JAIL STRIP-SEARCH CASES: PATTERNS
AND PARTICIPANTS
MARGO SCHLANGER*
I
INTRODUCTION
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
3
way the system works.

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

Copyright © 2008 by Margo Schlanger. Permission is granted for distribution at or below cost to
prisoners or students in a class.
This Article is also available at http://law.duke.edu/journals/lcp.
* Professor of Law, Washington University in St. Louis. B.A., Yale College; J.D., Yale Law
School. The author may be reached at mschlanger@wulaw.wustl.edu. 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.
1. Fred R. Shapiro, The Most Cited Law Review Articles Revisited, 71 CHI.-KENT L. REV. 751
tbl.1 (1996).
2. 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).
3. Galanter, supra note 2, at 97.
4. 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].

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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’
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
11
in constructing a more refined picture of the relation between litigation and society.

This article 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. Plaintiffs’ lawyers include employees of publicinterest 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
5. 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.”).
6. Galanter, Conceptualizing Legal Change, supra note 4, at 235.
7. Id.
8. Id. at 240.
9. Id.
10. 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).
11. Galanter, Case Congregations, supra note 10, at 373.
12. As Stephen Daniels and Joanne Martin have summarized,
one 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

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of analysis Galanter highlights—the case category or the type of plaintiffs’
lawyer—matters more for outcomes and dynamics. I have previously argued
that plaintiffs’ counsel’s background and orientation is crucial to understanding
the framing and conduct of litigation.13 Here, however, differences among cases
brought by different kinds of lawyers, although present, are subtler than might
be expected.
II
JAIL STRIP-SEARCH LITIGATION: THE MIAMI CASE
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
Pre-Trial 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
14
like a bunny.

All charges against Haney were eventually dropped.
The Supreme Court has said very little about the lawfulness of jail stripsearches. 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 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
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).
13. 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].
14. 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,
http://clearinghouse.wustl.edu (last visited Mar. 27, 2008) [hereinafter Haney Statement].
15. Bell v. Wolfish, 441 U.S. 520, 558–59 (1979).

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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
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 “[m]ost 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

16. 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 Dep’t,
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
Dep’t, 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 Hodgers-Durgin v. de la
Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Kennedy v. Los Angeles Police Dep’t, 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 just cited here.
17. 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, 1014 (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”).
18. Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 1992).
19. Id. at 193.
20. Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000).
21. Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc).

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a detention facility. This view is contrary to the current circuit law on the subject, at
22
least insofar as misdemeanor arrestees are concerned.

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
23
those accused of misdemeanors as well as those accused of felonies.

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, given the Roberts Court’s emerging record in civilrights 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
28
out the policy.

During the winter of Judith Haney’s Miami arrest, the costs of blanket stripsearch policies were evident 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 3,800-word front-

22. Id. at 1284 (Carnes, J., concurring specially).
23. Id. at 1291.
24. 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, 496 F.3d 1288, 1312 (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 (2d Cir.
2001) (Cabranes, J., dissenting in part) (expressing dissatisfaction with circuit precedent requiring
“reasonable suspicion,” and arguing that the appropriate standard would by contrast “envision[] a
flexible, multi-factor inquiry,” that would more easily accommodate cavity search policies).
25. 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 http://epstein.law.northwestern.edu/
research/JCS.html (last visited Feb. 10, 2008). This article’s point depends on the web data posted
there.
26. See, e.g., Simon Lazarus, The Most Activist Court, AM. PROSPECT, June 29, 2007 (describing
recent decisions of the Roberts Court).
27. WILLIAM COLLINS, JAIL AND PRISON LEGAL ISSUES: AN ADMINISTRATOR’S GUIDE 227
(2004).
28. Id. at 231–32.

