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Cause Lawyering and the Reproduction of Professional Authority : An Introduction
Abstract
Legal professions everywhere both need and at the same time are threatened by cause lawyering. They need lawyers who commit themselves and their legal skills to furthering a vision of the good society because this “moral activism” puts a humane face on lawyering and provides an appealing alternative to the value neutral, “hired-gun” imagery that often dogs the legal profession. Yet cause lawyering is everywhere a deviant strain within the legal profession. What distinguishes the morally activist lawyer is that she “shares and aims to share with her client responsibility for the ends she is promoting in her representation.” In so doing she elevates the moral posture of the legal profession beyond a crude instrumentalism in which lawyers sell their services without regard to the ends to which those services are put. Cause lawyers thus reconnect law and morality and make tangible the idea that lawyering is a “public profession,” one whose contribution to society goes beyond the aggregation, assembling, and deployment of technical skills. In this way lawyers committed to using their professional work as a vehicle to build the good society help legitimate the legal profession as a whole.
... Reviewed Article 203 morality' (Sarat & Scheingold, 1998: 3) by challenging the central activity of the legal profession, namely the provision of legal services in exchange for payment. This is achieved through amending aspects of the social, political, or economic status quo. ...
Unregulated law clinics in England and Wales are prohibited from directly offering immigration advice and assistance. This article argues that this restriction should not be a barrier to teaching immigration law. Kant’s duty-based ethics and his cosmopolitan right can provide a useful normative framework for challenging the political status quo in relation to the regulation of law clinics and policies affecting migrants. It is argued that introducing normative values into Clinical Legal Education can address the limitations of the conventional ‘hired-gun’ model and engender students to a more holistic approach to lawyering. In other words, a model which promotes the causes of third parties.
... Para un panorama internacional del activismo judicial y de la especialización de la militancia de los abogados, verSarat & Scheingold (1998y 2000. Para el caso brasileño, verEngelmann (2006: 2). ...
... Called "cause lawyers," these lawyers use their professional expertise to advance political and social goals (Sarat & Scheingold, 1997). "Cause lawyers" have been studies in the United States, in a variety of international contexts and in the global community (Sarat & Scheingold, 1998, 2001. In response to growing critiques in the research on 'cause lawyering,' that all of the work was focused on lawyers for the disadvantaged (Halliday, 2006), a growing area of scholarship studying conservative 'cause lawyers' has emerged which provides an important new perspective in the study of political lawyers (Southworth, 1999(Southworth, , 2000Teles, 2010). ...
This essay argues that one way to “think law” is to think “law in motion”. I will argue that a “law in motion” perspective embodies four core elements or ‘multiplicities’ which are: (1) multiple methodologies; (2) multiple perspectives; (3) multiple vocalities; and (4) multiple media including objects. As will become evident by the number of inspiring colleagues that have articulated rationales and perspectives for each of these multiplicities, these are not original ideas for which I can claim credit. And yet, the attempt to put them together in a comprehensive schema with consideration for all four of the multiplicities in the same project, demonstrates that a law in motion perspective can bear new fruit. To do this, my article combines analysis of some of the research in Law & Society that exemplifies these trends and my own research on employment civil rights litigation to interrogate the necessity of a “multiple” approach for our “multiple futures.”
... The extensive literature on "legal mobilization" -broadly, "the idea that the law has the potential to be an effective instrument for political or social change" (Vanhala, 2011: 6) -has developed a wide understanding of the roles, motivations, and effects on social movement campaigns of one set of the many players in the courts -in particular, legal professionals. The emphasis is foremost on cause lawyers, those who "commit themselves and their legal skills to furthering a vision of the good society" (Sarat and Scheingold, 1998: 3) and so help movements "define the realm of the possible" (Sarat and Scheingold, 2005: 10), on collective litigation strategies articulated explicitly around rights claims making (Scheingold, 2010;McCann, 1994;Epp, 1998) and, on "legal opportunity," where the emergence, progress and outcomes of litigation are influenced, if not determined, by the conditions of access to the court arena (the attribution of "standing"), the availability of potential issue frames ("legal stock"), and the extent of judicial receptivity (Hilson, 2002;Andersen, 2005;De Fazio, 2012). ...
In this important book, Jan Willem Duyvendak and James M. Jasper bring together an internationally acclaimed group of contributors to demonstrate the complexities of the social and political spheres in various areas of public policy. By breaking down the state into the players who really make decisions and pursue coherent strategies, these essays provide new perspectives on the interactions between political protestors and the many parts of the state“from courts, political parties, and legislators to police, armies, and intelligence services. By analyzing politics as the interplay of various players within structured arenas, Breaking Down the State provides an innovative look at law and order versus opposition movements in countries across the globe.
