with State Law, S.F. CHRON., Jan. 13, 2004, at A1.

Bull v. County of Sacramento, 01-AS-01545 (Sacramento County Super. Ct. filed March 13, 2001). Some of
the key documents, including the settlement agreement and claim forms, are available at the Civil Rights Litigation
Clearinghouse, (search for case JC-CA-0043 under “Clearinghouse ID”). Under the
settlement, the lawyers received $3 million, class administrators received $500 thousand, $410 thousand was split
among the seven named plaintiffs, and the rest was distributed to the approximately 4000 class members who
submitted claim forms. See also Denny Walsh, Judge OKs Strip-Search Accord: Historic Multimillion-Dollar Deal
Settles Jail Lawsuits, SACRAMENTO BEE, at B1 (Oct. 23, 2004).

Musso v. County of Los Angeles, BC 249462 (L.A. Super. Ct., filed Jan. 18, 2001). Information is available
at the Civil Rights Litigation Clearinghouse, (search for case JC-CA-0021 under
“Clearinghouse ID”); see also Sue Fox, $2.75 Million Proposed for Cyclists Arrested in Protest, L.A. TIMES, Mar.
25, 2003, at B1.


few years since Los Angeles had settled a larger strip-search case for $27 million, the county’s
largest settlement ever.34
So Haney was familiar with the jail strip-search issue, and she was convinced even as she
was being searched that her treatment was unlawful—a belief she says was strengthened when
she was released (thirty-five hours after her arrest) and discussed the matter with her fellow
protesters who were men, discovering that none of them had been strip searched. When she went
home to California, she soon got in touch with Mark Merin, a civil rights lawyer in Sacramento
who was counsel in both the San Francisco and Sacramento cases.35 Merin was beginning to
make something of a specialty of strip-search class actions, the publicity from the Sacramento
case, in particular, garnering him phone calls not only from protestors but from other people
arrested and strip searched. In fact, Merin filed six juvenile-detention and jail strip-search class
actions in 2004 (and has filed another nine since then), all but Haney’s case in northern
Merin needed a Florida lawyer to work with, and he brought in Randall Berg, director of
the Florida Justice Institute, an organization well known for its work on behalf of prison and jail
inmates. They filed the case in March 2004 as a (putative) class action, with three class
representatives—all female protesters arrested at the free trade demonstrations; additional, and
more typical, female arrestees were added two months later.37 The complaint, captioned Haney v.


Williams v. County of Los Angeles, CV 97-03826-CW (C.D. Cal, Dec. 5, 2002) (order regarding settlement,
release, and dismissal of claims in class action), available as document JC-CA-0033-0005 at the Civil Rights
Litigation Clearinghouse,; Troy Anderson, Ex-Inmates Win Record County Award,
[L.A.] DAILY NEWS, Aug. 15, 2001, at N1.

Haney Statement, supra note 14, at 4.


For a list of cases, search for “Merin” at the Civil Rights Litigation Clearinghouse,

See Complaint at 2, No. 1:04-cv-20516 (S.D. Fl. March 5, 2004); Second Amended Complaint at 2, No.
1:04-cv-20516 (S.D. Fl., May 4, 2004), available, respectively, as documents JC-FL-0012-0014 and JC-FL-00120001 at the Civil Rights Litigation Clearinghouse,


Miami-Dade County, alleged that Miami had a practice of conducting visual body-cavity
searches on all women arrested, pre-arraignment.38 The county disagreed on the facts, and also
argued that the plaintiffs lacked standing to seek injunctive relief (since none of them lived in
Miami and they were therefore unlikely to be arrested again).39 The case was assigned to
Adalberto Jordan, a Clinton appointee to the U.S. District Court for the Southern District of
Florida. Once Judge Jordan denied the county’s motion to dismiss the injunctive claims,40
mediated settlement negotiations ran relatively smoothly,41 in large part because discovery bore
out the plaintiffs’ version of jail practice. The parties reached agreement in February 2005, after
two days of mediation.42 The jail’s spokeswoman even told the press, “We have become aware
of our strip-search practices and as a result of the lawsuit we have changed our policy. . . . We
want to compensate those people who have been hurt.”43 The jail implemented a new policy,
which allowed strip searches prior to formal first appearance before a judge and subsequent
incarceration in general population only if the charged offense involved violence, weapons, or
drugs, or if there was some other individualized suspicion relating to contraband.44


Complaint at 5, Haney v. Miami-Dade County, No. 1:04-cv-20516 (S.D. Fl. March 5, 2004), available as
document JC-FL-0012-0014 at the Civil Rights Litigation Clearinghouse,

Order Denying Defendants’ Motion to Dismiss, Haney v. Miami-Dade County, No. 1:04-cv-20516 (S.D.
Fla. Aug. 24, 2004), available as document JC-FL-0012-0011 at the Civil Rights Litigation Clearinghouse,



Telephone Interview with Randall Berg, Director, Florida Justice Institute (June 5, 2007).


Mediation Report, Haney v. Miami-Dade County, No. 1:04-cv-20516 (S.D. Fla.), available as document JCFL-0012-0010 at the Civil Rights Litigation Clearinghouse,

Chrystian Tejedor, Lawsuit Settled on Strip Searches: Miami-Dade Agrees to pay $4.5 Million to 100,000
People, S. FLA. SUN-SENTINEL, Apr. 19, 2005, at 1A; Noaki Schwartz & Trenton Daniel, Lawsuit on Strip Searches
Settled: Miami-Dade Settles Class Action in Which Thousands of Women Say They Were Illegally Strip Searched by
Corrections Department, MIAMI HERALD, Apr. 19, 2005, at 1A.

See Miami-Dade County Corrections and Rehabilitation Department, Frisk and Strip Search Procedures
(D.S.O.P. 11-022), at E. (Mar. 16, 2005), available as document JC-FL-0012-0012 at the Civil Rights Litigation

- 10 -

The new policy was filed with the court as part of the settlement, but not entered as a
court-enforceable injunction. So, the settlement’s principle focus was monetary. The total
settlement fund was $6.25 million—$4,550,000 for verified claims by class members; $1 million
for attorneys’ fees; $100,000 for plaintiffs’ costs and expenses; $300,000 for the five class
representatives; and $300,000 for settlement administration.45 The court approved the settlement
after a fairness hearing in September 2005;46 the money was distributed in June 200647. The class
could have been as large as 12,000, but in the event, as is typical in these cases, only a portion—
eleven percent—submitted claims.48 Those 1312 claimants split the $4.55 million, with each
person’s share based on the number of times she was strip searched and the presence or absence
of various aggravating circumstances. The average award was about $3000.49 Note that the total
attorneys’ fee award amounted to just sixteen percent of the total settlement amount—about onesixth, rather than the familiar benchmark of one-third. Merin says it is his ordinary practice in
these cases to ask for well under a third in attorneys’ fees, and to calculate his fees on an hourly
rather than a percentage basis:
I would be overcompensated if I got standard compensation with respect to the common
fund—here in California, that’s generally 25%, but that high a fee would be hard to
justify in relation to the effort these cases take. So instead I do a lodestar calculation with
fully documented hours.50


Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action,
Haney v. Miami-Dade County, No. 1:04-cv-20516 ( S.D. Fl. Apr. 13, 2005), available as document JC-FL-00120008 at the Civil Rights Litigation Clearinghouse,

Agreed Order and Judgment of Dismissal, Haney v. Miami-Dade County, No. 1:04-cv-20516 (S.D. Fla.),
available as document JC-FL-0012-0004 at the Civil Rights Litigation Clearinghouse,

E-mail from Randall Berg, Director, Florida Justice Institute (Dec. 17, 2007).


