This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: choosing class representatives, deciding on claims to present, making important tactical decisions, negotiating and ratifying a settlement agreement, and monitoring the settlement decree. The Article also describes how the California lawsuit resulted from, and interacted with, a prisoners’ movement that conducted three mass hunger strikes and garnered national and international attention. Ultimately, the Article uses the California narrative to develop a theory of participatory litigation that infuses political and legal representation with grassroots involvement.

Theories of political and legal representation have oscillated between a mandate form of representation, where the representative directly supports her constituents’ views; an interest form of representation, where the representative is presumed to have the same interests as those she represents; and an accountability form of representation, where constituents or clients delegate broad discretion to the representative subject to periodic voting or another mechanism for removal. Participatory litigation, in contrast, allows for collaborative, collective, and consensus-building interactions between the representative and those she represents. In this model, the representative and the client teach and learn from one another.

* Bessie McKee Walthour Professor of Law, University of Pittsburgh School of Law. I want to thank my research assistants, Alex Downs, Sarah V. Itzkoff, Alex Wilkerson, Julie Casey, Jaden Rankin-Wahlers, Andrew Calve, and Amira Montasser El Sawi for their research help, the University of Pittsburgh School of Law’s Document Technology Center for its work preparing this Article, and University of Pittsburgh law librarians Karen Sheppard and Kezia Lukombo for the help in submitting the Article. I also want to thank Dean Amy Wildermuth of Pitt Law for her support of this project.

The litigation that this Article recounts could not have been successfully undertaken without the inspiring and courageous collective solidarity and wisdom of those incarcerated at Pelican Bay State Prison, along with the tremendous work done by my colleagues at the Center for Constitutional Rights, Rachel Meeropol, Samuel Miller, Alexis Agathocleous, Azure Wheeler, Britany Thomas, our cooperating attorneys, Carol Strickman, Anne Weills, Marilyn McMahon, Charles Carbone, Rebecca Rabkin, Carmen Bremer, Greg Hull, Carole Travis, Matthew Strugar, Anne Cappella, and paralegals Claire Dailey and Linda Nakanishi. I thank my colleagues Jessie Allen and Deborah Brake, as well as Bill Quigley, Ellen Yaroshevsky, David Rudovsky, Samuel Miller, Rachel Meeropol, Carmen Bremer, Scott Morgenstern, Eve Wider, George Loewenstein, Art McDonald, Margaret Randall, Alice and Staughton Lynd, Terry Kupers, William Simon, William B. Rubenstein, Steve Schnapp, Todd Ashker, Gabriel Reyes, and Paul Redd for their helpful comments on drafts of the Article. The comments by participants of the Incarceration and the Law Roundtable were also very useful. Finally, I especially want to thank my wife Karen Engro for her insightful comments and editorial suggestions on drafts of the Article, and her encouragement of the project from beginning to end.