Speaking Law to Power: Occasions for Cause Lawyering

Abstract

Abstract Under what circumstances does law check power? That it can do so at all reflects the fundamental contradiction of liberalism. Law is simultaneously rule and politics, ideal and reality, neutral and partisan, above the fray and in the midst of it. Most of the time law reflects, reproduces, and reinforces existing power inequalities. Anatole France’s now cliched observation perfectly captures the paradoxical effect of blind justice in an unjust society. More recently, Marc Galanter’s pathbreaking article elaborated the ways in which lawyers and courts routinely amplify the advantages of the “haves.” I have expressed similar skepticism in criticizing informal justice and legal aid. Here, however, I want to attend to the possibilities as well as the limitations of liberal legalism, the moments when law offers leverage to the relatively powerless as well as those when it is wielded, or trumped, by power. These are the occasions for cause lawyering.

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