Interview with Randall Berg, supra note 41. The settlement also included a very large subclass of women
and men whose strip-searches would have been lawful under state law had it been approved in writing by a
supervising officer; they were each entitled to $10. Only 224 of this group, which might have been as large as
100,000 people, actually submitted claims. E-mail from Randall Berg, supra note 47.

Id; E-mail from Randall Berg, Director, Florida Justice Institute (Feb. 12, 2008)


Telephone Interview with Mark Merin, civil rights attorney (June 13, 2007).

- 11 -

There was no occasion for the Miami case to get to the potentially hostile Eleventh
Circuit before its settlement—Judge Jordan’s denial of the defendants’ motion to dismiss the
request for injunctive relief was the only substantive ruling made by the district court, and that
ruling was not appealable.51 In the end, then, the Miami strip-search lawsuit accomplished two
objectives. First, it provoked policy change in Miami; no longer are women arrested for minor
crimes in Miami subjected to intrusive visual inspection of their naked orifices. Second, it caused
a number of transfers of money from public budgets: an unknown amount to defense counsel; a
large amount to the plaintiffs’ lawyers, one in a private civil rights practice, the other at a civil
rights non-profit; a fairly large amount of money to each of the class representatives; and a
smaller amount of money to claiming class members.52

Case Category Features
The jail strip-search case category is small, but it is big enough to conceptualize as a

category: I have located nearly a hundred jail strip-search class actions,53 and there have been
hundreds more individual cases, both affirmative civil actions and criminal cases in which
criminal defendants seek the suppression of evidence by attacking the strip search that lead to its
discovery. The class cases have mostly involved two different moments in jail procedures: strip
searches prior to arraignment, and strip searches after a release order is issued but prior to

See 28 U.S.C. §§ 1291, 1292.


In many counties in Florida, the settlement would have been paid not directly from the County’s budget, but
by the states’ sheriffs’ insurance cooperative; annual contributions by members approximate vary, but for example,
Seminole County paid in about 1.25% of the Sheriff’s total budget of nearly $70 million, the year before the County
settled a strip search litigation for about $575,000. Miami’s sheriff is not, however, a member of the Florida
Sheriffs Self-Insurance Fund, so it paid its own damages. E-mail from Thomas Poulton, attorney for Florida
Sheriffs Self-Insurance Fund (July 17, 2007).

A list of the cases I have located is available as Appendix A; it is posted at, under
“Publications.” [NOT YET POSTED, 2/28/2008]

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release. Possibly the earliest was a case filed in 1979 by the Chicago ACLU. Captioned Jane
Does 1-05 v. City of Chicago,54 it started after women who had been strip searched got in touch
with a lawyer at the ACLU, who in turned fed the story to Chicago’s NBC affiliate television
station. When WMAQ-TV aired a series of investigative pieces on Chicago’s practice of
performing visual body cavity searches of every woman arrested, no matter how minor the
charge, there was an uproar and hundreds of complaints were made to the ACLU, whose phone
number was included in the segments.55 The lawsuits soon followed. In recent years, the
number of jail strip-search class actions has grown; over the past three years, both new
settlements and new cases have been filed just about every month. (From 2005 through 2007, for
example, at least [thirty-five] new class cases were filed.56)
Jail strip-search litigation is highly salient within both the prisoners’ advocacy and the
corrections-administration communities. For example, most issues of the Correctional Law
Reporter, a newsletter whose subscribers are mostly jail and prison legal staff, describe one or
two cases.57 Similarly, Prison Legal News, a publication aimed at prisoners and their advocates,
rarely publishes an issue in which a jail strip-search filing or settlement is not featured.58 The
American Jail Association guide to Jail and Prison Legal Issues describes “strip searches of

Jane Does v. City of Chicago, 79 C 789 ( N.D. Ill. 1984) (filed Mar. 1, 1979). Opinions, on various issues
not discussed in text, are available at 723 F.2d 1263 (7th Cir. 1983), and 687 F.2d 175 (7th Cir. 1982). For
background information on this case, see Ellen Alderman & Caroline Kennedy, The Right to Privacy 3-18; Civil
Rights Litigation Clearinghouse,, case JC-IL-0011.

See id; Telephone Interview with Jan Susler, attorney, People’s Law Office (June 18, 2007); Unit 5
Investigative Series, Strip & Search (WMAQ-TV television broadcast 1979), video on file with author. The news
segments were awarded the George Foster Peabody award, so information about them is available in the Peabody
Awards Collectino Archives, at (last visited Feb. 14, 2008).

See Appendix A, supra note 53.


See, e.g., Two Strip Search Policies Stricken, 17 CORRECTIONAL L. REP. 74 (2006) (“Another jail strip
search policy—actually two policies—bite the dust, this time in Will County, Illinois, just south of Chicago and
Cook County.”).

See, e.g., $2.5 Million Settlement in Schenectady County Strip Search Suit, PRISON LEGAL NEWS, June 2007

at 18.

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arrestees incident to booking into the jail” as “the most controversial and oft-litigated
correctional search issue.”59
That salience seems to have two causes. First, in a corrections setting, cases with sevenand eight-figure damage totals get noticed60 Another, and perhaps more interesting, factor
contributing to the currently extremely high profile of jail strip-search cases is the contrast
between the law and the preferences of many jail officials. The controversy the American Jail
Association guide describes is not legal doubt—recall, it refers to “the huge weight of authority”
against blanket strip searches, but rather the conflict between the continuing wish by at least some

jail authorities to strip search everyone they book into a jail, and their repeated court losses. All
the lawyers who practice in this area describe what sheriffs’ counsel Tom Poulton termed “a
contingent in the law enforcement community that thinks that everyone should get strip searched
going into a jail.”61 That contingent often assumes that its views, which feel mainstream to its
members, are consonant with the law. After all, constitutional case law nearly always defers to
corrections officials’ felt necessities.62 The Sacramento Bee summed this point up in an article


COLLINS, supra note Error! Bookmark not defined., at 227.