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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
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.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 few years since Los Angeles had settled a larger stripsearch 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
that even as she was being searched, her treatment was unlawful—a belief she
says was strengthened when she was released (thirty-five hours after her arrest)

29. See Elizabeth Fernandez & Stephanie Salter, Stories of Anguish: Jail Has Man Disrobe to
Photograph His Tattoos, S.F. CHRON., Nov. 16, 2003, at A1.
30. Bull v. City & 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, http://clearinghouse.wustl.edu (search for case JC-CA-0007 under
“Clearinghouse ID”) (last visited Mar. 27, 2008). Opinions in the 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).
31. 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.
32. Bull v. County of Sacramento, 01-AS-01545 (Sacramento County Super. Ct. filed Mar. 13,
2001). Some of the key documents, including the settlement agreement and claim forms, are available
at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (search for case JC-CA0043 under “Clearinghouse ID”) (last visited Mar. 27, 2008). Under the settlement, the lawyers
received $3 million; class administrators received $500,000; $410,000 was split among the seven named
plaintiffs; and the rest was distributed to the approximately 4,000 class members who submitted claim
forms. See also Denny Walsh, Judge OKs Strip-Search Accord: Historic Multimillion-Dollar Deal Settles
Jail Lawsuits, SACRAMENTO BEE, Oct. 23, 2004, at B1.
33. Musso v. County of Los Angeles, BC 249462 (L.A. Super. Ct., Jan. 18, 2001). Information is
available at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (search for case
JC-CA-0021 under “Clearinghouse ID”) (last visited Mar. 10, 2008); see also Sue Fox, $2.75 Million
Proposed for Cyclists Arrested in Protest, L.A. TIMES, Mar. 25, 2003, at B1.
34. 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, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008);
Troy Anderson, Ex-Inmates Win Record County Award, [L.A.] DAILY NEWS, Aug. 15, 2001, at N1.

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and she 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 also 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 California.36
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.
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 stripsearch practices and as a result of the lawsuit we have changed our policy. . . .

35. Haney Statement, supra note 14, at 4.
36. For a list of cases, search for “Merin” at the Civil Rights Litigation Clearinghouse,
http://clearinghouse.wustl.edu (last visited Apr. 1, 2008).
37. See Complaint at 2, Haney v. Miami-Dade County, No. 1:04-CV-20516 (S.D. Fla. Mar. 5, 2004);
Second Amended Complaint at 2, No. 1:04-CV-20516 (S.D. Fla., May 4, 2004), available, respectively,
as documents JC-FL-0012-0014 and JC-FL-0012-0001 at the Civil Rights Litigation Clearinghouse,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
38. Complaint at 5, Haney v. Miami-Dade County, No. 1:04-CV-20516 (S.D. Fla. Mar. 5, 2004),
available as document JC-FL-0012-0014 at the Civil Rights Litigation Clearinghouse,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
39. Order Denying Defendants’ Motion to Dismiss, Haney v. Miami-Dade County, No. 1:04-CV20516 (S.D. Fla. Aug. 24, 2004), available as document JC-FL-0012-0011 at the Civil Rights Litigation
Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
40. Id.
41. Telephone Interview with Randall Berg, Director, Florida Justice Institute (June 5, 2007).
42. Mediation Report, Haney v. Miami-Dade County, No. 1:04-CV-20516 (S.D. Fla.), available as
document JC-FL-0012-0010 at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu
(last visited Mar. 10, 2008).

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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
The new policy was filed with the court as part of the settlement, but not
entered as a court-enforceable injunction. Rather, 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
2006.47 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 1,312
claimants split the $4.55 million, with each person’s share based on the number
of times she was strip-searched and on the presence or absence of various
aggravating circumstances. The average award was about $3,500.49 Note that
the total attorneys’ fee award amounted to just sixteen percent of the total
settlement amount—about one-sixth, 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

43. 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.
44. See Miami-Dade County Corrections & 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 Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
45. 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. Fla. Apr. 13, 2005), available as
document JC-FL-0012-0008 at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu
(last visited Mar. 10, 2008).
46. 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,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
47. E-mail from Randall Berg, Director, Florida Justice Institute (Dec. 17, 2007) (on file with
author).
48. 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 they been
approved in writing by a supervising officer; each prisoner in this subclass was 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.
49. Id; E-mail from Randall Berg, Director, Florida Justice Institute (Feb. 12, 2008) (on file with
author).

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hard to justify in relation to the effort these cases take. So instead I do a lodestar
50
calculation with fully documented hours.

