Cause lawyers in the spotlight

To paraphrase Barack Obama, cause lawyers aren’t supposed to make any money: ‘their poverty is proof of their integrity’ (Obama, Reference Obama2007, p. 135). Integrity and its insignia are, of course, sought-after signifiers not only in the field of community organising that Obama was describing, but in all professions, not least that of cause lawyers that is the focus of this book. The Cultural Lives of Cause Lawyers is the fifth in a series of essays edited by Austin Sarat and Stuart Scheingold on the activities of cause lawyers. Previous collections set the scene for the nature and aims of cause lawyering, analysing their professional and political commitments in theory and in practice, and their relationship to the state and to social movements in a global era. It is a series that almost single-handedly, quickly and efficiently helped define, as well as develop, this exciting new field.

The series’ basic premise, repeated and reaffirmed in this volume, is uncontroversial: cause lawyers, it asserts, both subvert and legitimate the legal profession, threatening as well as strengthening its legitimacy. That is, cause lawyers find, or indeed position themselves, at the edge of the legal profession, forever on the brink between the legal and the political, the personal and the public. Cause lawyers thus deviate from the profession’s claim to political and moral neutrality, hence threatening its perceived legitimacy. On the other hand, the same moral and political activism lends an aura of meta-legitimacy to a profession perceived as devoid of moral worth and as ruthless in its pursuit of its own interests. This positioning is both cause lawyers’ weakness and their strength, a source of pride as well as a mark of opprobrium, depending, of course, on the viewer’s standpoint.

Whether, and if so how, cause lawyers negotiate their dwelling on the threshold, will depend at least partly, the authors rightly suggest, on the representations of such lawyering in the media and in popular culture. If cause lawyers teeter on the edge between legitimacy and illegitimacy, law and politics, public interest and private gain (or even glory), then the representation of cause lawyers in cultural texts is one, perhaps even a crucial, means of establishing whether these boundaries are breached, maintained or reaffirmed. Just as importantly, cultural representations can alert us to whether these boundaries are perceived to be successfully negotiated, undermined or destroyed: for integrity, to pursue Obama’s point, must not only exist but be seen to exist. Lastly, and most crucially in my view, if we take seriously Lacan’s point that the unconscious is outside, that it resides in the discourse of the symbolic order, then the depictions of a society’s loves and hates, its heroes and its villains in its cultural products, is one of the first places we should look for the truth of that society’s desires (Lacan, Reference Lacan and Fink2006, pp. 703–721).

To examine how cultural media represent cause lawyers, the book aims to include ‘essays by scholars of popular culture turning their attention to cause lawyers and expert cause lawyers turning their attention to popular culture’ (p. 4). In reality the contributions are less varied than this promise suggests, coming for the most part from academics in law, politics and social sciences addressing the representation of cause lawyers in popular film and television. The majority of the cultural texts also emanate from North America, with the exception of two essays from Britain and another two on texts from Chile. The collection, nevertheless, is wide and varied enough to stimulate debate on some abiding issues and dilemmas confronting cause lawyering. In particular, I suggest, by reading through, and between, and beyond the lines of these texts, we can start to address the ‘cause’ of cause lawyering, that is, what gives rise to cause lawyers’ desire, what impact such causes have, and whether this impact is in tune with, or undermines, the desires generated and legitimated by the symbolic order.

Causes far and wide?

From the start, the authors do not insist on any prescribed definition of what can constitute a ‘cause’, in legal discourse or beyond. It is no surprise, therefore, that the signifier ‘cause’ has been appropriated by a wide selection of religions and creeds, from holocaust lawyers, to evangelical fundamentalists, to property rights advocates, to White supremacists. The ‘cause’ bandwagon apparently has room for all religions, and thus can be reactionary as well as subversive, conservative as well as revolutionary, divisive as well as unifying.

