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Legal Ethics Volume 3, 2000 - Issue 2
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Book Reviews

Cause Lawyering: Political Commitments and Professional Responsibility by Austin Sarat and Stuart Scheingold (eds)

On the Social Significance of Critical Lawyering

Robert Eli Rosen
Pages 169-178 | Published online: 01 May 2015

  • Professor of Law, University of Miami, Florida.
  • A. Sarat & S. Scheingold, “Cause Lawyering and the Reproduction of Professional Authority: An Introduction,” in Cause Lawyering: Political Commitments and Professional Responsibility (hereafter “CL”), at 5.
  • Stropnicky v. Nathanson, 19 M.D.L.R. (Landlaw, Inc.) 39, (MCAD 25 Feb., 1997) (fine of $5,000).
  • Stropnicky, 19 M.D.L.R. at 40.
  • Id.
  • A. Sarat, “Between (the presence of) Violence and (the Possibility of) Justice: Lawyering Against Capital Punishment,” in CL, at 318–19.
  • C. Menkel-Meadow, “The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers,” in CL, at 32. Menkel-Meadow makes clear that in addition to advancing a cause, moral commitment is key to distinguishing cause lawyers, in part because there are those “like Robert Gordon and Anthony Kronman [who] argue that even corporate lawyers are subject” to furthering a cause. Id. at 50. Commitment to the good in addition to a cause is required to exclude from cause lawyering those who define “their calling as ‘civic republicans'”. Id.
  • M. Minow, “Foreword: Of Legal Ethics, Taxis, and Doing the Right Thing,” (1998) 20 W. New Eng. L. Rev. 5, 6.
  • B. Miller, “Lawyers' Identities, Client Selection and the Anti-discrimination Principle: Thoughts on the Sanctioning of Judith Nathanson,” (1998) 20 W. New Eng. L. Rev. 93.
  • G. Chin, “Do You Really Want a Lawyer Who Doesn't Want You?,” (1998) 20 W. New Eng. L. Rev. 9, 13.
  • T. Day & S. Rogers, “When Principled Representation Tests Anti-discrimination Law,” (1998) 20 W. New Eng. L. Rev. 23, 30.
  • Chin, supra note 10, at 12 (tobacco defense is Chin's example).
  • R. Shamir & S. Chinski, “Destruction of Houses and Construction of a Cause: Lawyers and Bedouins in the Israeli Courts,” in CL, at 235.
  • S. Scheingold, “The Struggle to Politicize Legal Practice: A Case Study of Left-Activist Lawyering in Seattle,” in CL, at 118.
  • See e.g., R. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, University of California Press, 1988); R. Nelson, D. Trubek, & R. Solomon, “New Problems and New Paradigms in Studies of the Legal Profession,” in R. Nelson, D. Trubek & R. Solomon (eds), Lawyers' Ideals and Lawyers' Practices: Professionalism and the Transformation of the American Legal Profession (Ithaca, Cornell University Press, 1992).
  • R. Rosen, “Devils, Lawyers and Salvation Lie in the Details: Deontological Legal Ethics, Issue Conflicts of Interest and Civic Education in Law Schools,” in K. Economides (ed.) Ethical Challenges to Legal Education and Conduct (Oxford, Hart Publishing, 1998).
  • On the inadequacies of the neutrality excuse as a response to ethical challenges, see I. Applbaum, Ethics For Adversaries (Princeton, Princeton University Press, 1999).
  • See e.g., A. Porter, “Norris, Schmidt, Green, Harris, Higginbotham & Associates: The Sociological Import of Philadelphia Cause Lawyers,” in CL.
  • See e.g., R. Michalowski, “All or Nothing: An Inquiry into the (Im)Possibility of Cause Lawyering under Cuban Socialism,” in CL.
  • See e.g., Shamir & Chinski, supra n. 13.
  • L. Trubek & M. E. Kransberger, “Critical Lawyers: Social Justice and the Structures of Private Practice“, in CL, at 217.
  • Sarat & Scheingold, supra n. 2, at 20 (discussing Ellmann).
  • R. Abel, “Speaking Law to Power: Occasions for Cause Lawyering,” in CL, at 99.
  • S. Ellmann, “Cause Lawyering in the Third World,” in CL, at 367.
  • Id. at 386 n.6.
  • Sarat & Scheingold, supra n. 2, at 25 n.13. They explain that “[i]t is too soon in the development of conservative cause lawyering to provide a reliable assessment.” Id.
  • Michalowski, supra n. 19, at 524. Michalowski notes that both Menkel-Meadow and Sterett raise the possibility of studying such individuals as cause lawyers. Id. at 544 n.5.
  • Trubek & Kransberger, supra n. 21, at 204.
  • Id. at 204.
