CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. Austin Sarat and Stuart Scheingold (Editors). New York: Oxford University Press. 560 Pages. Cloth $55.00. Paper $19.95. ISBN 0-19-511319-5.
Reviewed by Paul E. Parker, Social Science Division, Truman State University. Email: Parker@Truman.edu.
Professional ethics obligate attorneys to represent the interests of their clients, whomever they may be. Coupled with our propensity to define justice in procedural terms, one result is the "value-neutral, 'hired-gun' imagery that often dogs the legal profession" (p. 3). To counter this hired gun image, the legal profession needs its Naders and its Marshalls and its Ginsburgs -- the true-believers, motivated by a moral cause. But these moral crusaders also extract a cost: "Cause lawyering exposes the fact that [the profession's neutral stance] is contingent and constructed, and in doing so, raises the political question of whose interests the dominant understanding [of neutral lawyering] serves." (pp. 3-4).
That big-picture question is left to the reader, while the contributors raise a series of smaller questions:
What is cause lawyering, and how does it differ from other styles/kinds of lawyering? Who are cause lawyers, and what are the social, political, and professional conditions that make it possible for lawyers to devote their professional lives to 'moral activism'? What motivates them to work outside of the professional mainstream, to sacrifice income, prestige, and in some countries, risk their lives? What are their law practices like? How do they fund the representation of marginalized interests and impecunious clients? Do they organize their work settings in ways that are consonant with the political values they are pursue? (sic) And how do they go about advancing the causes for which they work? To what extent do they limit themselves to conventional legal strategies, and to what extent do they ally themselves with social movements in pushing the boundaries of law and politics? (p. 4)
These questions make for an ambitious project. To expect complete answers is foolhardy, but there is much that is praiseworthy in raising them.
Let's begin with definitions. What does it mean to be a cause lawyer? As befits a text that is trying to break new ground, and as befits work located in the law and society movement which discovers and explicates antimonies and paradoxes and constitutive relations in law, cause lawyering is not just one thing: "providing a single, cross culturally valid definition of the concept is impossible." (p. 5) So rather than a definition, in the introductory essay Sarat and Scheingold discuss the parameters of cause lawyering: "We wish ... to acknowledge that cause lawyering is a contested concept and to identify the terrain on which this contest takes place."(p. 5) A main contribution of this volume is that it introduces some of this terrain, and invites readers to engage in the contesting.
For those looking for more guidance, we have some indication of what cause lawyering is from the set of questions reproduced above: a cause lawyer is one who works out of the professional mainstream, at financial if not personal cost, engaging in moral activism for marginalized clients. And a few of the contributors provide their perspectives of cause lawyering, referring to it variously as "lawyering for the good" (Carrie Menkel-Meadow), "speaking law to power" (Richard Abel), "impact lawyering" (John Kilwein) and "critical lawyering" (Louise Trubek and M. Elizabeth Kransberger). Perhaps the most thorough definition comes from Stephen Meili, who identifies cause lawyering as, "not-for-profit legal work with and/or on behalf of individuals or groups who cannot afford to hire a lawyer, the ultimate aim of which is to achieve progressive social change." (p. 512, note 2)
Notably and notedly missing is a treatment of right-wing cause lawyers, attributed to the fact that they are a newer and less studied phenomenon (page 25, note 13). Also underdeveloped is the role of the "hired-guns" in serving causes, if only by accident; does one have to intend to do good and sacrifice income? Why cannot A CIVIL ACTION protagonist Jan Schlichtmann be a cause lawyer? This seems to be ruled out by definition. And yet Ronen Shamir and Sara Chinski find that the lawyers for the cause may offer less personal attention and may experience more burnout and turnover than the lawyers who work the same type of cases as part of their struggling entrepreneurial practice.
Not having a uniform definition of cause lawyering is fine; more interesting for our conception of law in society is what it is that cause lawyers DO. One way to answer this question is substantively -- what causes do cause lawyers support, and by what strategies? The contributors treat us to stories of lawyers: for the poor in Pittsburgh (Kilwein); for Bedouins in Israel (Shamir and Chinski); for immigrants in Britain (Susan Sterett); and, bearing witness to the death penalty in the U.S. (Sarat), among others. So cause lawyering takes place in numerous locales and with varied clientele -- a variation in part structured by social conditions across time, as the rewarding essay by co-editor Scheingold reveals.
