Alternative Law Journal
edited by A. Sarat and S. Scheingold; Oxford University Press, 1999; 560 pp; $39.95 softcover.
When there is a lot of evidence that lawyers are greedy, self-seeking and ruthless, it is good to see some evidence to the contrary. Cause Lawyering reminds us that there are at least some members of the legal profession who strive to use the law to build a more just society. The obvious question is: What is cause lawyering? Interestingly in the introductory essay, the editors refuse to offer a precise definition of the term but prefer instead to sketch the contested terrain the term implies. The closest they come to a definition is to argue that it includes 'lawyers who use their legal skills to furthering a vision of the good society'. The forms of cause lawyering therefore vary widely and include pro bono work by corporate lawyers at one end of the continuum and salaried legal aid lawyers at the other.
Other chapters also grapple with the meaning of the term. Carrie Menkel-Meadow, for example, tries to shed light on the term by asking what are the causes of cause lawyering. She attempts to answer the question by comparing cause lawyering to other examples of people doing good for others when it is not necessary to do so and perhaps contrary to self-interest. Interestingly, among other things, she draws on literature examining why people helped the Jews in World War II. While she does not offer definitive reasons why there are 'lawyers for the good', her most interesting point is that there are probably a range of mixed motives at work in each person. In other words, a grand theory is probably an elusive goal.
Later chapters also help us to under stand the phenomenon because they describe various forms of cause lawyering around the globe. Here I discuss a selection of the 16 chapters in this rather long book. John Kilwein, for example, reports on 29 cause lawyers who all work private practice in Pitts burgh in the USA. Within the group were men and women, specialist and generalist lawyers, and wealthy lawyers in largish firms and struggling sole-practitioners. Despite the variety of backgrounds, this group of lawyers had all decided to make time in their busy schedule for legal and non-legal activities to improve the lives of the disadvantaged. Worryingly, however, all but two were over 40. In other words, Pittsburgh did not seem to be reproducing cause lawyers; instead they were a legacy of another more radical era of lawyers.
Other chapters examine fascinating examples of cause lawyering in west em societies. Ronen Shamir and Sara Chinski discuss the work of cause law yers protecting Bedouin people in Israeli courts, while Susan Sterret examines immigration lawyering in Britain. Austin Sarat examines the cause lawyers who represent death row inmates in the USA. This chapter is par ticularly sobering not merely because of the depressing nature of the work these lawyers measure success in terms of keeping their clients alive for a few more days and weeks rather than get ting them off! The chapter is also dis turbing because it highlights the increasingly uphill battle of cause lawyers in a society where the cause that is being attacked is strongly supported by public opinion.
The final section of the book discusses cause lawyers in third world societies. As readers in the area will recognise, these papers are a much-needed addition to the literature discussing the way that lawyers can use law to protect people living under oppressive regimes. The fascinating papers include Stephen Ellman's survey of 22 public interest law groups in 18 societies in Africa, Asia and Latin America. Meanwhile, Stephen Meili examines the ways that cause lawyers in Brazil and Argentina have aligned themselves with grass roots and community-based movements. The lawyers have adopted an attitude of service to, rather than leadership of, these groups and have counselled and advised them in contrast to the conservative traditional legal profession.
Reading the book prompts conflicting thoughts about cause lawyering in western democracies. On the one hand you have to admire the work of these unusual lawyers who pursue their visions of a socially just world. It would certainly be a meaner and nastier world for the poor and disadvantaged without them. And it is a concern that such lawyers are probably not being reproduced in law schools in contemporary western societies. At the same time the book implies that the 1960s and 1970s might have been an unusual blip in history in respect of cause lawyers. That is to say, while some cause lawyers invariably emerge in each era, those two decades produced n unusual number of these lawyers. There are a number of reasons for this. For example, the rediscovery of poverty in the 1960s, the flourishing progressive student movement among the middle class, among other factors, helped to stimulate the rise of modern legal aid schemes. As this book makes clear many current cause lawyers were either involved in legal aid programs or were taught by legal academics who then passed on the torch of doing good in society. Needless to say this combination of factors was not planned. But that means it may also be very difficult to reproduce the conditions which are conducive to large numbers of cause lawyers emerging from law schools. I have a nagging doubt that this book may in fact prove to be a report on the peak of cause lawyering in the west. I hope I am wrong.
Finally, the book also provokes a worrying definitional problem. Cause lawyers' vision of the good society may not necessarily be a decent vision. For example, lawyers can organise and develop firms that explicitly pursue racist, sexist, or other offensive social projects. This powerful profession is equally equipped to use the legal system for 'good' as opposed to 'evil' purposes. In some ways what is lacking in this book is the absence of the other types of cause lawyers. Their work may be offensive but they are probably as important to understand as the socially responsible, well-intentioned cause lawyers with whom many of us would have some sympathy.
Frances Regan teaches legal studies at Flinders University.