The ‘cause’ in Bill MacNeil’s contribution is that of policing not only legal boundaries but the boundaries of Margaret Mitchell’s classic Gone With the Wind. The confederacy, McNeil claims, may have lost the historical civil war, but continues to win the ongoing, ideological battle through the instrument of intellectual property law. Just as the law was used to prohibit miscegenation, intellectual property laws have the effect, if not the goal, of affirming the ‘purity’ of Mitchell’s text against ‘pollution’ from novel retellings and divergences. McNeil ably and wittily shows how the allegedly neutral or ‘causeless’ intellectual property laws are anything but when it comes to protecting the Mitchell legacy. In authorising a weak if not farcical sequel in Alexandra Ripley’s Scarlett, while successfully obtaining injunctions against Alice Randall’s subtle The Wind Done Gone, the lawyers, McNeil suggests, continue to serve the cause of ‘Stars and Bars’ and of White supremacy. Only their contemporary weapons of choice are not lynchings or hooded criminality but injunctions, that is, legal rather than military means.

Victory is also the ongoing cri de coeur of the evangelical cause lawyers that form the focus of the second chapter. Kevin R. den Dulk turns his expertise on the role of religion in public life, to the special case of evangelical law firms. There is no doubt from his description that these are purpose-driven lawyers adept at using and abusing populist rhetoric of conflict, war and rights, in the service of their cause. Such firms focus on the ‘culture war’ between urban secular liberals and rural religious traditionalists, a war that they have partly created as well as continue to exacerbate. Having identified urban secular humanists as ‘ungodly’ and dangerous to the fabric of American society, it is only a short step for these cause lawyers to cast themselves as the heroic warriors in charge of saving the nation from moral ruin. In this so-called war, no sacrifice, as the confederates of MacNeil’s focus might have put it, is too great for the cause: if the enemy is great, then so much the greater the need for mobilisation and single-minded pursuit of the moral truth. Evangelical cause lawyers therefore cast themselves as the heroic warriors fighting the ungodly dragons of secular humanism and reclaiming ‘America for Christ, whatever the cost’ (p. 66).

The tone of the next chapter is not dissimilar to the tone used by Christ’s godly warriors, except that this ‘band of brothers’ (as the author calls them, citing the warriors of Shakespeare’s Henry V) are not in mortal combat with the dragons of secular humanism but with the (no less deadly) beasts of Big Tobacco firms. Tim Howard, a practising consumer interest lawyer himself, tells a story of heroes and heroism, of nobility, persistence and perseverance against seemingly invincible enemies, a struggle that is slowly, but surely rewarded. It is a story of ‘the Good’ of Platonic proportions as, in Tim Howard’s view, the Good not only exists but needs to be told: ‘not to create celebrities, but to celebrate heroes and heroism, to advance our culture with a narrative that will celebrate and “give life to law’s ethical aspirations”’ (p. 85). In this tale, the Davids of cause lawyering, with their ‘embedded instincts challenging injustice (p. 92), take on the Goliaths of Big Tobacco and deliver a triumphant narrative ‘of heroic, humble perseverance and resilience in a cause to redeem society’ (p. 84).

It is a noble story indeed, passionately related and aptly celebrated; perhaps what makes this chapter uncomfortable reading on the British side of the Atlantic at least, is the implicit self-celebration, one cause that the Brits are so good at hiding. On the other hand, there is something irresistibly appealing about the refreshing honesty of this chapter: unlike most academic writing where the writer’s enjoyment of writing, and of lawyering, remains well hidden, this chapter openly reveals the sources and causes of this enjoyment. It starts to address, in other words, what ‘drives’ cause lawyers, what Lacan called the objet petit a, the ‘cause’ of the subject’s desire (Lacan, Reference Lacan and Sheridan1994).

In this instance, in Tim Howard’s view, it turns out that the ‘cause’ of cause lawyers’ desire is, in substance, no different from that of all lawyers, or of our society generally: as Howard puts it, ‘“doing well by doing good” is the common refrain of good capitalism and of economically successful cause lawyers’ (p. 91). In other words, the ideology of capitalism and of cause lawyers is one and the same. Although this is not a theme that is explicitly addressed in this book, it is one that I suggest informs and underlines the whole of this collection. The symbolic order, to put it differently, is not only able to tolerate, but also to contain and absorb people and causes at the so-called margins, including cause lawyers, because their ‘cause’ or ‘desire’ is no different to that authorised and approved by the dominant ideology. Such is the pervasiveness and invisible workings of this ideology, that cause lawyers pose no great threat to its continuity and influence; so much less so when the cause lawyers themselves march under the banner of their particular cause, oblivious of the fact that their ‘cause’ is not a deviation from, but a subset of, the dominant ideology. As we see later, it is the acknowledgement and analysis of this theme that is sadly missing from this otherwise excellent collection. Its investigation, I believe, would have enabled us to start addressing some of the dilemmas and puzzles the contributors pose throughout this volume.

