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

• Date: 01 September 2014
• Published date: 01 September 2014
• DOI: http://doi.org/10.1111/lasr.12093

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: barclay@law.ucla.edu.

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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