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 who
are 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 and the other at a civilrights nonprofit; a fairly large amount of money to each of the class
representatives; and a smaller amount of money to claiming class members.52
III
JAIL STRIP-SEARCH LITIGATION MORE GENERALLY
A. 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 led 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 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 turn fed the story to Chicago’s NBC-affiliate television
50. Telephone Interview with Mark Merin, civil-rights attorney (June 13, 2007).
51. See 28 U.S.C. §§ 1291, 1292 (2006).
52. In many counties in Florida, the settlement would have been paid not directly from the
County’s budget, but by the state’s sheriffs’ insurance cooperative; annual contributions by members
vary, but for example, Seminole County’s ordinary contribution to the cooperative amounted to about
1.25% of the Sheriff’s total budget of nearly $70 million, the year before the County settled a stripsearch 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).
53. A list of the cases I have located is available as Appendix A; it is posted at
http://schlanger.wustl.edu (last visited Mar. 10, 2008), under “Publications.”
54. Jane Does v. City of Chicago, 79 C 789 (N.D. Ill. 1984) (filed Mar. 1, 1979). Opinions on
various issues not discussed in the text accompanying this footnote are available at Mary Beth G. v.
City of Chicago, 723 F.2d 1263 (7th Cir. 1983), and Tikalsky v. City of Chicago, 687 F.2d 175 (7th Cir.
1982). For background information on this case, see Ellen Alderman & Caroline Kennedy, THE RIGHT
TO PRIVACY 3–18 (1997); Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last
visited Mar. 10, 2008) (search for case JC-IL-0011 under “Clearinghouse ID”).

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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 three dozen 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 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 seven- and eight-figure damage totals get noticed.60 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 “controvers[y]” 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

55. 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, and information about them is
available in the Peabody Awards Collection Archives, http://dbs.galib.uga.edu/cgi-bin/ultimate.cgi?
dbs=parc&userid=galileo&action=search&_cc=1 (last visited Mar. 10, 2008).
56. See Appendix A, supra note 53.
57. 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.”).
58. See, e.g., $2.5 Million Settlement in Schenectady County Strip Search Suit, PRISON LEGAL
NEWS, June 2007, at 18.
59. COLLINS, supra note 27, at 227.
60. 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].

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going into a jail.”61 That contingent often assumes that its views, which feel
mainstream to those who hold them, 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 about
Sacramento’s strip-search case. Notwithstanding solid circuit precedent against
them from 1984 on,63 “[c]ounty officials were stunned when a judge ruled
against them.”64
B. Participants
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 strip-search 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 may well feel
more harmed than men by a visual body-cavity search. After all, given the

61. Telephone Interview with Thomas Poulton, attorney for Florida Sheriffs’ Self-Insurance Fund
(July 11, 2007).
62. 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”).
63. 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 Dep’t, 901
F.2d 702 (9th Cir. 1990).
64. Mareva Brown, Strip-Search Ruling Forces Big Changes, SACRAMENTO BEE, June 7, 2003, at
A1. The case was Bull v. City & County of Sacramento, discussed in text accompanying note 32.
65. See DORIS J. JAMES, OFFICE OF JUSTICE STATISTICS, PROFILE OF JAIL INMATES 2002, NCJ
201932, at 2, 9 (July 2004) (rev’d Oct. 10, 2004), available at http://ojp.usdoj.gov/bjs/pub/pdf/pji02.pdf
(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).
66. 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—JC-CA-0021 and JC-MA-0009 respectively—at the Civil Rights
Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited Apr. 1, 2008).
67. Telephone Interview with Jennifer Duncan-Brice, Judge, Circuit Court of Cook County (Ill.)
(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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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 opposite sex;
they may be menstruating or pregnant, both conditions that may 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
70
back. They don’t have the means or the motivation or the resources.”

