Cause lawyers as legal innovators with and against the state: Symbiosis or opposition?

Abstract

The traditional and most common conception of cause lawyers has viewed them as necessarily oppositional to the state, leftist, and, at best, transgressive. This conception is significant to our analysis because of its tendency to treat “the state” as a rather singular arena of power – an “it” – rather than a multi-dimensional entity made up of competing institutions and personnel. Following work on the disaggregated and embedded state, we suggest that conflict and competition among state institutions and state personnel allow cause lawyers and state actors to engage in mutually-beneficial action in service of their agendas. Litigation has important benefits for both cause lawyers and state actors: within the arena of law, processes that usually require the backing of large constituencies in the context of majoritarian institutions require, instead, convincing legal arguments. We briefly present evidence from two highly disparate cases of similar processes of interaction among cause lawyers and state actors in Vermont and Israel, which we believe indicates that this type of interaction is far from idiosyncratic.

Citation

Woods, P.J. and Barclay, S.W. (2008), "Cause lawyers as legal innovators with and against the state: Symbiosis or opposition?", Sarat, A. (Ed.) Studies in Law, Politics and Society (Studies in Law, Politics, and Society, Vol. 45), Emerald Group Publishing Limited, Leeds, pp. 203-231. https://doi.org/10.1016/S1059-4337(08)45006-8