... Are capital trial defenders cause lawyers? To the extent that they oppose state killing and sometimes illuminate social inequality, the defenders studied in this project are engaging in something beyond the parameters of their particular trials, and they fall on the relatively 'professional' side of the continuum of cause lawyering delineated by Sarat and Schiengold (1998). However, considering that they are unaware of, avoid, or suppress subversive arguments within the expansive discursive space afforded by penalty phase proceedings, they may be 'forgetting the future' precisely so that their clients may avoid a death sentence. ...
This article aims to push the boundaries of definitions of capital cause lawyering to include a more potentially radical ‘cause’ that takes on one key ideological underpinning of state killing: individualism. This article studies whether and how capital trial lawyers take up a ‘radical’ cause by challenging individualism. To the extent that they oppose state killing and illuminate social inequality, the defenders studied in this project engage in something beyond the parameters of their particular trials, and thus fall partially within current definitions of cause lawyering. However, considering that they are unaware of, avoid, or suppress subversive arguments within the expansive discursive space afforded by penalty phase proceedings, they may be ‘forgetting the future’ precisely so that their clients may avoid a death sentence. Rather, defenders construct narratives that portray a liminal conceptualization of the influence of social forces on human free will, a concept known in the defense bar as ‘diminished autonomy’.
... 27 The dilemma may be looked upon as even involving conflicts of interest, if the organization litigates the case on behalf of individuals. Individuals may be much more interested in the outcome of the specific dispute at stake, as distinguished from the organization that may be much more concerned about the impact of the litigation on its overall agenda (Bell 1976;Ellmann 1992;Sarat & Scheingold 1997). These issues call for more research as to the aims, motivations, and patterns of behavior of interest groups using litigation as a primary means of collective action. ...
The question of whether and to what extent interest groups are more successful than other parties in litigation is the subject of many debates among social scientists. Previous works in the field concentrated on checking outcomes of cases that were disposed of by courts in officially published final decisions. We sought to analyze not only final court decisions but also the outcomes of out-of-court settlements. Drawing from Marc Galanter’s hypothesis that groups, especially those who are “repeat players,” are likely to use out-of-court settlements more often and more efficiently than other litigants (Galanter 1974), we measured actual case outcomes of petitions brought before the Israeli High Court of Justice. We found that groups in general, and “repeat player” groups in particular, achieved a success rate significantly higher than other litigants. We also found that the relative advantage of groups in litigation is the result of their ability to reach out-of-court settlements with government agencies.
The existing literature has long recognized that cause lawyers play important roles in fighting for political justice. However, the implications of how the state responds to these lawyers have yet to be comprehensively explored. This article argues that the state in Hong Kong has co-opted “state-embedded lawyers” against cause lawyers for the counter-mobilizing of public opinion. Thus, both cause lawyers and state-embedded lawyers engage in political battles with polarized objectives, either for democratic reform or regime stability. Theoretically, this paper contributes to analyzing the state's response to cause lawyering and its counter-mobilization actions by developing state-embedded lawyers. Empirically, the case of Hong Kong helps enrich the existing literature by exploring the confrontational relations within polarized legal professions. The conclusion shows that such tensions can stimulate further polarization with different business paths between lawyers, consumption patterns among citizens and understanding of the rule of law and responses from mainland China.
Clinical Legal Education programmes now take place in most law schools in England and Wales. However, legal education continues to be predominantly focused on the analysis and application of rules, doctrines, and theories to hypothetical scenarios or essay questions. This form of pedagogy either minimises or ignores the role of the client in terms of supplying lawyers with knowledge pertinent to their case. In other words, it overlooks the fact that the lawyer's acquisition of knowledge is not confined to technical rationality. This article seeks to achieve three broad aims. First, to contribute to the debate concerning the epistemology of reflective practice. Second, to develop a theoretical reflective cycle, informed by Kant's transcendental idealism, which seeks to maximise knowledge acquisition in legal education, namely knowledge supplied by the client. Third, to address implicit bias using the proposed reflective cycle. An optimal pedagogy for using this cycle is Clinical Legal Education, namely live client clinics.