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 stripsearched—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 poor, and therefore difficult to track down, that plaintiffs’
claiming rates in these cases are usually only twenty percent or lower.74

68. See JAMES J. STEPHAN, OFFICE OF JUSTICE PROGRAMS, CENSUS OF JAILS 1999, NCJ 186633,
at 9 tbl.13 (Aug. 2001), available at http://ojp.usdoj.gov/bjs/pub/pdf/cj99.pdf (reporting that women are
thirty-four percent of jail staff and twenty-eight percent of correctional officers employed by jails).
69. 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).
70. Mareva Brown, Strip-Search Ruling Forces Big Changes, SACRAMENTO BEE, June 7, 2003, at
A1.
71. See JAMES, supra note 65 (describing the economic demographics of arrestees).
72. Interview with Randall Berg, supra note 41; Interview with Thomas Poulton, supra note 61.
73. Walsh, supra note Walsh, supra note 32.
74. Interview with Randall Berg, supra note 41. Note that twenty percent 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 one percent to five percent. 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 twelve percent 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).

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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 stripsearch litigation. The plaintiffs’ lawyers can be grouped into four subsets: some
work for public-interest organizations (for example, the ACLU or the Florida
Justice Institute); a few have a cooperating relationship with such a publicinterest organization but do most of their work in some other area, so that stripsearch 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 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 examining 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
75. Galanter, Case Congregations, supra note 10, at 372.
76. 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).
77. 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 LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL
RESPONSIBILITIES 3 (Austin Sarat & Stuart Scheingold eds., 1998).
78. Schlanger, Beyond the Hero Judge, supra note 13, at 2015.
79. Id. at 2020.
80. See, e.g., JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF
LAW REFORM AND SOCIAL CHANGE 35 tbl.1.6 (1978) (identifying numerous characteristics of lawreform 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 COURT-ORDERED 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. 3, 11
(Spring–Summer 1985) (“[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 Successful Legal Mobilization, 71 LAW & CONTEMP. PROBS. 1 (Spring
2008).

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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
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 strip-search 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 that 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

81. 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,
http://clearinghouse.wustl.edu (last visited Apr. 1, 2008). See also, e.g., Class Actions Injunctive Relief
Agreement, Riley v. Los Angeles, BC 239825 (L.A. Super. Ct. Sept. 1, 2001), available as document JCCA-0056-0001 at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited
Mar. 10, 2008). 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,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008). 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, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
82. 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).
83. 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. Fla. Apr. 13, 2005), available as document JC-FL-0012-0002 at Civil Rights Litigation
Clearinghouse, http://clearinghouse.wustl.edu (last visited Apr. 1, 2008); Stipulation of Settlement at 3,
Parilla v. Eslinger, No. 6:05-CV-850 (S.D. Fla. Dec. 29, 2006), available as JC-FL-0013-0003 at the Civil
Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008). Parilla
included additional injunctive relief relating to its overdetention claim. Stipulation of Settlement,
Parilla v. Eslinger, supra at 6–8.
84. 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 PRACTISING LAW
INSTITUTE/LITIGATION 199 (2007).

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common in other areas of prison and jail practice.85 In any event, many jail stripsearch 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, 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, preclude
assessing whether variation in payouts can appropriately be attributed to the
background of plaintiffs’ counsel.
The next four subsections examine more subjective evidence of differences
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 stripsearches and how important it is to end the practice. However, these interviews
did reveal 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 strip-search

85. For a discussion of jail and prison injunctive practice, see, for example, Schlanger, Civil Rights
Injunctions Over Time, supra note 60.
86. See Schlanger, Beyond the Hero Judge, supra note 13, at 2019 & nn. 124–28 (describing legalservices offices’ involvement in jail and prison litigation).
87. 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).
88. The only nonprofit 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
nonprofit 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 (Kansas); Lewisburg [PA] Prison Project; Massachusetts Correctional