In some areas of litigation, these kinds of numbers would not attract as much attention. But jail litigation is
unusual. Even though it is a high docket, in most of its categories plaintiffs lose most of their cases, and when they
win, the awards tend to be low (though not as low as in prison litigation). See, e.g., Anne Morrison Piehl & Margo
Schlanger, Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates, 1 J.
EMPIRICAL LEGAL STUD. 79 (2004); Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003). For a
discussion of injunctive cases involving jails, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case
Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550 (2006) [hereinafter Schlanger, Civil Rights
Injunctions Over Time].

Telephone Interview with Thomas Poulton, attorney for Florida Sheriffs Self-Insurance Fund (July 11,


See, e.g., Turner v. Safley, 482 U.S. 78, 87 (1987) (holding that the Constitution allows prison regulations to
“burden fundamental rights” if they are “reasonably related to legitimate penological objectives”).

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about Sacramento’s strip-search case. Notwithstanding solid circuit precedent against them from
1984 on,63 “County officials were stunned when a judge ruled against them.”64

As Galanter has advised, understanding this litigation requires analysis of its participants.

The sections below first discuss the plaintiffs and then plaintiffs’ counsel. (It would be
interesting to look, as well, at defendants and their counsel, but this article does not do that.)
1. Plaintiffs
Even though the vast majority of people arrested are poor and male,65 it appears that a
disproportionate number of the class cases involve women and middle-class arrestees. Several
reasons for these features of the docket seem clear. Looking first at gender, quite a few of the
cases allege that women are singled out for more invasive search procedures than men,66 perhaps
because jail authorities believe that vaginal smuggling of contraband is easier (or more common)
than anal smuggling, and therefore that there is a greater need for highly intrusive searches of
women.67 Possibly more important than different practices is differently experienced practices:
women might well feel more harmed than men by a visual body-cavity search. After all, given


Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. de la
Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999); Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir.

Mareva Brown, Strip-search Ruling Forces Big Changes, SACRAMENTO BEE, June 7, 2003, at A1. The case
was Bull v. City and County of Sacramento, discussed in text accompanying note 32.

(July 2004) (rev’d Oct. 10, 2004), available at (12% of jail inmates at
midyear 2002 were female; 59% reported monthly income under $1000; and 14% were homeless at some point in
the prior year).

In addition to the Miami and Chicago cases already discussed, see, for example, Musso v. County of Los
Angeles, BC 249462 (L.A. Super. Ct. Cal. filed Jan. 18, 2001), and Connor v. Plymouth County, No. 1:00-cv-10835
(D. Mass. filed May 1, 2000). Information about these cases is retrievable by their case names or case codes—JCCA-0021 and JC-MA-0009 respectively—at the Civil Rights Litigation Clearinghouse,

Telephone Interview with Jennifer Duncan-Brice, Judge, Circuit Court of Cook County (IL) (June 4, 2007).
Judge Brice worked in the Chicago Corporation Counsel’s office and represented the city in the Jane Does
litigation. See also Interview with Randall Berg, supra note 41.

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the gender distribution of jail workforces,68 women arrestees may be more likely than men to
have the search done or observed by someone of the other sex; they may be menstruating or
pregnant, both conditions that render searches particularly objectionable;69 and they may care
more about bodily privacy than men.
As for the evident tilt towards middle-class instigating plaintiffs, that seems predictable
enough. Members of the middle class are more likely to be startled and surprised by humiliating
treatment by authorities, and more likely to be able to generate attention by both the media and
lawyers. Mary Bull, the named plaintiff in the San Francisco and Sacramento cases mentioned
above, made this point to the Sacramento Bee, which reported,
Bull said she believes that middle-class, educated women, like herself, are obligated to
speak out about the civil rights violations they experience in jail.
“Most of the people (in jail) are disempowered,” she said. “They’re not going to
fight back. They don’t have the means or the motivation or the resources.”70

But of course, even if the instigating plaintiffs are better off, it follows from the
demographics of policing that the full classes—people arrested and strip searched—are bound to
comprise mostly those with lower socioeconomic status.71 A large portion of the plaintiff class in
the Miami case was prostitutes (and since the money was allocated per search, their repeat arrests
multiplied the amount of their damages).72 In Sacramento, about a quarter of the claiming class
members were homeless.73 In fact, perhaps it is in part because the plaintiff class tends to be


(August 2001), available at (women are 34% of jail staff and 28% of
correctional officers employed by jails).

Many of the settlements give extra compensation to those members of the class who were either pregnant or
menstruating at the time of the search. See, e.g., Stipulated Motion for Preliminary Approval of Provisional
Settlement Class and Settlement of Class Action, at 11, Bull v. County of Sacramento, No. 01AS01545 (Sacramento
Super. Ct. June 4, 2004).

Mareva Brown, Strip-search Ruling Forces Big Changes, SACRAMENTO BEE, June 7, 2003, at A1.


See JAMES, supra note 65 (describing the economic demographics of arrestees).


Interview with Randall Berg, supra note 41; Interview with Thomas Poulton, supra note 61.


Walsh, supra note 32.

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poor, and therefore difficult to track down, that plaintiffs’ claiming rates in these cases are
usually only twenty percent or lower.74
2. Plaintiffs’ Counsel
One of the reasons the “case congregation” idea is a useful organizing tool, Galanter
explains, is that “lawyers often shape practice specialties around such congregations.”75 The
point holds with respect to the subspeciality of strip-search litigation. The plaintiffs’ lawyers can
be grouped into four subsets: some work for public interest organizations (for example, the
ACLU, the Florida Justice Institute); a few have a cooperating relationship with such a public
interest organization but do most of their work in some other area, so that strip-search litigation
is basically a pro bono matter for them;76 some have a private prisoners’ rights or police
misconduct practice;77 some have a more varied or general class-action practice. I interviewed
members of each subset.
I have argued in prior work that “the identity, priorities, litigating strategies, and
resources of plaintiffs’ counsel have been of great importance to the shape and success of

Interview with Randall Berg, supra note 41. Note that 20% would be a high claiming rate in some kinds of
class actions—although there is no hard data publicly available, experts believe that the rate in consumer class
actions, for example, is generally 1% to 5%. E-mail from Alexandra Lahav, Associate Professor of Law, University
of Connecticut (Aug. 13, 2007) (on file with author). See also, e.g., Zimmer Paper Prod., Inc. v. Berger &
Montague, P.C., 758 F.2d 86, 89 (3d Cir. 1985) (describing a 12% response rate from largely commercial class
members in an antitrust suit); Christopher R. Leslie, The Significance of Silence: Collective Action Problems and
Class Action Settlements, 59 FLA. L. REV. 71, 119–20 (2007) (discussing collective action problems as a contributor
to low class-claiming rates).