Countries undergoing or recovering from conflict and authoritarianism often face profound rule of law challenges. The law on the statute books may be repressive, judicial independence may be compromised, and criminal justice agencies may be captured by powerful interests. How do lawyers working within such settings imagine the law? How do they understand their ethical obligations towards their clients and the rule of law? What factors motivate them to use their legal practice and social capital to challenge repressive power? What challenges and risks can they face if they do so? And when do lawyers facilitate or acquiesce to illegality and injustice? Drawing on over 130 interviews from Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia, this book explores the extent to which theoretical understandings within law and society research on the motivations, strategies, tactics, and experiences of lawyers within democratic states apply to these more challenging environments.
www.vfst.de/sites/vfst/files/2022-04/wmv_mediation_moves_e-book_978-3-96117-102-6_geschuetzt.pdf [Open Access PDF].
mediation moves is a vibrant book that captures a global snapshot of mediation as a dispute resolution procedure, a professional service, and a concept based on a set of principles and values. Over the past four decades, the potential of mediation has unfolded and increasingly gained traction across the globe. It continues to move into new areas of conflict and fields of practice.
Edited by mediation movers from three countries – Germany, Denmark and Singapore – and filled with contributions from around the world, this unique work reveals new perspectives on mediation and illustrates the diversity of approaches in mediative conflict management. Whether you are interested in legal systems, organisational development, peace dialogues and societal change or in innovative approaches to technology or training and education, this volume has much to offer.
Written in accessible language by practitioners and academics, mediation moves is a fascinating kaleidoscope and a valuable contribution to the international discourse on mediation and conflict management.
Countries undergoing or recovering from conflict and authoritarianism often face profound rule of law challenges. This book is about how lawyers as ‘real people’ navigate these challenges. How do they exercise resistant agency and at the same time maintain a sense of professional legitimacy? How do lawyers working within such settings imagine the law? How do they understand their ethical obligations towards their clients and the rule of law? What factors motivate them to use their legal practice and social capital to challenge repressive power? What challenges and risks do they face? Are there particularly gendered consequences for ‘taking on’ legal resistance in such contexts? And when do lawyers facilitate or acquiesce with injustice, thus becoming part of the problem? Drawing on over 130 interviews conducted during field research in Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia, McEvoy, Mallinder and Bryson seek to extend existing theoretical understandings of law and society and cause lawyering in particular by exploring their application (or not) in these more challenging environments.
This article is about the relationship between legal activists, foundations, and social movements. It is a study of the Mexican American Legal Defense and Educational Fund (MALDEF) the largest and oldest Latino civil rights law organization in the United States. Established in 1968, MALDEF is an organization of cause lawyers, attorneys who devote most or part of their professional lives to or who are closely identified with social justice movements. MALDEF is primarily dependent on the Ford Foundation, which issued the first grant that created the organization. This essay is a study of MALDEF in its first five years of operation a time when community activists pressured its lawyers for legal representation while the Ford Foundation insisted that it concentrate on legal reform. These irreconcilable demands and MALDEF’s compliance with the Ford Foundation’s demands illustrates the impact that lawyers and philanthropy can have on the course of Latino social movement politics. This research also points to the impact that foundations, corporations, or wealthy individuals can have on the representation of minority political interests.
While cause lawyering has attracted abundant scholarly attention, the factors contributing to such movements in nondemocratic environments remain understudied. This article evaluates existing explanations of strategic litigation and finds that emphases on legal opportunity structure and resource mobilization overlook cases where litigation is used to expose and challenge existing constraints. This inductive study of revolutionary Ukraine shows that litigation is pursued despite unfavorable legal opportunity structure and may be triggered by state repression, rather than constrained by it. I argue that a democratic revolutionary movement in the country offered the necessary social resources for cause lawyers to succeed.
This article aims to carry out a sociological survey of the Brazilian legal field in the 1990s. To this end, the relationship between the diversification of the legal sphere and the legitimisation of definitions of the Law in Brazil over the course of the 1990s were investigated. The close match between the differentiation of the teaching of the Law, as a place for producing definitions of legal problems, and the mobilization of certain uses of the legal profession and of the careers of State during this period was analysed. This relationship allows one to gather the emergence of the academic career as a space for the production of specific conceptions and uses of the Law. This process is intimately linked to the repositioning of jurists in the sphere of power in Brazil, after the changes in the country's political landscape that have their institutional expression in the promulgation of the 1988 Constitution.
DOI: 10.12957/dep.2016.19526 Resumen El presente articulo propone presentar una serie de resultados de una investigacion socio juridica y empirica conducida en el area de profesiones, haciendo especial hincapie en la identidad profesional de abogados/as ligados al activismo, quienes se vinculan a organizaciones sociales en Argentina. Utilizaremos el marco teorico de la sociologia reflexiva de Bourdieu, para preguntarnos por aquellos “espacios posibles” que desafian lo establecido como “juridicamente pensable” en el campo juridico. Finalmente, se presentaran resultados que nos permiten de manera conclusiva reflejar practicas y discursos alternativos en el ejercicio profesional. Palabras-clave: identidad profesional; abogados activistas; organizaciones sociales; politica. Abstract This article aims to present a series of results of a socio-legal and empirical research carried on the topic of professions, making an especial emphasis in the professional identities of lawyers linked to activism (cause lawyers), who are connected with social organizations in Argentina. I will use the theoretical frame of Bourdieu’s reflexive sociology to inquire into the “possible spaces” that challenge what is established as “legaly thinkable” in the legal field. Finally, I wil present the results that allow to conclusively reflect on alternative practices and discourses in the professional practice. Keywords: professional identity; cause lawyers; social movements; politics and law.
