Academic journal article Law & Society Review

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

Academic journal article Law & Society Review

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

Article excerpt

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 constraints, 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 combination of both of these elements.

Alternatively, the decision of when and where to act is occasionally 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 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 presumption 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 opportunities 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 circumstances 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 understandings, 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 important subset of cause lawyers, those who pursue high visibility litigation on behalf of social movements for marginalized groups. …

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