In contrast to Tim Howard’s explicit enjoyment of both the cause and the lawyering towards it, the next chapter epitomises cool detachment, and it is perhaps no coincidence that it is, I presume, written by a British academic. Far from hurling himself into the fray of the rights and wrongs of human rights legislation, Richard Mailman engages in an informative and well-researched analysis of media depictions of human rights issues before and after the introduction of the 1998 Human Rights Act. The picture that emerges ‘is that of a press, and perhaps a nation, highly polarized on the question of whether the work of human rights lawyers serves the public good’ (p. 142). Newspaper reports range from highly negative (in the right-wing tabloids The Sun and The Daily Mail) to highly positive (in quality broadsheets such as The Guardian). This is no surprise to either the readers or the researcher: different newspapers ‘have different policies’, as the chapter heading goes, ‘so of course they have to give different news’ (p. 141).

If the motives and thereby news reports of British newspapers reflect the newspapers’ different policies and are therefore, as Mailman shows, rather fixed, Valerie Karno shows that the motives and identity of cause lawyers are anything but rigid. Karno also points out the frequent discrepancy between the rhetoric of cause lawyering as reconnecting law with morality and the day-to-day experiences of cause lawyering in individual cases. Holocaust victim lawyer Ed Fagan is a ripe example for such exploration, in that the representation of him as a cause lawyer clashes with both his self-representation and the media’s enthusiasm at exploiting any dissonance between his avowed aims and actual practice. Taking Fagan as an example, she concludes that ‘lawyers’ motives change’, and ‘identities are multifaceted rather than static’ (pp. 178–79).

This is a conclusion we have no problem agreeing with. Karno also suggests we may learn more from it; that is, that recognising that law ‘oversimplifies identity categories, can potentially create space for the public to engage in a more complex relationship to causes and to personal and professional identities. It is this moment that holds the potential to recognize the ongoing process and vitality of democratic difference as it manifests in recognizable changes within single identities’ (p. 186). This aspiration, that recognising the different and changing motivations in ourselves and in others will enhance flexibility in our relations and dealings with them, is obviously not controversial: of course law simplifies identity categories, and cause lawyers, like all human beings, are not ‘pure’ or ‘unified’ or ‘ideal’. The stronger point to make, however, is that not only law, but all discourses, and all of us (cause lawyers or not), mis-recognise ourselves as much as we mis-recognise each other. Mis-recognition, unfortunately, is an affliction we are all plagued by, throughout our lives, starting in infancy with Lacan’s so-called mirror-stage (Lacan, Reference Lacan and Fink2006, pp. 75–86). My suggestion, therefore, is that rather than focusing on the notion of identity that, as Karno agrees, remains vague and elusive, an aspiration rather than a fact, we should focus on what identifications cause lawyers and ourselves do form. Indeed, perhaps identification with the ‘cause’ of cause lawyers, in theory and in practice, is one of the guiding desires of many academic lawyers, including those writing and reading this collection.

Laura Hatcher begins her contribution by asking whether property lawyers have a life in popular culture. The short answer is yes, they do surprisingly manage to have one: and it turns out to be a life clothed in quixotic coats of armour, where they fight heroically for their land rights against an inhospitable state that is bent on disturbing their enjoyment of their land with its environmental and other fussy regulations. Property rights litigants are romanticised and glorified by lawyers whose ‘cause’ is the belief that property rights and private property are the only guarantee of individual freedom. The Pacific Legal Foundation’s protection of property rights operates as if we are still living in a Hobbesian state of nature, and heroic actions by individuals are needed to protect us from nanny states that have no regard for individual property when issuing regulations to protect the environment or the planet. Meanwhile newspapers create this imaginary community of quixotic fighters by focusing on the individual plaintiff rather than the larger interests that support him. The cause these lone but brave individuals and their powerful supporters like the PLF fight for, turns out to be not dissimilar to the cause of intellectual property lawyers explored by Bill McNeil. The central and powerful signifier is, once more, freedom, and combatants are pitched in a fight for and against slavery. For the PLF, apparently ‘regulation is akin to slavery’ (p. 196), so upholding property rights is the individual property owner’s only guarantee against slavery.