Each year, approximately 1,500 Chinese youth (typically aged 15?17) migrate alone and clandestinely to the United States. While most intend to advance themselves and their families socially and economically, not all are immediately successful: some are apprehended and placed in removal proceedings. Here, immigration cause lawyers are tasked with presenting clients who might otherwise be termed ?economic migrants? as uniquely vulnerable and deserving of legal status. Drawing on extensive ethnographic research, this article confronts a disconnect between the forms of belonging many young Chinese migrants prioritize?belonging to the workforce and to transnational kin and peer networks?and lawyers? strategic disregard for these situated identities. It asks: How do young migrants reconcile their largely autonomous maneuvering with the accounts put forth by their attorney?accounts of cultural coercion, parental deficiency, and unagentive ?children?? What forces give rise to these narratives, and what are their consequences for clients, and for lawyers? Tracing the utilization and suppression of meaningful identities in various institutional, kin, and community contexts, this article illuminates the ways in which young migrants? pursuit of one form of status, namely legal, powerfully impacts their valuation and attainment of other, more discrete markers of success.
Conflict among Thailand’s legal advocates for popular causes over the legitimacy of Thailand’s two twenty-first-century coups raises questions about the meaning of the rule of law. The general perception of inexorable globalization of an international interpretation of the rule of law and of cause lawyers as one of its important vectors runs counter to the experience of developing societies where rule of law is being adapted to the meaning of nation and individual identities informing everyday lives and the relationship between a society and its government. This essay uses career narratives of Thai cause lawyers to illustrate this point by examining sources of the rule of law’s meaning, including experiences shared by each generation of cause lawyers and communities of practice shaping individual careers and identities. Their career narratives suggest the importance of continuing relationships with social movement leaders on beliefs about Thailand’s readiness for democracy and meaning of a rule of law.
The article intends to supply with elements the analysis of the relation between the phenomenon of internationalization of Law and the emergency of lawyers engaged in the judicial representation of collective causes. Two dimensions are analyzed: a first one displays a exploratory panorama of the causes in the national and international scene. One second dimension of analysis approaches representative cases of promotion of causes in the decades of 1990 and 2000. These two dimensions allow to advance the hypothesis of that the political redemocratization and the constitution of international nets of circulation of political and legal causes contribute for the definition of the profiles of judicial activism.
The ‘resolutions movement’ – a popular political mobilisation guided by lawyers, and expressed in exclusively legal terms and orientated towards legal objectives – has been an important expression of popular resistance to contemporary US counterterrorism policy. This article uses the resolutions movement as a vehicle for critically evaluating the cause lawyer literature and for reconceptualising ‘cause lawyers’. The article discusses two different approaches to the political implications of lawyering. The first approach draws on the ‘cause-lawyering’ literature that appears initially as a perfect context for analysing the movement. However, detailed examination shows this approach to be premised on a strong dichotomy between law and politics, something that impedes analysis. To overcome the resulting aporia, a ‘strategic-relational’ approach, which sees both law and politics as social relations and practices, is proposed as an alternative. This allows a more nuanced discussion of the law–politics relation that facilitates analysis of the movement and leads to a set of proposals capable of enabling cause-lawyering studies to transcend its conceptual rigidity.
Pretende-se fornecer elementos para a análise da relação entre o fenômeno de internacionalização do direito e a emergência de advogados engajados na representação judicial de causas coletivas. São analisadas duas dimensões: uma primeira expõe um panorama exploratório das causas coletivas no cenário nacional e internacional. Uma segunda dimensão de análise aborda casos representativos de promoção de causas nas décadas de 1990 e 2000. Estas duas dimensões permitem avançar a hipótese de que a redemocratização política e a constituição de redes internacionais de circulação de causas políticas e jurídicas contribuem para a definição dos perfis de ativismo judicial.
