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  • Collective Representation and the Last MileInnovations Case Commentary: Protimos
  • Sean McDonald (bio)

While much of the discussion about legal empowerment focuses on adjusting systems to improve individual access to justice, Protimos has a different and unique approach: collective representation. By serving community-level interests through formal litigation, Protimos represents last-mile communities in systems that have historically ignored or marginalized them. When these actions succeed, they protect the homes and livelihoods of the populations who need them most. Within the legal services profession, too few organizations focus on the tremendous potential of emerging markets in low-functioning formal systems. Although one could make plenty of commercial arguments about service models that are accessible to low-resource populations, Protimos focuses on the development and empowerment that result from representing last-mile communities.

As many have observed, formal legal structures have largely failed to make the rule of law accessible to low-resource communities. However, the rising costs of formal legal services, the increasing complexity of administrative processes, and the emergence of new connection technologies, along with many other factors, are driving a period of innovation in dispute resolution systems around the world. Much of this work focuses on improving access to justice for individuals through systemic reforms, such as the adoption of alternative dispute resolution, user-centric design, legal information distribution, and new communication platforms. Of these, alternative dispute resolution (ADR), as a methodology and a catch-all term for informal systems, has achieved the most institutional recognition. That said, ADR processes typically rely on good-faith negotiations, which are less likely in situations involving large legal power disparities. Protimos fills that gap by enabling its client communities to bring actions in formal legal settings, thereby addressing a disparity in the design of ADR and legal services. [End Page 61]

By working at the community level, Protimos focuses on cultural and legal conceptions of collective rights to meet the basic needs of marginalized populations. This approach offers two major innovations: it prioritizes locally appropriate conceptions of rights and ownership, and it facilitates interaction between formal and community-driven mechanisms for distributing resources. Recognizing the difficulty of systemic reform, Protimos harnesses the benefits of collective action to deliver communal value and, gradually, progress.

Perhaps the most exciting aspect of this progress is the interaction between formal legal systems and customary mechanisms for resource management. The approach works equally well with communities that understand property rights as emanating from the individual or the collective. When a Protimos lawsuit succeeds, it protects interests that are typically managed by “informal,” customary, or community mechanisms. Its approach seeks to win collective resources through the formal system and then seemingly relies on the community to distribute those resources. Community management of resources and local dispute resolution hybridizes the implementation of a judgment, allocating authority to different parties at each stage of the process. This is one of the material differences between community representation and class-action lawsuits, which direct the distribution of judgments through formal means. Where litigation results in the community gaining assets, such as commercial protections for intellectual property, local management of those assets comes with the implied approval of the formal legal system. This is consistent with the prevalent trend of adopting ADR mechanisms to manage small claims and civil matters. By working with leaders in the client community to implement judgments, Protimos creates secondary benefits, including procedural precedent and capacity-building.

In many legal and administrative systems (especially common law systems), judicial decisions cumulatively define and interpret governance norms, informing similar subsequent cases. The value of precedent for protecting vulnerable communities is no different: each time Protimos wins a case, it creates at least the potential for similarly situated communities to take the same steps to seek justice. Although the formal value of a precedent varies significantly within and between legal and dispute resolution mechanisms, each positive outcome becomes a point [End Page 62] of reference for clients, practitioners, and the legal community at large. Taken alone, each case addresses only the issues raised by the litigating community. In the aggregate, though, cases that establish or protect the interests of last-mile communities begin to set, interpret, and apply increasingly inclusive social...

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