Resource: Crafting Complaints and Settlements in Child Welfare Litigation

By: Zach Strassburger

January 1, 2018

University of Pennsylvania Journal of Law and Social Change

Despite widespread criticism in legal scholarship bemoaning the inadequacies of institutional reform litigation, class-action lawsuits from public interest legal organizations have been the major driver of comprehensive child welfare reform over the past forty years. These legal claims are chaotic, wide-ranging and of questionable relevance to the facts, but the tendency of jurisdictions to settle means the complaints are the only narratives that get promoted in the media. Media portrayals of these narratives and sympathetic plaintiffs leads the public to understand government responsibility to youth in the foster care system as expansive, and advocates can use this broad understanding to address harms that are even less clearly related to a potential constitutional, statutory, or tort-based claim. The paper argues that settlements are a normative good for children in foster care, and that effective media advocacy will increase equity and efficiency for different groups of foster children in this process of change creation. Lawyers can make better use of media to force institutional defendants to settle even when the legal claims are weak, and careful use of media will allow for the addition of delay in permanency to the list of harms about which class-action foster care reform lawsuits file suit.