This article aims to carry out a sociological survey of the Brazilian legal field in the 1990s. To this end, the relationship between the diversification of the legal sphere and the legitimisation of definitions of the Law in Brazil over the course of the 1990s were investigated. The close match between the differentiation of the teaching of the Law, as a place for producing definitions of legal problems, and the mobilization of certain uses of the legal profession and of the careers of State during this period was analysed. This relationship allows one to gather the emer- gence of the academic career as a space for the production of specific conceptions and uses of the Law. This process is intimately linked to the repositioning of ju- rists in the sphere of power in Brazil, after the changes in the country's political landscape that have their institutional expression in the promulgation of the 1988
Taking both an event-centered and a process approach to cause lawyering, the chapter asks: (1) if, when, and how working with movements can lead to one being functionally seen as a cause lawyer and (2) whether researchers should include “hired gun” and state attorneys in the cause lawyering conversation. These questions are addressed by seeing how various cause lawyer qualities are exhibited by a range of attorneys involved in anti-abortion protest regulation cases. The research suggests that reasons exist to view previously excluded attorneys through the cause lawyering lens, and to continue pursuing the cause lawyer qualities discussed here.
The traditional and most common conception of cause lawyers has viewed them as necessarily oppositional to the state, leftist, and, at best, transgressive. This conception is significant to our analysis because of its tendency to treat “the state” as a rather singular arena of power – an “it” – rather than a multi-dimensional entity made up of competing institutions and personnel. Following work on the disaggregated and embedded state, we suggest that conflict and competition among state institutions and state personnel allow cause lawyers and state actors to engage in mutually-beneficial action in service of their agendas. Litigation has important benefits for both cause lawyers and state actors: within the arena of law, processes that usually require the backing of large constituencies in the context of majoritarian institutions require, instead, convincing legal arguments. We briefly present evidence from two highly disparate cases of similar processes of interaction among cause lawyers and state actors in Vermont and Israel, which we believe indicates that this type of interaction is far from idiosyncratic.
A partial replication of Jack Katz's (1982) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty-five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present-day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.
Can courts initiate meaningful political change ? In 1988, the Israeli High Court of Justice pronounced two landmark decisions in favor of women's rights and against state religious authorities, resulting in major political changes at the institutional and social levels. The Court was able to begin this protracted conflict due to a process of informal and formal interactions within the "judicial community". Cause lawyers for left-wing social movements were part of this community, which was, above all, a locus of norms-generation over time. The High Court ultimately decided cases to challenge the institutional autonomy of religious authorities.
This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’ per se.
This article proposes that corporate lawyers be studied as committed to their clients, asking how they advance exercises of power by those whom they have chosen to represent. Currently, corporate lawyers are studied as independent from their clients, asking how they resist client demands. Such research continues despite repeated findings that corporate lawyers are not independent. This article explains the puzzling persistence of independence by cultural understandings of both professionalism and law. It recovers a submerged historic voice in which corporate lawyers are judged by their position in a network of relations. It argues that it was the organization of the corporate law firm as a factory which allowed it to become a professional ideal. Market competition has led corporate law firms to move away from a factory model to one in which commitment to clients, not independence from them, is the organizing principle.
The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign
practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic,
and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics
that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision
making. Looking abroad, the essay emphasizes public law litigation as a meditative institution that facilitates political
action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration.
Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed
comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and
the ubiquity of complex, not dichotomous, relations.
A study of the image of lawyers on television, and more broadly popular culture, is important because "on that image may rest part of the willingness of law students to become lawyers."34 Research into the intersection of popular culture and law is important if we are to understand the motivations and expectations of our law students. The more we understand them, the better we can teach and explore with them their constructions oflegal identity. Although the stage of final conclusions has not yet been reached, having only completed a pilot study, what has been considered in this paper is a speculation that television helps to reinforce the positive view students have of their chosen careers. Metaphorically, students ideally want to wear the chastity belt and run from the scarlet letter. To them, a lawyer must ethically be without reproach and must have an unswerving interest in humanity. They disassociate themselves from all that the red letter symbolises, and in contrast identify with and aspire to the virtuous altruism of serving the community in fighting for justice and upholding ethical standards. And yet, underlying such pure desires is a latent recognition that an ethical approach to lawyering is not easily delineated, and that remaining true to the chastity belt may not always be appropriate. While such an exploration beyond the black and white approach to ethical lawyering is to be encouraged among our developing law students, it should be remembered that also lying dormant beneath altruistic desires is the attraction of the high lifestyle, money and status. It lies concealed just waiting for the right moment to overtake their nobility and selflessness and abuse the students' penchant for moral pluck. If this does indeed happen, then just like the bearer of any scarlet letter who would have been aware of the consequences of her sin, the student may very well ask themselves whether the success and notoriety they achieve will have been worth the risk.
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