Galanter, Case Congregations, supra note 10, at 372.


On the role of cooperating attorneys in the activities of different public interest law organizations, see, for
example, Brenda Bratton Blom, Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners
Anchor Social Movements, 39 STUD. L. POL. & SOC’Y 119, 127–30 (2006) (discussing small firm lawyers
cooperating with the NAACP Legal Defense and Education Fund); Robert L. Rabin, Lawyers for Social Change:
Perspectives on Public Interest Law, 28 STAN. L. REV. 207, 219–20 (1976) (discussing attorneys cooperating with
the ACLU).

On law-firm cause-lawyering, see Stuart Scheingold & Anne Bloom, Trangressive Cause Lawyering:
Practice Sites and the Politicization of the Professional, INT’L J. LEGAL PROF. 5 (1998); Austin Sarat & Stuart
Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in CAUSE
eds., 1998).

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litigated prison reform,”78 and in particular, “the varying resources, goals, and strategies of
[different prisoners’ rights] groups also shaped prison litigation’s history, affecting what claims
the groups made, what violations were found, and the eventual remedies chosen.”79 Other
authors agree.80 So when I began examination of jail strip-search cases, I expected to find
examples of this general phenomenon—to find, for example, lawyers for prisoners’ rights groups
and more focused private prisoners’ rights advocates more frequently negotiating decrees with
substantial injunctive remedies and oversight of those remedies. In fact, it turns out that such
remedies are rare for any of the lawyers81—perhaps because of standing obstacles,82 or because

Schlanger, Beyond the Hero Judge, supra note 13, at 2015.


Id. at 2020.


SOCIAL CHANGE 35 tbl.1.6 (1978) (identifying numerous characteristics of law reform groups that bear on the
probability of success in their reform efforts, including their size, funding, institutional affiliation, technical
expertise, and political resources); WAYNE N. WELSH, COUNTIES IN COURT: JAIL OVERCROWDING AND COURTORDERED REFORM 40–41, 49–53, 62–63, 79 (1995) (analyzing differences in the profile of jail reform litigation
conducted by different types of plaintiffs’ counsel); Alvin J. Bronstein, Prisoners and Their Endangered Rights,
PRISON J. (Spring–Summer 1985) at 3, 11 (“[I]t is likely that cases will succeed or fail not on the basis of how
unconstitutional the conditions are, but on the basis of how resourceful the lawyers and experts are.”); Susan P.
Sturm, Lawyers at the Prison Gates: Organizational Structure and Corrections Advocacy, 27 U. MICH. J.L. REFORM
1 (1993) (examining characteristics, strategies, and interests of various groups of plaintiffs’ counsel in correctional
cases, including the ACLU National Prison Project, the Youth Law Center, legal services organizations, law firms,
and law school clinics). For a related view, though one focusing less on organizational factors and more on practice
style, see Anne Bloom’s contribution to this volume, Practice Style and Legal Mobilization, [] LAW & CONTEMP.
PROB. [] (2008).

Many of the cases seek cessation of the problematic strip searches, and an agreement to halt the practice is
included in a few of the settlements. For example, in Bynum v. District of Columbia, the agreement provided,
The plaintiffs’ claims for prospective relief regarding the strip search class will be resolved by the
D.C. Department of Corrections’ plan to divert inmates ordered released or otherwise entitled to release
from the Superior Court of the District of Columbia to a secure location outside of the open population of
the D.C. Jail or another location where they will not be subject to a strip search, absent individualized
suspicion, while the record review for detainers and warrants and property retrieval are conducted prior to
release. This process shall be implemented on or before August 31, 2005.
Settlement Agreement at 7, Bynum v. District of Columbia, 1:02-cv-00956-RCL (D.D.C. June 16, 2005),
available as document JC-DC-0004-0006 at the Civil Rights Litigation Clearinghouse, See also, e.g., Class Actions Injunctive Relief Agreement, Riley v. Los Angeles, BC
239825 (L.A. Super. Ct., Cal. Sept. 1, 2001), available as document JC-CA-0056-0001 at the Civil Rights Litigation
Clearinghouse, Provision for ongoing oversight of compliance—the kind of remedy
that is commonplace in civil rights injunctive cases—is rarer. For one of the few examples, see the Stipulation for
Entry of Partial Final Judgment, Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y. Mar. 14, 1979), available as
document JC-NY-0002-0011 at the Civil Rights Litigation Clearinghouse, See also
Stipulation and Proposed Order at 10-11, Benjamin v. Malcolm (S.D.N.Y. Aug. 23, 1982), available as document
JC-NY-0002-0012 at the Civil Rights Litigation Clearinghouse,

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agencies tend to cease their challengeable strip-search practices once sued, without waiting for
entry of injunctive relief.83 Ken Flaxman, a civil rights lawyer who was referred his first stripsearch case by the ACLU of Northern Illinois, explained that he brings strip-search class actions
as opt-out damages cases because he has to, in order to include a damages component, not
because he wants to: “I try to do [injunctive] (b)(2) cases, but it’s become impossible, so now I
do [damage] (b)(3) cases instead.”84
The terms of the monetary settlements these different types of lawyers have negotiated do
not look strikingly different on first blush (although this generalization rests on less than a truly
systematic analysis). Perhaps variation is a bit less available for monetary settlements than for
the types of injunctions common in other areas of prison and jail practice.85 In any event, many
jail strip-search settlements have very similar features: they define their classes in similar terms
and structure their payouts in similar ways, each using some kind of point or share system to
allocate the payments to plaintiffs based on the presence or absence of various aggravating
factors (pregnancy, menstruation, physical touching, being observed by other prisoners or by
officers of the opposite sex, being ridiculed, and so on). An obvious difference across cases, and
potentially across lawyer type, would be the actual amounts of money negotiated. Unfortunately,


See Los Angeles v. Lyons, 461 U.S. 95 (1983) (holding that a plaintiff subjected to a police choke hold did
not have standing to seek change in choke hold policy, because it was unlikely that he would be subjected to a choke
hold in the future).

This is what happened, for example, in the cases in which the Florida Justice Institute served as plaintiffs’
counsel. See Stipulation of Settlement, Haney v. Miami-Dade County, No. 1:04-cv-20516 (S.D. Fl. Apr. 13, 2005),
available as document JC-FL-0012-0002 at Civil Rights Litigation Clearinghouse,;
Stipulation of Settlement at 3, Parilla v. Eslinger, No. 6:05-cv-850 (S.D. Fla., Dec. 29, 2006) ), available as JC-FL0013-0003 at the Civil Rights Litigation Clearinghouse, Parilla included additional
injunctive relief relating to its over-detention claim. Id. at 6-8.