The hidden cause of ideology

Reading between and beyond the lines of these chapters, already the essays appear to converge towards one common, albeit rather quiet and covert message; the dominant ideology, they singly and collectively seem to suggest, is both strong and pervasive enough to not only tolerate, but also to absorb the cause of cause lawyers into its folds. From a psychoanalytic perspective, the fact that most of the contributors do not expressly address this theme only serves to reinforce it, enabling it to continue to work its powerful, invisible, and perhaps even invincible magic. As The Who might have put it, and as Tom Hilbink does put it in his beautiful analysis of the depiction of young cause lawyers on television, ‘the kids are alright’. That is, there is no need to panic, nothing is going to change, rock music (in The Who’s case) or cause lawyering (in Tom Hilbink’s case) may appear to threaten the underlying strata of our society but in the final analysis they are only tinkering at the edges. Our underlying structures and beliefs, the symbolic order, in other words, and the ideology that supports it, are strong enough and humorous enough to not only tolerate the kids’, or cause lawyers’, noise, but even to make room for it and share in its enjoyment.

Tom Hilbink’s analysis of three 1970s television shows depicting young cause lawyers is a star contribution in this vein; the cause lawyers of soap operas, he aptly shows, far from threatening the rule of law, are its firm defenders and upholders. Any lingering anxieties that radical lawyering would undermine confidence in the law and threaten national stability are thereby contained and allayed. These lawyers may dress or talk or act differently, the TV shows suggest, but deep down such lawyers follow the same traditions as the mainstream legal profession and share the same aspirations. The dominant ideology is not only strong enough to tolerate but also to subsume and consume them. Rest assured, the shows suggest, the kids are alright, ‘in other words, they are under control’ (p. 213).

The magical workings of the dominant ideology, and the fact that the unconscious, to repeat Lacan’s point, is outside, are perhaps nowhere more visible and vocal than in Hollywood, which is the focus of McCann and Haltom’s contribution. The authors analyse two successful Hollywood movies, with aptly star casts, and find that there is little to distinguish the depiction of cause lawyers from the depiction of corporations. In Erin Brockvich and North Country, cause lawyers are portrayed as just as amoral, heartless, egotistic and greedy as the corporations they are fighting against. In contrast to Tim Howard’s tale of heroic self-sacrifice in the service of the cause, when the battle is related not by the cause lawyers themselves but by the cultural producers, however indeterminate their production or reception, the sad truth, as McCann and Halton suggest, is that cause lawyers are not portrayed as heroes but as just as corrupt, unscrupulous and incompetent as their opponents.

The strength of McCann and Halton’s contribution is the clarity with which they bring to light the silent and hidden workings of the cause of ideology. While lawyers and the legal system come under attack and often ridicule in these films, they point out, the big picture (that the American legal system does respond) is supportive of the dominant ideology even while supposedly undermining the roles of its actors. Yes, lawyers, even cause lawyers, the films imply, are corrupt, but the genius of ideology is that such details are uncannily rectified by our wonderful system, in the mode of a Hegelian dialectic. Indeed, the authors suggest, lawyers and corporations alike are derided in these movies so that the more powerful message, and the enactment of a time-honoured fantasy, can shine through: ‘how private family bonds nurture, transform and redeem the public life of law, regenerating virtue and triumphing over violence by the power of love’ (p. 250).

Ultimately, what is redeemed by these scenarios, is not the individual victim played by Julia Roberts, but the legal system itself and the symbolic order generally. The clear message is that the legal system may have its problems, its lawyers may be corrupt and incompetent, but both can ultimately be remedied by good old ‘morally upright, ordinary people who are not lawyers and frequently are female’ (p. 250). The latters’ poverty, as Obama might say, is proof of their integrity, as is their female gender proof of their victimhood. It may look like the odds are against ordinary people, the films suggest, but don’t lose faith: the system can and does respond, everything, including cause lawyers, is, after all, alright!