  • Sarat & Scheingold, supra n 2, at 9. Conversely, when cause lawyers can hope for “what can be accomplished” through legal work, “the tendency is to think more in terms of being on the right side than in terms of transformative practice.” Scheingold, supra n. 14, at 126.
  • Sarat & Scheingold, supra n. 2, at 7.
  • Id.
  • Id.
  • M. Stein, “On the Limits of Professional Thought,” in K. Wolff & B. Moore (eds), The Critical Spirit: Essays in Honor of Herbert Marcuse (Boston, Beacon Press, 1968) at 364.
  • Id. at 365.
  • Id.
  • Ellmann, supra n. 24, at 351.
  • Trubek & Kransberger, supra n. 21, at 204.
  • On the importance to critical lawyering of respect of clients and the humility required to deter demobilization, see J. Kilwein, “Still Trying: Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania,” in CL, at 184–5.
  • M. McCann & H. Silverstein, “Rethinking Law's ‘Allurements': A Relational Analysis of Social Movement Lawyers in the United States,” in CL, at 290 n.59.
  • Id. at 261.
  • Id. at 261–2. Not only lawyers, but also clients are aware of these drawbacks. See Shamir & Chinski, supra n. 13, at 239, 240.
  • McCann & Silverstein, supra n. 40, at 266.
  • Id. at 276. Kilwein also found that cause lawyers understand the dilemmas recognised in academic writings on critical lawyering, Kilwein, supra n. 39, at 187, and that they respond in various ways. He concludes: “The cause lawyer's monopoly of legal knowledge was seen as a fact of life that could be used to help, not as a pernicious tool of control.” Id. at 191.
  • Ellmann, supra n. 24, at 384.
  • Id.
  • Id. at 380.
  • Id. at 381.
  • Id. at 377.
  • Sarat, supra n. 6, at 319.
  • D. Thompson, “The Institutional Turn in Professional Ethics,” 9 Ethics & Behaviour, (1999) 109, 113.
  • Menkel-Meadow, supra n. 7, at 35.
  • Id. at 34.
  • Id. at 45.
  • Id. at 37.
  • Thompson, supra n. 51, at 113.
  • Scheingold, supra n. 14, at 118.
  • Supra, n. 6.
  • Menkel-Meadow, supra n. 7, at 41.
  • G. Bisharet, “Attorneys for the Poor, Attorneys for the Land: The Emergence of Cause Lawyering in the Israeli-Occupied Territories,” in CL, at 478.
  • Sarat, supra n. 6, at 325.
  • Trubek & Kransberger, supra n. 21, at 212.
  • Kilwein, supra n. 39, at 197.
  • Scheingold, supra n. 14, at 118.
  • Colorado Rules of Professional Conduct Rule 1.2(f)(1997), cited in Day & Rogers, supra n. 11, at 33 n. 35.
  • Menkel-Meadow captures this moment in asking, “Must a cause lawyer give something up to be so classified?” Menkel-Meadow, supra n. 7, at 43.
  • See e.g., Scheingold, supra n. 14, at 138.
  • S. Sterett. “Caring about Individual Cases: Immigration Lawyering in Britain,” in CL, at 301.
  • See Id. at 302; McCann & Silverstein, supra n. 41, at 269.
  • See e.g., A. Guttman & D. Thompson, Democracy and Disagreement (Cambridge, Mass., Harvard University Press, 1996).
  • D. Lev, “Lawyer's Causes in Indonesia and Malaysia,” in CL, at 447.
  • Id.
  • McCann & Silverstein, supra n. 4, at 262. “[A]bstract beliefs matter rather less for action than do the practical understandings derived through mobilizing particular cultural conventions in actual social interaction over time.” Id. at 278.
  • Shamir & Chinsky, supra n. 13, at 240.
  • Id. at 244. One of the lawyers quoted by Scheingold explained that his job was “vigorously demanding that the system live up to its claims”. Scheingold, supra n. 14, at 135.
  • Sterett, supra n. 68, at 306.
  • Scheingold, supra n. 14, at 137.
  • S. Meili, “Cause Lawyers and Social Movements: A Comparative Perspective on Democratic Change in Argentina and Brazil,” in CL, at 488–9.
  • Bisharet, supra n. 60, at 239.
  • Sterett, supra n. 68, at 308.
  • See e.g., D. Meyer & S. Tarnow (eds) The Social Movement Society: Contentious Politics for a New Century (Lanham, Rowman & Littlefield, 1998); R. Dalton (ed.) “Citizens, Protest and Democracy”, 528 Annals Am. Acad. Pol. & Soc. Sci. (1993).
  • Abel, supra n. 23, at 102–3.
  • Abel, supra n. 23, at 69.
  • Id. at 102, noting that the phrase is taken from J.K. Galbraith.
  • Michalowski, supra n. 13, at 543.
  • Shamir & Chinsky, supra n. 13, at 230.
  • Id. at 232.
  • Y. Dezalay & B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago, University of Chicago Press, 1996).
  • Shamir & Chinski, supra n. 13, at 232.
  • Sarat & Scheingold, supra n. 2, at 5.
  • Cf., R. Kagan & R. Rosen, “On the Social Significance of Large Firm Practice,” 37 Stan. L. Rev. 399 (1985).

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