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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 cases.”90
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 that his shop has stayed out of jail stripsearch 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 early 1990s):92 “Some of us
(like me) think that this is an accident looking for a Supreme Court to happen
in.”93 Discretion in this area may be more valuable than valor.
For these reasons, there are not many lawyers at public-interest
organizations to interview about recent jail strip-search cases. I was able to
Legal Services; North Carolina Prisoner Legal Services; Pennsylvania Institutional Law Project; Prison
Law Office (California); Prisoners’ Legal Services of New York; Prisoners’ Rights Information System
of Maryland; Prisoners’ Rights Office (Vermont); Prisoners’ Rights Project of the [NYC] Legal Aid
Society; Southern Center for Human Rights (Georgia); Southern Poverty Law Center (Alabama);
Youth Law Center (California). This list comes from the NAT’L PRISON PROJECT, AMERICAN CIVIL
LIBERTIES UNION, PRISONER’S ASSISTANCE DIRECTORY (15th ed. 2007), available at
http://www.aclu.org/images/asset_upload_file139_33694.pdf. There are also prisoners’ rights clinics at
various law schools that do a limited amount of work in this area. See AM. ASS’N OF LAW LIBRARIES,
LAW SCHOOL CLINICS SERVING PRISONERS (Jul. 12, 2004), http://www.aallnet.org/sis/ripssis/
clinics_serving_prisoners.pdf.
89. The ACLU’s litigation in Chicago was in the early 1980s.
90. 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.
91. E-mail from Elizabeth Alexander, Director, ACLU National Prison Project, to author (July 17,
2007) (on file with author).
92. 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. Mar. 14, 1979) (settlement agreement setting out
standards to govern body-cavity searches of jail inmates in New York City), available as document JCNY-0002-0011 at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited
Mar. 10, 2008); 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,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008). For information on this long-lived and very
contentious litigation, see Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y. Mar. 14, 1979), available at the
Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008) (search
for case JC-NY-0002 under “Clearinghouse ID”).
93. E-mail from John Boston, supra note 90; see also Interview with Randall Berg, supra note 41.

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interview just one—Randall Berg, director of the Florida Justice Institute, who
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.”95 Thus Berg’s two strip-search cases, each with substantial
attorneys’ fees awards, have supported his office’s other litigation.96 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 his decision to
take on the strip-search issue, Berg replied,
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
97
Evans v. Stephens.

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.98 In that case,
the parties used a version of the “bellwether trial” technique,99 trying some of

94. Interview with Randall Berg, supra note 41.
95. Id.
96. Strip-search cases can yield attorneys’ fees much higher than even 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) (2006), which sharply limits the
hourly and percentage attorneys’ fees and the 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.
97. E-mail from Randall Berg, supra note 47.
98. See supra note 54 and accompanying text.
99. See MANUAL FOR COMPLEX LITIGATION, THIRD § 33.28 (1995) (describing use of “bellwether
plaintiffs” in mass-tort cases); see also MANUAL FOR COMPLEX LITIGATION, FOURTH, § 22.93 (2004)
(describing use of “test case trials” to establish mass-tort settlement figures); FED. R. CIV. PROC. §
42(b); Alexandra D. Lahav, Bellwether Trials, GEO. WASH. L. REV. (forthcoming 2008), available at
http://ssrn.com/abstract=1018500. 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.”).

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the individual claims before juries as a way of setting realistic settlement
figures.100 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.101 Accordingly
(and as is usual), lawyers from Chicago’s large personal-injury bar were not
among the list of cooperating counsel; rather, these were liberal lawyers from
higher-status102 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.103
In another case of the same vintage, Hunt v. Polk County, 104 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 stripsearch 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 did not 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
105
money.

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.

100. 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, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
101. Telephone Interview with Fay Clayton, Partner, Robinson, Curley & Clayton (May 31, 2007);
Telephone Interview with Harvey Gross, supra note 100.
102. See JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR
(2005); JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF
THE BAR (1982).
103. Telephone Interview with R. Peter Carey, retired partner, Mandel, Lipton & Stevenson (June
13, 2007).
104. 551 F. Supp. 339 (S.D. Iowa 1982).
105. 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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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 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 policemisconduct 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 strip-search litigation as a piece of 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 class-action practice;
she reports that she works hard to build a real and individual relationship with
her clients. 106
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 for 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 strip-search cases—five jail class actions, and the rest individual damage
actions involving prisons and police departments.107 Friedman explained to me
that “class actions can be better for the lawyer than for the client” because they
take longer to settle and sometimes the instigating client ends up with less
money.108 On the other hand, he adds,
there 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
109
representatives or as a class member.