Cynicism about lawyers, including cause lawyers is not, of course, confined to Western democracies. Steven Meili analyses Roman Polanski’s Death and the Maiden and the television series Justicia Para Todos to find rampant cynicism and derision directed at cause lawyers in post-dictatorship Chile. Like previous contributions, the view in popular culture representations is that once cause lawyers join the profession they abandon their idealism and allow narrow proceduralism to stand in the way of achieving justice. Despite the fall of dictatorship, these cultural texts suggest that democracy and the rule of law do not guarantee justice, indeed they often stand in the way of justice; and, often, in order to achieve justice, one has to engage not in the rule of law but in lawlessness.

Ben Fleur Steiner and Aaron Fichtenberg’s chapter, again on Death and the Maiden, problematises cause lawyers by showing how formal law, whether in a dictatorship or a democracy, cannot depict the horror of the victim’s rape. This again is no surprise, since all language, and especially legal language, has trouble representing trauma. We could even say that it is the inadequacy of language generally and of legal language in particular that lies at the heart of the continuing importance and relevance of studies in law and literature. The authors implicitly acknowledge this by citing Primo Levi’s effort to give voice to his experiences at Auschwitz, not through a formalistic legal voice but through literature. In other words, since the ‘real’ of trauma is by definition beyond representation, poetry may be the closest we can get to depicting it; though it is, again, even at poetry’s very best, yet another representation.

Les Moran analyses such a literary depiction, not of trauma but of ‘an Old Bailey hack’ (p. 297), that is, of a criminal law barrister in John Mortimer’s long-running Rumpole series on British television. Like his fellow contributors, Moran is keen to underline the ‘rich and complex’ character of Rumpole and the ‘rich and complex’ reception of the series, avoiding unfortunately to offer his view on the nature or impact of this particular cultural product. Like Ed Fagan in a previous chapter, this lawyer called Rumpole is also not a fixed character, and audiences again can take from the series what they will: ‘I use it to offer a range of examples of uses of Rumpole rather than a final and exhaustive statement of the uses of this particular cultural resource’ (p. 300).

The question of what product or mixture of products we are watching is also left unclear and then delegated to the reader: ‘the audience is directed to read his cynicism in a particular way, to focus on the sense of irony, and to take it as satire’ (p. 307). Given the different political messages that different literary genres produce, it is a shame that Moran is not clearer here. One comment that is made is that Rumpole’s ‘cynicism provides a vehicle for political commentary’ (p. 316). This suggestion and this issue seem to me crucial to pursue: that is, how and what political critique does cynicism deliver? Unfortunately, rather than pursuing this idea, the comment is left isolated and unexplored and the chapter ends with more ‘necessarily tentative conclusions’ that ‘suggest that this particular legal fiction has been a rich resource’ (p. 330). Perhaps, had it been delved into further, we might have found that the hope that cynicism may deliver political critique is one that we must not be too quick to accept: cynics, let’s not forget, are too close to, and too enamoured by, the object at which they direct their scorn not to be paying homage to it. Indeed, as Slavoj Zizek has been arguing for two decades, it is often through cynicism that the dominant ideology and received opinions are maintained, solidified and passed on (see e.g. Zizek, Reference Zizek1989, pp. 28–30).

The next chapter, by contrast, does show a subtle understanding and interest in the crucial role of the workings of ideology, and starts to address some of the puzzles facing lawyers working at the edge. Stuart Scheingold pursues the career of Jonathan Harr’s A Civil Action from book, to film, to the film’s reviews and the gradual demotion of the central cause lawyer from hero to villain along the way. While Harr’s portrayal is positive and even admiring of the trials and tribulations of personal injury attorney Jan Schlimann, by the time his story reaches the silver screen and the media, few of his positive qualities are left. In the resulting representation of the representation (in particular the film reviews), Schlimann emerges as an arrogant, naive and selfish ambulance chaser while corporate wrongdoing and corporate impunity pale into the film’s and the media’s shadows. The film and its reviews undermine rather than enforce the image of the cause lawyer portrayed in the book, effacing, neutralising and in the end ‘disappearing’ the issues of justice and injustice from the script. ‘Now you see [the cause lawyer], now you don’t’, protests Sheingold ruefully (p. 331).

This chapter more than any of its companions shows the magical workings of the ‘currently prevailing hegemony’, as Sheingold calls it. This hegemony, he states boldly, ignores corporate wrongdoing while it encourages the view that ‘class action lawsuits of personal injury are unnecessary, ineffectual and perhaps a threat to economic growth’ (p. 358). This chapter also gestures towards exploring the nature of the enjoyment of cause lawyering, by starting to puzzle out the personality traits of its target cause lawyer. A dose of narcissism, quite a bit of arrogance verging on hubris, and the thrill of risk-taking, are said to form part of Schlimann’s attraction to cause lawyering (p. 336). In that vein, Corey Shdaimah’s empirical study of clients’ perceptions of their lawyers comes as no surprise: clients regularly see little difference between their lawyers and the system that has disadvantaged them, and their aspirations for redress are correspondingly low (pp. 359–87).

Whereto the cause?

Having explored and analysed a variety of causes and their depiction in cultural and media texts, the question remains: What is the impact of these stories on the causes they depict and on the legal system in general? On this crux issue, the collection again does not take a strong view: as ‘a first step into an area of research rather than the culmination of a research enterprise’, the volume ‘offers glimpses’ of cause lawyers in a handful of political and legal contexts ‘rather than a systematic survey’ (p .1) of them. As an initial exploration of the field, the authors say they can only make ‘tentative’ conclusions. More than tentative, however, the conclusion, like cause lawyering itself we might say, remains on the threshold: such representations ‘sometimes provoke and at other times allay anxiety about the political movements cause lawyers serve’ (p. 7). With a few exceptions, contributors prefer to cast their comments in the language of deferral and indeterminacy: the lawyers, the causes, their representations and the audience’s reception of them, are apparently ‘rich’ (p. 330), ‘complex’ (p. 312), ‘contingent, multiplicitous and unpredictable’ (p. 22) and therefore any conclusions are ‘tentative’ (p. 330) or ‘unknown’ (p. 169).

Given the wide variety of uses and abuses of both lawyering and cause lawyering, one starts to wonder whether the concept of cause lawyering, ‘rich and complex’ as it may be, serves a useful purpose. In particular, can we separate the question of ‘cause’ from the question of enjoyment, the enjoyment of cause lawyers, but also, and just as importantly, our own enjoyment? For instance, do academics engage with cause lawyers in the hope that the mixture of thrill, risk-taking and idealism may rub off on us too? We should also interrogate whether the concept of cause lawyering itself may be a useful fantasy in the service of the dominant ideology. That is, is the presence of cause lawyers, and our abiding cultural and academic interest in them, a product of our own wishful thinking? And is this wishful thinking, this fantasy for the existence of a cause lawyer, for ‘something to believe in’ as the editors first put it, a means of allaying our own lawyerly guilts? The guilt, or fear that, despite our rhetoric, our writings, our hopes and our critiques, in the final analysis law can never manage to serve either truth or justice? Like Melville’s whale, as Tom Hilbink suggests, or like the Real, to use Lacan’s term, truth and justice may, after all, be beyond representation and therefore beyond the reach of law, of literature or, lastly and sadly, of cause lawyering too.

What this volume does do expertly, is to reaffirm what we know without knowing, to use a psychoanalytic trope. That is, that the unconscious is not inside us but outside: that the unconscious can be seen, and can be heard most loudly and vividly in our cultural representations. The essays also show, some more clearly and powerfully than others, that that culture, however ambiguous and indeterminate at its tinkered edges, is overwhelmingly in tune with the dominant ideology. While the workings of power are reduced to moral battles between attractive, poor and preferably female individuals, the legal system can continue to be seen as being, by and large, ‘alright’. The authors’ plea for more nuanced understandings of the ambiguities of meaning and representation is well taken, therefore, but one hopes that, in the rush to celebrate ambiguity and indeterminacy, we do not miss the crucial point that, far from ‘rich and complex’, the workings of ideology are unfortunately deadeningly and banally simple.