Telephone Interview with Kenneth Flaxman, civil rights attorney (June 13, 2007). The reference is to FED.
R. CIV. P. 23(b)(2) and 23(b)(3), and the increasing stringency governing “hybrid” damages and injunctive class
actions. See, e.g., Carol V. Gilden, The Evolving Use of Rule 23(b)(2) in Hybrid Class Actions Seeking Monetary
Damages: A Hybrid Approach, 761 PRACTICING LAW INSTITUTE/LITIGATION 199 (2007).

For a discussion of jail and prison injunctive practice, see, for example, Schlanger, Civil Rights Injunctions
Over Time, supra note 60.

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the many other potential sources of variation (size and insurance coverage of defendant,
geographic and economic factors, and judicial differences) along with the relatively small
number of cases observed precludes assessing whether variation in payouts can appropriately be
attributed to the background of plaintiffs’ counsel.
The next four subsections examine more subjective evidence of difference across lawyer
groups; such evidence indicates little variation by lawyer type in the litigation’s goals and
framing. All the plaintiffs’ lawyers interviewed for this article, regardless of their backgrounds,
spoke similarly about the purpose of their litigation—about the humiliation of those subjected to
unlawful strip searches and how important it is to end the practice. However, these interviews
did surface some marked differences in the lawyers’ orientations towards their own fees, the
threat of adverse legal change, and the appropriate response to such a threat.
a. Lawyers for public interest organizations. Before 1996 (and especially before the
Reagan Administration’s 1981 budget cuts), legal services offices around the country handled
quite a large amount of jail litigation.86 The legal services jail practice was ended by a statutory
ban on federally funded legal-services offices’ representation of prisoners.87 There are, however,
two dozen or so organizations that handle civil litigation for prisoners; most though not all do at
least some jail litigation as well.88 Yet very few such organizations have taken on one of the jail


See Schlanger, Beyond the Hero Judge, supra note 13, at 2019 & nn. 124–128 (describing legal-services
offices’ involvement in jail and prison litigation).

Omnibus Consolidated Rescissions & Appropriations Act of 1996, Pub. L. No. 104-134 § 504(15), 110 Stat.
1321, 1321–55 (1996); see also 45 C.F.R. §§ 1632.1–5 (1996).

The only non-profit litigating organization of which I am aware that focuses nearly exclusively on jail cases
is the Prisoners’ Rights Project of the New York City Legal Aid Society. Its docket is limited to New York, and it
has not been involved in strip-search litigation for many years. The national non-profit organizations that do civil
suits representing prisoners are: ACLU National Prison Project (and the many local and regional ACLU chapters);
Protection and Advocacy organizations affiliated with the National Disability Rights Network (whose work is
limited to issues involving mental disability); U.S. Department of Justice, Civil Rights Division, Special Litigation
Section; and Legal Services for Prisoners with Children. The regional organizations are: Columbia [WA] Legal
Services; D.C. Prisoners’ Legal Services Project; Florida Institutional Legal Services; Florida Justice Institute; Legal
Services for Prisoners (in Kansas); Lewisburg [PA] Prison Project; Massachusetts Correctional Legal Services;

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strip-search cases, particularly since the 1980s.89 Because these are cases that can be profitable
for private lawyers, public interest lawyers report that their organizations have by-and-large been
happy to leave the field clear. (Like other non-firm lawyers, attorneys at public interest
organizations do not themselves take home whatever they recover by way of fees.) As John
Boston of New York City’s Legal Aid Society Prisoners’ Rights Project explains, recently his
office “ha[s] not been involved in this, in large part because the private bar does get into these
Perhaps, in addition, lawyers for prisoners’ rights organizations are more interested in the
kinds of repeated abuses that affect people for longer periods of time, or more severely, than strip
searches. Prisoners’ rights groups’ lawsuits tend to focus on life-and-death kinds of issues—
medical and mental health care, protection from assault by other prisoners, excessive force, and
the like. As Elizabeth Alexander, director of the ACLU National Prison Project, explains,
“Recently we have just had other higher priorities.”91
John Boston offers another reason his shop has stayed out of jail strip-search litigation
over the past fifteen or more years (although it did litigate the issue as part of a comprehensive
case dealing with Rikers Island beginning in the 1970s, and then negotiated modification in the

North Carolina Prisoner Legal Services; Pennsylvania Institutional Law Project; Prison Law Office (in California);
Prisoners’ Legal Services of New York; Prisoners’ Rights Information System of Maryland; Prisoners’ Rights
Office (in Vermont); Prisoners’ Rights Project of the [NYC] Legal Aid Society; Southern Center for Human Rights
(in Georgia); Southern Poverty Law Center (in Alabama); Youth Law Center (in California). This list comes from
2007), available at There are also prisoners’ rights
clinics at various law schools that do a limited amount of work in this area. See AMERICAN ASSOCIATION OF LAW

The ACLU’s litigation in Chicago was in the early 1980s.


E-mail from John Boston, Director, New York City’s Legal Aid Society Prisoners’ Rights Project, to author
(July 17, 2007) (on file with author); see also Interview with Randall Berg, supra note 41.

E-mail from Elizabeth Alexander, Director, ACLU National Prison Project, to author (July 17, 2007) (on file
with author).

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early 1990s)92: “Some of us (like me) think that this is an accident looking for a Supreme Court
to happen in.”93 Better, therefore, not to litigate the issue too aggressively.
For these reasons, there are not many lawyers at public interest organizations to interview
about recent jail strip-search cases. I was able to interview just one—Randall Berg, director of
the Florida Justice Institute, was was counsel in the recent Miami litigation and who also
litigated a strip-search case in Seminole County, Florida. Berg agreed with his public interest
colleagues who have not worked on these cases that they are somewhat lower priority than
ordinary conditions-of-confinement work because their economics makes it possible for private
lawyers to take them instead. (As he put it, “there’s money to be made” on them.94) But he also
pointed out that that money can be useful to his organization, as well: “I can’t live or exist on just
foundation grants. And we’re getting injunctive relief in these cases, also—not just damages. To
be able to do both ought to be appealing to public interest organizations.” Thus Berg’s two stripsearch cases, each with substantial attorneys’ fees awards, have supported his office’s other
litigation.95 Asked whether he worries about eventual Eleventh Circuit or Supreme Court
reversal of the current case law, and what that kind of worrying meant for decision to take on the
strip-search issue, Berg replied:

E-mail from John Boston, supra note 90; Stipulation for Entry of Partial Final Judgment at 10, Benjamin v.
Malcolm, 75 Civ. 3073 (S.D.N.Y., March 14, 1979) (settlement agreement setting out standards to govern bodycavity searches of jail inmates in New York City), available as document JC-NY-0002-0011 at the Civil Rights
Litigation Clearinghouse,; Stipulation and Proposed Order, Benjamin, 75 Civ. 3073
(S.D.N.Y. Aug. 23, 1982), available as document JC-NY-0002-0012 at the Civil Rights Litigation Clearinghouse, For information on this long-lived and very contentious litigation, see Benjamin v.
Malcolm, 75 Civ. 3073 (S.D.N.Y., March 14, 1979), available at the Civil Rights Litigation Clearinghouse, (search for case JC-NY-0002 under “Clearinghouse ID”).