Regarding strategies, some cause lawyers might work on behalf of individual clients, while others seek to represent a cause. Indeed, both Kilwein (the poor in Pittsburgh) and Shamir and Chinski (the Bedouin in Israel) discover these differential motivations in lawyers in the same field. Additionally, cause lawyers may work for "social transformation" (Michael McCann and Helena Silverstein, researching lawyers for pay equity and animal rights), while others engage in defensive strategies, such as attempting to thwart the state's determination to kill some of its citizens (Sarat). Finally, the last section of the book includes essays on cause lawyering in nonliberal regimes (see especially Stephen Ellman's "Cause Lawyering in the Third World" and Meili's "Cause Lawyers and Social Movements").
Putatively about lawyers and lawyering, this book is most helpfully about the institution of law itself. Across legal systems we see cause lawyers behaving in various manners for diverse causes. And that's to be understood: liberal common law will permit lawyering unthinkable under a military regime, and just not directly possible under a socialist or code law system. For my money, then, the four essays by Ellman, McCann and Silverstein, Meili, and Abel most directly and usefully address the power created and enforced by law -- power which consequently provides both opportunities for and challenges to using law to combat unjust regimes and relations. Repeatedly we are faced with the difficulty of drawing the boundaries between law and politics. And that is the payoff of the book.
The book then succeeds in fulfilling the first part of the Oxford Socio-Legal Studies Series' goal of "exploring the role of law in society for both an academic and wider readership" (no page). But the strength of the volume -- many papers, each considering the significant phenomenon of cause lawyering from different angles -- reveals a weakness both in the structure of the book and in the method common to the law and society movement it is a part of. And this threatens the second part of the above goal, that of reaching a wider audience.
Structurally, there is too much here. While the varied causes and strategies discussed are interesting, and while charitably one might argue that in an exploratory work we need to hear different voices and perspectives, there must be limits. With 16 papers and 576 total pages, most readers will wish for more editing and less volume. And 1,653 footnotes (give or take) is simply silly.
That there are so many papers is of course due in part to the interpretivist sociological method employed throughout, whereby most authors explore a narrow case; to get the big picture, one needs lots of cases. This is unfortunate, because the predictable result is unevenness among essays. Further, although the papers were written for this volume, it would be a stretch to call them all original. For instance, Menkel-Meadow's work on altruism and lawyering is well-known (if its new to you, you can investigate one of the dozen other works she self-cites). And some of these works are more useful for their substantive content than any discussion of the theoretical concept of cause lawyering that is briefly appended. The danger is to have research which is less original -- some might even say stale -- such as George Bisharat's work on Palestinian land lawyering, the interviewing for which was done in 1984-85. If causes are socially constructed, surely research is too, and research conducted eight years before this project was conceived seems likely to have been done with a different set of questions.
Perhaps this criticism is unfair to lay on this project, which by its nature is eclectic and exploratory; why not use extant studies to investigate the parameters of this concept? But if we want to KNOW something, or at least talk about it, we need tighter parameters. You need not take my word for it. Consider the following, which is a substantially excerpted footnote by Menkel-Meadow: "Austin Sarat's powerful report of the death penalty lawyers he studied draws on an evocative claim that these lawyers keep working,..., because they are 'writing a story' or 'making a record' or 'making history'. ... Would I write a different story from Austin about these lawyers? How do we construct the explanations or 'narratives' about their goals, purposes, and motivations?" (p. 66, n. 140 emphasis added). For those are interested in generalizable theory, these two questions hit precisely why those writing stories and narratives run the danger of singing to the choir.
Presumably, those who find the methodology copacetic will be comfortable with phrases like "dialogic empowerment" (p. 185) and "foregrounds the complexity" (p. 522), and occasional sentences like, "This approach does not discount ideology but understands ideology more impersonally as modes of cultural knowledge developed through material activity in particular institutionalized settings." (p. 278) It is not how I would write if I wanted to reach a wider audience. Finally, those whom I would most like to read the book -- undergraduates majoring in political science as a stepping stone to law school -- would need substantial and patient guidance.
And this, in the end, is regrettable, for there is much to learn here. Consistent with the "defensive strategy" of lawyering, these scholars are engaging in the defensive strategy of social science. By undercutting the model of legal formalism, they invite us to question the professional responsibilities of all lawyers (and, indirectly, scholars). Attorneys who provide representation to whomever pays their fees clients are fulfilling a professional obligation, but this professional obligation frees them from having to think about their connection to the greater polity. Are they just being "good soldiers"? This work does not pretend to prepare us for the transformation, but by raising this question, it could aid in doing exactly that.
REFERENCES
Harr, Jonathan. 1995. A CIVIL ACTION. New York: Random House.