106. Telephone Interview with Jan Susler, supra note 55.
107. For a list, search for “Howard Friedman” at the Civil Rights Litigation Clearinghouse,
http://clearinghouse.wustl.edu/searchPeople.php (last visited Mar. 10, 2008).
108. 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”).
109. E-mail from Howard Friedman, civil-rights attorney, to author (Aug. 13, 2007) (on file with
author).

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His first strip-search class action, Mack v. Suffolk County,110 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.111 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.112 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 1,500 claimants.113
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 both 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

110. 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, http://clearinghouse.wustl.edu (last visited Mar.
10, 2008), under its case name or case code (JC-MA-0010).
111. Telephone Interview with Howard Friedman, supra note 108.
112. The class certification decision was made in February 2000. Mack v. Suffolk County, 191 F.R.D.
16 (D. Mass., 2000); summary judgment was granted in July 2001, Ford v. City of Boston, 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 JC-MA-0010-0001
and JC-MA-0010-0002 at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last
visited Mar. 10, 2008).
113. E-mail from Howard Friedman, supra note 109.
114. E-mail from Howard Friedman, supra note 109.
115. 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).
116. Telephone Interview with Barrett Litt, Partner, Litt, Estuar, Miller & Kitson (June 4, 2007).
117. Id.
118. Id.

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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, 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 classaction 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.
Charles LaDuca is one such lawyer. LaDuca’s firm litigates mostly
securities, anti-trust, and products class actions.124 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

119. For a list and more recent additions, search for “Barrett Litt” at the Civil Rights Litigation
Clearinghouse, http://clearinghouse.wustl.edu/searchPeople.php (last visited Mar. 10, 2008).
120. 468 F. Supp. 2d 1172 (C.D. Cal. 2006); for more information search for case JC-CA-0044 at the
Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
121. 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 Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 10, 2008).
122. E-mail from Barry Litt, Partner, Litt, Estuar, Miller & Kitson, to author (Aug. 13, 2007) (on
file with author).
123. 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).
124. 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.” Cuneo, Gilbert & LaDuca, LLP, http://www.cuneolaw.com/
areas/fed_lit.cfm (last visited Mar. 10, 2008).

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than for 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 $1,000 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 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.” 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
129
these cases, where applicable, because of the threat of a possible change.

125. Telephone Interview with Charles LaDuca, Partner, Cuneo, Gilbert & LaDuca (May 24, 2007).
Because fees need to be approved by the district court, lowball settlements can require some fancy
paperwork to make the attorneys’ fees look more reasonable. For example, a case with a total class of
3,000 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,
http://clearinghouse.wustl.edu (last visited Mar. 10, 2008); Doan v. Watson, 2002 WL 31730917, No. 994-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).
126. Interview with Charles LaDuca, supra note 125.
127. Id.
128. Id.
129. E-mail from Charles LaDuca, Partner, Cuneo, Gilbert & LaDuca (Aug. 12, 2007) (on file with
author).

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***
Observers across civil rights fields have long noted the connections between
the civil-rights, personal-injury, and class-action bars.130 But even within civilrights 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 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.
IV
CONCLUSION
Of course, this brief article 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

130. See, e.g., Stephen C. Yeazell, Brown, The Civil Rights Movement, and the Silent Litigation
Revolution, 57 VAND. L. REV. 1975 (2004); Stewart J. Schwab & Theodore Eisenberg, Explaining
Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as
Defendant, 73 CORNELL L. REV. 719 (1988); Christine Jolls, The Role and Functioning of PublicInterest Legal Organizations in the Enforcement of the Employment Laws, in EMERGING LABOR
MARKET INSTITUTIONS FOR THE TWENTY-FIRST CENTURY 141, 162–64 (Richard B. Freeman et al.
eds., 2005).
131. 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 (2003); Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of
“Abusive” ADA Litigation, 54 UCLA L. REV. 1 (2006).
132. 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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these cases? All these are important questions, but beyond the scope of this
short essay.
What I hope this article 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.