E-mail from John Boston, supra note 90; see also Interview with Randall Berg, supra note 41.


Interview with Randall Berg, supra note 41.


Strip-search cases can have much higher attorneys’ fees even than other successful jail and prison litigation,
for two reasons. First, not many types of prisoner damage claims can be aggregated as class actions. Second,
because the claimants are no longer in jail or prison, the attorneys’ fees are not constrained by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(d), which sharply limits the hourly and percentage attorneys’ fees rate payable in
cases brought by prisoners. In addition, jail litigation often has higher damages than prison litigation, for many
reasons described in Schlanger, Inmate Litigation, supra note 60, at 1686-89.

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As a civil rights attorney in this era of hostility to prison conditions cases, one could
always be “worried” about the 11th Circuit or this Supreme Court’s possible reversal of
current case law. . . . But being “worried” should not be justification for any civil rights
attorney to not take a case which is morally wrong and against the current state of the
law. If such paranoia becomes the basis for taking a case, one should get out of this line
of work. Indeed, it did not stop me from taking the Seminole County case, which
occurred long after the atrocious dicta in the 11th Circuit’s en banc decision in Evans v.
b. Cooperating counsel. It follows from the rarity of public interest organizations’
participation in this litigation that there are few attorneys involved who have what is usually
called a “cooperating” relationship with those public interest organizations. The only such
cooperating attorneys I was able to interview took on cases in the ACLU’s early 1980s Chicago
litigation, Jane Does 1-5 v. Chicago.97 In that case, the parties used a version of the “bellwether
trial” technique,98 trying some of the individual claims before juries as a way of setting realistic
settlement figures.99 This meant that quite a few lawyers were needed, so the ACLU sent out a
call for cooperating counsel. Following its ordinary practice, the ACLU of Northern Illinois
asked lawyers who took on a case in this way to give any fees they won to the ACLU; the
representation was to be pro bono.100 Accordingly (and as is usual), lawyers from Chicago’s
large personal-injury bar were not among the list of cooperating counsel; rather, these were


E-mail from Randall Berg, supra note 47.


See supra note 54 and accompanying text.


See MANUAL FOR COMPLEX LITIGATION, THIRD § 33.28 (describing use of “bellwether plaintiffs” in mass
tort cases); see also MANUAL FOR COMPLEX LITIGATION, FOURTH, § 22.93 (describing use of “test case trials” to
establish mass tort settlement figures); FED. R. CIV. PRO. P. 42(b); Alexandra D. Lahav, Bellwether Trials, G.W. L.
REV. (forthcoming 2008), available at Cf. In re Chevron U.S.A., Inc., 109 F.3d
1016, 1019 (5th Cir. 1997) (“The term bellwether is derived from the ancient practice of belling a wether (a male
sheep) selected to lead his flock.”).

Interview with Jennifer Duncan-Brice, supra note 67; Telephone Interview with Harvey Gross, Director,
ACLU of Northern Illinois (June 1, 2007). See also Docket at 12, Jane Does 1-05 v. City of Chicago, 79 C 0789
(N.D. Ill., Aug. 18, 1982), available as document JC-IL-0011-9000 at the Civil Rights Litigation Clearinghouse,

Telephone Interview with Fay Clayton, partner, Robinson, Curley & Clayton (May 31, 2007); Telephone
Interview with Harvey Gross, supra note 99.

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liberal lawyers from higher-status101 law firms. I interviewed one such lawyer, Peter Carey, who
recalls being quite uninterested in fees (which only makes sense, given the plan for turning those
fees over to the ACLU), or, for that matter, injunctive relief. His focus, he remembers, was on
maximizing individual damages in his individual trials.102
In another case of the same vintage, Hunt v. Polk County, 103 U.S. district judge Mark
Bennett (then the civil rights lawyer who represented the plaintiff) reported a similar approach.
Hunt was an individual damage action referred to Bennett by the Iowa affiliate of the ACLU.
Like his four to six other jail strip-search cases, it was not a pro bono case, he said, but he was
content with the standard percentage contingency fee on the individual damages he won. Asked
why he didn’t convert the lawsuit to a class action, he explained,
I did a lot of 23(b) class work and didn’t do it in Hunt. I suspect Hunt was interested in
his own case more than others, and I wanted to get a fast decision because it was cutting
edge and the class cert[ification] always slowed things down. . . . I thought a favorable
ruling at the district court would assist others around the country on this issue and . . . that
if we made good law greedier lawyers could come in and make the money.104

In short, cooperating counsel for the ACLU in this area seem to have filed mostly
individual actions, not class actions, and to have concentrated on maximizing returns for their
individual clients rather than maximizing either attorneys’ fees or total payments by defendants
to a group of aggrieved plaintiffs.
c. Private prisoners’ rights or police misconduct lawyers. Many of the lawyers who
have worked on class-action strip-search cases have a private prisoners’ rights or police
misconduct practice, with occasional ventures into other kinds of civil rights (or criminal



Telephone Interview with R. Peter Carey, retired partner, Mandel, Lipton & Stevenson (June 13, 2007).


551 F. Supp. 339 (S.D. Iowa 1982).


E-mail from Mark Bennett, Judge, U.S. District Court for the District of Iowa, to author (May 27, 2007) (on
file with author).

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defense) work. Some of these lawyers are quite radical. Jan Susler, who worked on one of the
trials connected to the Jane Does class action in Chicago, and then on several other individual
damage actions related to strip searches, is a member of the Chicago lawyers’ collective the
People’s Law Office, which was founded in the 1960s in support of the Black Power movement.
She has handled all kinds of police-misconduct litigation, including over a dozen police, jail, and
prison strip-search cases—all but one brought on behalf of a single plaintiff, with settlements of
$40,000 to $60,000, of which her office received one-third as attorneys’ fees. She describes stripsearch litigation as of a piece with her extremely political law practice; she explains that she
handles civil rights cases, including strip-search cases, in order to simultaneously fight
“excessive state power” and empower her clients (Susler’s other major litigation area is Puerto
Rican independence). Susler’s approach to her cases seems somewhat inconsistent with classaction practice; she reports that she works hard to build a real and individual relationship with
her clients. 105
More typical of this category of lawyer is Howard Friedman—a well-known civil rights
lawyer in Boston. Friedman’s first job out of law school was as a staff attorney of the Prisoners’
Rights Project in Boston (more recently called Massachusetts Correctional Legal Services). His
private practice focuses on police-misconduct cases of various types, though he also does other
civil rights work and occasional non-civil rights cases. He is the president of the National
Lawyers Guild’s National Police Accountability Project. Friedman has handled sixteen stripsearch cases—five jail class actions, and the rest individual damage actions involving prisons
and police departments.106 Friedman explained to me that “class actions can be better for the


Telephone Interview with Jan Susler, supra note 55.


