How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?

Date01 September 2014
Published date01 September 2014
How Do Cause Lawyers Decide When and Where
to Litigate on behalf of Their Cause?
Scott Barclay Daniel Chomsky
In this article, we begin to respond to the deceptively simple question: How do
cause lawyers decide when and where to litigate on behalf of their cause? We
consider the choice of location and timing faced by cause lawyers when more
than one jurisdiction evinces a suitable legal environment for pursuing litiga-
tion on their cause. To consider this choice, we use evidence from the timing
and actions of cause lawyers in the marriage equality cases in the United States
from January 1990 through December 2004. And, we show the value in
utilizing methods that are relatively novel in cause lawyering research—
statistical models—to consider the apparent commonalities, beyond a suitable
legal environment, across locations and time periods that might prompt cause
lawyers into action.
In this article, we begin to respond to the deceptively simple
question: How do cause lawyers decide when and where to litigate
on behalf of their cause? And, to begin to unpack this question, we
utilize methods that are relatively novel in the current literature on
cause lawyers and cause lawyering.
We situate, with a few obvious temporal and institutional con-
straints, the locus of agency for this decision squarely with the cause
lawyers themselves (see also Barclay and Fisher 2006; Barclay and
Marshall 2005; Levitsky 2006; Marshall 2006). This positioning of
agency with the cause lawyer is in contrast to much of the existing
literature, in which the locus of decision making for when and
where to legally act has often been located external to the lawyers:
it is a choice adopted by the larger social movement to which they
are bound (e.g., Sarat & Scheingold 2006); or simply a reflection of
the available legal opportunities in a defined jurisdiction (e.g.,
Andersen 2005; Ellmann 1998; Michalowski 1998) or some combi-
nation of both of these elements.
Alternatively, the decision of when and where to act is occasion-
ally identified as an almost incidental by-product of the initial
decision of lawyers to both act as a cause lawyer and for whom to act
Please direct all correspondence to Scott Barclay,School of L aw,UCLA, Los Angeles, CA
90064; e-mail:
Law & Society Review, Volume 48, Number 3 (2014)
© 2014 Law and Society Association. All rights reserved.
in this capacity (e.g., Hilbink 2004; Menkel-Meadow 1998; Sarat
1998; Shamir and Chinski 1998). Once the decision to act and for
whom is made, it is implied that the choice of venue and its timing
will follow automatically from this initial choice; a logical presump-
tion if one is discussing cause lawyers engaging local welfare
bureaucracies or city-based housing courts on behalf of poor
persons or displaced tenants (e.g., Kilwein 1998; Scheingold 1998),
but far less determinative if one is considering cause lawyers acting
in coordination with emerging social movements challenging social
norms that are ubiquitous in policy (e.g., Meili 2006).
By returning agency to the cause lawyers, we create a context in
which the decision of when and where to act becomes a choice
among alternative locations and potential time periods. A choice
that is contingent upon some limited set of selection criteria that
are invoked similarly by different cause lawyers in different time
periods. And, the consideration of contingent choices with assumed
commonalities across subjects, locations, and time is an area in
which statistical models can offer important insights. Accordingly,
we turn in this article to statistical models to model this behavior in
order to unpack some of the factors that might lead cause lawyers
to pursue a case in one location at a set time while rejecting oppor-
tunities at other locations.
Although the use of statistical models is not explicitly eschewed
by scholars investigating cause lawyers and cause lawyering, it has
been largely absent as an analytical tool in the existing literature.
This dearth of statistical models reflects a scholarly recognition that,
because cause lawyering, especially on behalf of social movements,
often occurs in dynamic legal and political environments, the cir-
cumstances are intricate and varying in ways that do not always
invite simple generalizabilty across different lawyers, locations, and
time. As Sarat and Scheingold (2005: 12–13) noted, “What lawyers
can do to serve their cause is shaped by a variety of factors, for
example, the goals of the cause or movement, the resources that it
can make available or that lawyers can mobilize, the possibilities at
the practice site, the lawyer’s own experience, skills, and under-
standings, the lawyer’s social capital and networks, the nature of
existing social, political, and legal arrangements, and so forth.”
Nonetheless, even while acknowledging the constraints mentioned
earlier, we will demonstrate the intellectual value of beginning to
incorporate such statistical models to gain leverage on the nature of
the commonalities underpinning the choices pursued by an impor-
tant subset of cause lawyers, those who pursue high visibility litiga-
tion on behalf of social movements for marginalized groups.
The story we will offer in answering the question of how do
these cause lawyers decide when and where to litigate on behalf of
their cause is, at its heart, a story about the power of law to facilitate
596 Choices of cause lawyers

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT