Vol. 16 No. 3 (March, 2006) pp.226-229
THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE, by Austin Sarat and Stuart A. Scheingold (eds). Stanford, California: Stanford University Press, 2005. 504pp. Cloth. $75.00. ISBN: 0–8047–5228-1. Paper $29.95. ISBN: 0–8047–5229-X.
Reviewed by Clark D. Cunningham, College of Law, Georgia State University. Email: cdcunningham [at] gsu.edu.
This collection of 14 case studies is the third book on cause lawyering that Austin Sarat and Stuart Scheingold have co-edited, following the influential publication of CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES and CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA, as well their co-authored monograph: SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. The 14 case studies are preceded by the editors’ introduction on “The Dynamics of Cause Lawyering” and followed by a short “Afterword,” written by Peter Fitzpatrick.
A more-than-sufficient reason to add this volume to one’s bookshelf is the fascinating and useful survey of work lawyers are doing in a wide variety of settings. The case studies are drawn from seven different countries—Argentina, France (2 chapters), India, Israel, South Africa, United Kingdom, and the United States (7 chapters). The practice settings are quite varied, and the causes advocated by these lawyers are likewise diverse.
As the second half of the book’s title indicates, Sarat and Scheingold analyze cause lawyering in terms of what they call the structure-agency problematic. For them “[s]tructure refers to the social institutions, patterns of behavior or ways of thinking that shape human behavior, and agency is the ability of humans to act with conscious intention.” The relationship between the two is “problematic” because structure both enables and constrains agency (pp.4-5). They assert that generally “legal profession scholars have explored neither the ways in which law and professional norms define the field within which lawyers work nor how they rework both” (p.8). Therefore, they asked each contributor to the book “to take the issue of structure-agency as at least a background framework, or jumping off point for their work,” which was “to prepare an empirical case study of cause lawyering and to explore the framework of opportunities and/or constraints in the work of the lawyers they studied.” The contributors were not asked to theorize but rather to provide data on which such theorizing subsequently might be built (pp.14-15).
Given this charge to the contributing authors, and the admirable variety of settings used for the case studies, it is not surprising that no general conclusions or unifying theories emerge. What a number of chapters do provide, though, are intriguing counterexamples to the paradigm of cause lawyering that seems to underlie the entire project. [*227] Although Sarat and Scheingold are careful to describe cause lawyering as a “heterogeneous category” (p.1), they are nonetheless tempted to some sweeping generalizations. Thus, in the first paragraph of their introduction they assert: “Cause lawyering is a distinctive, if not unique, style of legal practice . . . characterized, in the United States and elsewhere, by its difference from conventional, client centered advocacy . . . which is neither a domain for moral or political advocacy, nor a place to express a lawyer’s beliefs about the way society should be organized, disputes resolved, and values expressed.” On the following page, they state: “cause lawyering is everywhere a deviant strain within the legal profession” (p.2).
It is interesting to place these introductory statements from the editors against, for example, Laurent Willemez’ report that the French “workers’ lawyers” he interviewed “want to maintain the traditional image of French lawyering, and consider themselves its guardians.” These “cause lawyers” value their “desinteressement” which is derived from a conception of lawyering “based on a few fundamental principles: independence, liberty, disinterest in financial gains, respect for ethical rules.” They see themselves as “true lawyers” in contrast to corporate, tax or commercial law specialists, because the latter are not independent but instead motivated by money to put aside their convictions and ethical responsibilities (p.69). Willemez seems to have found “conventional and client-centered” lawyers who believe their work is essentially a way to express their social and personal values. He traces these views to a “rhetoric of generosity” invented within the French legal profession at the end of the seventeenth century in order to find a place in the social space between merchants and political power (p.69).
Another counter-example is presented by the most ethnographically detailed case study in the book: the account by Scott Barclay and Anna-Maria Marshall of how America’s first state law sanctioning the functional equivalent of gay marriage was enacted through the work of two members of one of Vermont’s most prominent law firms, neither of whom had a prior history of activism. Susan Murray and Beth Robinson won a 1999 decision from the Vermont Supreme Court holding that the Common Benefits Clause of the state constitution was violated when same-sex couples were deprived of the benefits of marriage, and they also played a key role in lobbying the state legislature to enact the Civil Union Statute in 2000 (p.172). Barclay and Marshall offer their case study “to both challenge and extend the existing definitions of cause lawyers,” which are overly dependent on studies of “rebellious lawyers.” The two Vermont lawyers are described as determinedly client-centered: their cause lawyering work arose largely as an extension of the goals of existing clients (p.190), and they “were explicit in rejecting any connection beyond their law firm and its clients” (p.196). Barclay and Marshall argue that the study of cause lawyers should expand to embrace attorneys like Murray and Robinson by emphasizing the cause over the lawyer—what they call a “struggle-centered” approach (p.198). They also suggest that private practitioners who serve paying clients [*228] may sometimes be closer and more responsive to individual needs and problems of marginalized groups than the paradigmatic “rebellious” cause lawyer (p.198).
As Patricia Woods observes in her study of legal practice in Israel, the notion that cause lawyers are “deviant” members of the legal profession has generally included an assumption that such lawyers work in opposition to the state and are “outsiders” to the circles of power. However, she describes Israel’s leading cause lawyers as part of a tight-knit “judicial community” that includes the justices of the high court (p.308). These lawyers’ proximity to power creates a symbiotic relationship with the court in which cause lawyers take advantage of signals from judges that they are willing to hear certain arguments, creating a feedback loop between the lawyers and court, contributing to the court’s political salience when it has made politically significant decisions (p.320).
The nexus between the state and cause lawyers is even tighter in Ronen Shamir’s study of litigation brought by major drug companies in South Africa in an attempt to block legislation empowering the government to import or license the production of less-expensive generic versions of patented HIV medications. In that case the cause lawyers were allied with the state against the drug companies. Indeed Shamir reports that cause lawyers tipped the balance of power to the government through their intervention in the litigation and the international lobbying campaign they orchestrated (pp.46-49). This cause lawyering was spectacularly successful: on the first day of formal hearings, the drug companies announced that they were dropping their lawsuit.
In his chapter on Argentina, Stephen Meili observes that “many cause lawyers in most authoritarian countries . . . have an interest in strengthening the rule of law and democratic state institutions (including the judiciary)” (p.396). In Israel, according to Woods, even when lawyers for the government oppose cause lawyers in litigation, there is an “ideological cause that binds these lawyers across the lines of cause lawyers and state . . . a deep commitment to the rule of law.” What is most important is a common ambitious, if not wholly extravagant concept, as to the role of law in society in which the law is entirely autonomous” (p.321). A recurring theme seems to be a “cause” centered on strengthening rather than challenging state power.
The first half of the book’s title raises expectations that it contains accounts of how cause lawyers have caused dramatic changes in the worlds where we all live. This expectation is bolstered by the first endorsement on the back cover, from Terrence Halliday: “This volume . . . will inspire a new generation of morally and politically committed lawyers to recognize their prospects for bringing justice to an [*229] unjust world.” However, the reader will discover that most of the chapters primarily study “the worlds cause lawyers make” in their own personal lives and practice settings. Among the chapters that do attempt to report on whether cause lawyers have “prospects for bringing justice to an unjust world,” many of the descriptions are rather discouraging—e.g., futile efforts to enforce human rights in UK asylum cases (Richard Maiman), the lost campaign for victims’ rights in the face of business-funded “tort reform” in the US (Michael McCann and William Haltom), and the failure of cause lawyers in Argentina to address that country’s greatest recent crisis, the government’s freeze on bank withdrawals when its currency collapsed. However, the chapters on South Africa and Vermont are indeed inspiring. Indeed one hopes that copyright permission is freely granted so that the Vermont chapter in particular is widely assigned for reading and discussion in both undergraduate and law school classrooms.
Sarat, Austin and Stuart A. Scheingold (eds). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford University Press.
Sarat, Austin and Stuart A. Scheingold (eds). 2001. CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA. New York: Oxford University Press.
Scheingold, Stuart A. and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.
© Copyright 2006 by the author, Clark D. Cunningham.