For a list, search for Howard Friedman at the Civil Rights Litigation Clearinghouse,

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lawyer than for the client” because they take longer to settle and sometimes the instigating client
ends up with less money.107 On the other hand, he adds,
[T]here are some cases that I would only take as a class action. The defense in individual
cases is to attack the plaintiff. Many people who were arrested and strip searched are
susceptible to an attack, these people would do better as one of several class
representatives or as a class member.108

His first strip-search class action, Mack v. Suffolk County,109 was in the former category: it began
as an individual damages case, and only when it became clear that Suffolk County would not
settle did his client agree to seek class certification.110 After the class was certified, the court
granted the plaintiffs’ summary judgment on liability, and the case settled for $10 million;
Friedman’s client received $35,690—about $9,000 as a class member and the rest in “bonus”
payments for her role as a class representative and her participation in depositions, trial
preparation, and press coverage.111 Friedman’s firm received thirty percent of the total fund as
attorneys’ fees, plus costs. Nonrepresentative class members received between a few hundred
dollars (for drug and sex-related arrestees) and $9,000; there were about 1500 claimants.112 But
another case, Nilsen v. York County,113 fits the latter category.


Telephone Interview with Howard Friedman, civil rights attorney (June 1, 2007). Galanter has brought
together academic literature making the same point, see Galanter, Case Congregations, supra note 10, at 385 & n.
22 (listing many examples of studies demonstrating that “[i]n civil cases, there seems to be a discount for quantity—
i.e., multiple plaintiffs receive less on the average than similarly injured individuals”).

E-mail from Howard Friedman, civil rights attorney, to author (Aug. 13, 2007) (on file with author).


191 F.R.D. 16 (D. Mass. Feb. 16, 2000) (No. 98-12511-NG); information about this case is available at the
Civil Rights Litigation Clearinghouse,, under its case name or case code (JC-MA0010).

Telephone Interview with Howard Friedman, supra note 107.


The class certification decision was made in February 2000. 191 F.R.D. 16 (D. Mass, 2000); summary
judgment was granted in July 2001, 154 F.Supp.2d 123 (D. Mass 2001). For information about the settlement see
Settlement Agreement, Ford v. Suffolk County, No. 98-11346-NG (D. Mass, July 8, 2002), and Distribution
Formula, Ford v. Suffolk County, No. 98-11346-NG (D. Mass., undated), available respectively as documents JCMA-0010-0001 and JC-MA-0010-0002 at the Civil Rights Litigation Clearinghouse,

E-mail from Howard Friedman, supra note 108.


400 F. Supp. 2d 266 (D. Me. 2005).

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Asked about the Supreme Court’s reversal of the precedents on which these cases rely
Friedman responded, “I am not sure what the Supreme Court as currently constituted would do
with one of these cases. If the case is properly presented I think we can win since the ban on
routine strip searches has been in place in many jails now without significant problems.”114 He
is, however, fully aware of the risk that the Roberts Court might disagree even with unanimous
court of appeals precedent, noting, for example that the Court recently “reversed what all of the
circuit courts had decided regarding Heck v. Humphrey.”115
One final profile completes this discussion of private civil rights counsel. Like Friedman
and Susler, Barry Litt has been a civil rights lawyer for many years. He used to bring more
individual actions, but he reports that in recent years he has filed mostly civil rights class actions.
He explains that he likes to take strip-search cases because litigation “can’t impact jails very
much, except on the way in and on the way out.”116 Strip-search cases are on the way in, and
they therefore fit into the narrow category of cases that “can make real change.”117 In addition,
“We have been able to turn them into pretty successful financial ventures—so we can use the
money to fund other cases.”118 Litt has handled eight strip-search class actions, two of them
completed and six pending.119 In the two that are finished, in Los Angeles and Washington, D.C.,
he and the other lawyers have ended up with attorneys’ fees of one-third of the total settlement
fund— over $13 million in attorneys’ fees from $39 million in settlement funds. Another case,


E-mail from Howard Friedman, supra note 108.


Id. The reference is to Wallace v. Kato, 127 S.Ct. 1091 (2007), which rejected circuit court precedent
interpreting Heck v. Humphrey, 512 U.S. 477 (1994).

Telephone Interview with Barrett Litt, partner, Litt, Estuar, Miller & Kitson (June 4, 2007).






For a list, and more recent additions, search for Barrett Litt at the Civil Rights Litigation Clearinghouse,

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Craft v. County of San Bernadino,120 has a $25 million settlement (with twenty-five percent
attorneys’ fees) waiting for judicial approval.121 Litt reports that his priority in the settlement
negotiations is keeping the claims process simple and the claiming rate high, so more money
goes to the claimants and less to the administrator. In response to a question about potential legal
change, Litt reports that he is not currently moderating his approach to the litigation. But it is
clear, he says, that such change is a possibility, particularly in the Eleventh Circuit. So if a circuit
split develops, that obviously makes Supreme Court intervention in the issue more likely, and he
will reevaluate then.122
d. Class-action lawyers. Finally, a few lawyers have worked on jail strip-search cases
who work on a large variety of class actions—consumer cases, products cases, securities cases—
with no notable focus on civil rights. Reports by others demonstrate that class-action lawyers do
not often talk about their fees as funding their practice, the language used by the civil rights
lawyers above. Rather, fees are conceptualized as the return on their investment. Fees, that is, are
the output of a law practice, not its input.123 No class-action lawyer interviewed for this article
was quite so frank in his language. But it was clear, nonetheless, that for a class-action lawyer,
strip-search cases are part of a business plan.


468 F. Supp. 2d 1172 (C.D. Cal. 2006); more information available at the Civil Rights Litigation
Clearinghouse (case JC-CA-0044).

See Stipulation and Order Granting Preliminary Approval to Class Settlement, Craft v. County of San
Bernadino County, 5:05-cv-00359-SGL-OP, available as document JC-CA-0044-0003 at the Civil Rights Litigation

E-mail from Barry Litt, partner, Litt, Estuar, Miller & Kitson, to author (Aug. 13, 2007) (on file with


See, e.g., Myriam Gilles, The Survivors Bar: The Litigation Industry in the Wake of Reform (July 17, 2007)
(unpublished draft manuscript on file with author).

