It takes all kinds: Observations from an event-centered approach to cause lawyering

• Published date: 09 December 2009
• Date: 09 December 2009
• Pages: 169-206
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000050009
• Author: Joshua C. Wilson

IT TAKES ALL KINDS:

OBSERVATIONS FROM AN

EVENT-CENTERED APPROACH

TO CAUSE LAWYERING

Joshua C. Wilson

ABSTRACT

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 areexhibited by a range of attorneysinvolved

in anti-abortionprotest 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.

Austin Sarat and Stuart Scheingold (1998a, 1998b) begin the first in their

series of edited volumes on cause lawyers by stating that ‘‘cause lawyering is

a contested concept yFor this reason we talk about the parameters rather

than the definition of cause lawyering’’ (p. 5). Although one may expect to

find an established definition one decade later, much of the work in that

Studies in Law, Politics, and Society, Volume 50, 169–206

Copyright r2009 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000050009

169

volume, as well as in the duo’s five successive edited volumes, returns to the

finding that cause lawyering exists along a continuum (Sarat & Scheingold,

2001, 2004, 2005, 2006, 2008). As a result, one can roughly outline cause

lawyering’s central features, but an uncontested definition remains elusive.

For example, Carrie Menkel-Meadow (1998) argues that,

cause lawyering is any activity that seeks to use law-related means or seeks to change law

and regulations to achieve greater social justice – both for particular individualsyand for

disadvantaged groups y[T]he goals and purposes of the legal actor are to ‘‘do good’’ – to

seek a more just world – to do ‘‘lawyering for the good’’. (p. 37)

1

This definition helps to introduce how cause lawyering differs from more

traditional lawyering, but it also illustrates why the definition is contested.

At its core cause lawyering is distinguished from traditional lawyering in

that it is done in the service of a political or social cause that seeks to

rearrange existing state or social power relations. That is, it is lawyering

typically done on behalf of marginalized groups in the interest of realizing a

certain conception the good.

If, however, cause lawyering is understood as ‘‘lawyering for the good,’’

one can see that the category’s borders shift dramatically depending on such

interrelated factors as how one defines the good; how directly one’s

lawyering activities relate to achieving that good; and whether or not one

believes in, or is just working on behalf of those who believe in the good that

is sought. These issues highlight why the definition remains amorphous and

somewhat problematic.

Definition issues aside, research on cause lawyering has focused on a

broad range of topics. Some of the more common themes include the

tensions between cause lawyering and the professional norms of traditional

lawyering; how cause lawyers relate to the movements they work for or with;

what motivates these lawyers; and what institutional and social factors

influence whether cause lawyers are effective. This research has largely

progressed along two separate tracks. In the more established research

tradition, one starts with a working definition of cause lawyers, and then

identifies and studies a set of attorneys that match the given definition. This

can be referred to as a lawyer-centered approach.

The other research option is to take an event or struggle-centered

approach to cause lawyering. By starting with the cause rather than the

lawyer, this approach attempts to circumvent some of cause lawyering’s

definitional problems in the interest of being more inclusive and offering

‘‘the possibility of developing a complex picture of the social movement

itself’’ (Barclay & Marshall, 2005, p. 198). Restated, cause lawyers are

JOSHUA C. WILSON170

identified in the event-centered approach not by their specific personal

attributes or beliefs, but rather by the fact that they work, or have worked,

for or with a given movement or cause during a specific event. In doing so,

the event-centered approach initially casts a wider and less discriminate net

that one might see as diluting the cause lawyer and lawyering categories.

However, by looking at a broader spectrum of actors this approach

embraces the ideas that cause lawyers exist along a continuum, and that

movements use different types of lawyers in differing ways. Accepting this,

though, does not eliminate the question of whether all of these attorneys

should be considered cause lawyers.

This chapter intends to add to this less common event-centered strand of

cause lawyering research. Given this, the chapter takes a series of three anti-

abortion activism regulation cases – Christine Williams v. Planned Parent-

hood Shasta-Diablo, Inc. 520 US 1133 (1997), Schenck v. Pro-Choice Network

of Western New York 519 US 357 (1997), and Hill v. Colorado 530 US 703

(2000) – as its starting point.

2

Much of the chapter is descriptive in nature to

offer a more detailed depiction of the competing social movements and

conflicts that form the study’s center. As will be briefly discussed later, these

cases are relatively unique with respect to those typically studied in relation

to social movements and therefore encourage expanding the discussion of

social movement litigation.

Beyond ‘‘developing a complex picture’’ of these movements and litigation,

the chapter identifies, categorizes, and discusses assorted attributes of the

lawyers involved on both sides of these conflicts. These details allow the

reader to consider the limits of the cause lawyering category and analytical

frame, as well as the opportunity to critique the event-centered approach

itself. The chapter’s main question is whether or not cause lawyering in the

United States should include the study of lawyers typically excludedfrom this

class. The chapter specifically asks whether researchers should include ‘‘hired

gun’’ and state attorneys in the cause lawyering conversation. The place of

hired gun lawyers is already a topic of some discussion in the literature

(McCann & Silverstein, 1998), whereas the place of government lawyers as

cause lawyers in the United States has largely been overlooked until very

recently (Berenson, 2009;Woods & Barclay, 2008).

3

This chapter approaches

both groups to ask if, when, and how work with movements can lead to one

becoming a cause lawyer. By doing so, the chapter takes a process approach

to understanding cause lawyering and the cause lawyer identity.

In terms of the discussion of the lawyers’ attributes, the list includes some

features and concerns that have not been fully or significantly discussed

elsewhere in the cause lawyering literature. In particular, this chapter hopes

Observations from an Event-Centered Approach to Cause Lawyering 171