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Charles LaDuca is one such lawyer. LaDuca’s firm litigates mostly securities, anti-trust,
and products class actions.124 But over the past three or four years jail strip-search class actions
have become about sixty percent of his practice. He has been involved in over a dozen of the
cases, and has more in the works. It is possible, LaDuca says, that lawyers with no civil rights
background or commitment might bring these cases entirely for the attorneys’ fees, rather than
the benefits to the class, and therefore agree to “settle the cases on the cheap.”125 But this is not
LaDuca’s approach, he says. He talks with energy about his substantive commitment to these
cases. And yet he is much more business-like in his discussion of them than the other lawyers
whose interviews have already been described. For example, he explains that the now-abundant
settlement and litigation precedents set a fairly clear market rate for settlement: “about $1000 per
head if you were strip searched on a non-felony case without reasonable suspicion.”126 His
settlements are in line with that market rate, he says, and he is content with that. For example,
each claimant in his cases gets just one settlement, regardless of how many strip searches she or
he experienced.127 (This arrangement would likely be quite unappealing to counsel who identify
more solidly as prisoners’ rights lawyers—compare it, for example, to the outcome described

The firm’s website states, “Our firm is involved in the prosecution of complex, serious cases involving
fraud, conspiracy, antitrust violations, privacy violations, and violations of state and federal securities laws, as well
as consumer protection and product liability cases, in federal and state courts throughout the United States.” (last visited Jan. 7, 2008).

Telephone Interview with Charles LaDuca, partner, Cuneo, Gilbert & LaDuca (May 24, 2007). Because
fees need to be approved by the district court, this can require some fancy paperwork to make the attorneys’ fees
look more reasonable. For example, a case with a total class of 3000 people could settle for a maximum of several
million dollars and $1,000 per claimant. If (as expected) only a few hundred people submit claims, that means the
true settled payment to the class is much lower. But fees can be set as a percentage of the maximum fund, not the
actual distributed benefit for the class members. For settlements with reverter structures, see, e.g., Settlement
Agreement at 13, Kahler v. Rensselaer County, No. 03-cv-01324-TJM (N.D.N.Y. Aug. 16, 2004), available as
document JC-NY-0045-0007 at the Civil Rights Litigation Clearinghouse,; Doan v.
Watson, 2002 WL 31730917, No. 99-4-C-B/S (S.D. Ind. Dec. 4, 2002); Maneely v. City of Newburgh, 256 F.Supp.
2d 204 (S.D.N.Y. 2003); Eddleman v. Jefferson County, 96 F.3d 1448 (6th Cir. 1996) (table op.), No. 3:91CV-144-J
(W.D. Ky. settlement approved May 24, 1999). This issue and all of these cases are discussed in Nilsen v. York
County, 400 F. Supp. 2d 266 (D. Me. 2005).

Interview with Charles LaDuca, supra note 125.



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above in the Miami case.) LaDuca explains that he needs to work with criminal defense or civil
rights lawyers on these cases because they “have the pulse of how things are happening at the
jail.” But his contribution, he says, is the “ins and outs of Rule 23 practice.”128 Perhaps, in
addition, he contributes a kind of consumerist orientation—experience and comfort with small
individual damages aggregated into large total awards.
To finish up the comparison, I asked LaDuca, too, whether he agreed that the strip-search
precedents are vulnerable given the current ideological makeup of the Supreme Court, and what
difference it should make if they are. This is a threat that does not seem to loom large for him:
I do have a lot of confidence, maybe blind confidence, in the many Circuit Courts that
have weighed in favorably already. . . . Long and short of it, while this Supreme Court
wouldn’t exactly be considered favorable for our cause; I'm not going to stop bringing
these cases, where applicable, because of the threat of a possible change.129



Observers across civil rights fields have long noted the connections between the civil
rights, personal injury, and class action bars.130 But even within civil rights litigation, it is
unusual to find a set of cases in which more than one kind of lawyer can be a specialist. I had
expected to find differences in framing, goals, or outcomes—in particular, settlement terms—
based on lawyer type. Instead, it seems there is much about jail strip-search cases that appears
not to vary based on the orientation of plaintiffs’ counsel. Still, a range of attitudes about




E-mail from Charles LaDuca, partner, Cuneo, Gilbert & LaDuca (Aug. 12, 2007) (on file with author).


See, e.g., Stephen C. Yeazell, Brown, The Civil Rights Movement, and the Silent Litigaiton Revolution, 57
VAND. L. REV. 1975 (2004); Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation:
The Influence of the Attorneys Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719 (1988);
Christine Jolls, The Role and Functioning of Public-Interest Legal Organizations in the Enforcement of the
(Richard B. Freeman et al. eds., 2005).

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attorneys fees is evident—for some but not all of the lawyers, fees are extremely important.131
This observation is descriptive rather than normative, but I should make clear that it does not
seem problematic to me; I am not one of “those who believe that lawyers should bring civil
rights actions out of the goodness of their hearts (perhaps while singing ‘Kumbaya’ or, for those
of a more lefty persuasion,’If I Had a Hammer’).”132 In addition, my interviews demonstrate
lawyers’ varying views about the threat of impending adverse legal change, and suggest (without
by any means establishing) that that range may be importantly connected to lawyer background.
Of course, this brief essay has not exhausted the topic of jail strip-search litigation. In
fact, the class of cases discussed here poses an enormously interesting field for research into the
relationships between appellate-court doctrine, trial-court litigation, and government operations.
If the law has been so clear for so long, why don’t jails follow it? What leads them to expose
themselves to multi-million dollar judgments? If the judiciary’s shift to the right is so
pronounced, why has that not already produced a change in doctrine? If there is a change in
doctrine, eventually, what will it mean for this kind of litigation, and for jail operations? Will the
evidently loose coupling between case law and jail policy stay as loose if the case law shifts
against plaintiffs in these cases? All these are important questions, but beyond the scope of this
short essay.


More generally, fees function as a vital impetus to civil rights enforcement by “private attorneys general.”
Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183, 205; Samuel R. Bagenstos,
The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. REV. 1

Samuel R. Bagenstos, Mandatory Pro Bono and Private Attorneys General, 101 NW. U. L. REV. 1459, 1459
(2007); see also Jeffrey S. Brand, The Second Front in the Fight for Civil Rights: The Supreme Court, Congress,
and Statutory Fees, 69 TEX. L. REV. 291, 373 (1990) (highlighting views by some that civil rights litigation “is not
part and parcel of ordinary practice, but is more in the nature of charity or volunteer work”).

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What I hope this essay has done is demonstrate two things. First, not only Galanter but
others have focused their work dealing with case cohorts on very large categories of cases—
asbestos claims, or employment litigation, for example. But Galanter’s insight—that
disaggregation promotes learning—is a powerful one, and it holds true even for a very small case
category such as jail strip-search litigation. Indeed, the small size of this case category makes it
manageable. Second, Galanter’s insistence that analysis include litigation’s participants is
similarly powerful. Even when (as here) differences among participants do not demonstrably
correspond to differences among case outcomes, they matter nonetheless to other aspects of
litigation and legal change.

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