Thailand Law Journal 2011 Spring Issue 1 Volume 14

Outside the so-called Global North, “speaking law to power” risks more serious reprisal than in western democracies.  Professor Richard Abel’s examination of the institutional sources of opportunity for cause lawyering worldwide suggests that liberal legal ideology is less important than the institutional and political framework of a society.³⁴ The United States’ well-entrenched ideology of rights and relatively independent judiciary are important factors facilitating cause lawyering, but they, in turn, have developed in part because of the opportunities to challenge state authority created by federalism, separation of powers, and institutional support for professional autonomy.  Abel examined societies that ranged from authoritarian to newly emerging democracies and corrupt dictatorships.  He found that “speaking law to power” may occur elsewhere in the absence of significant support for liberal legalism but only when countervailing institutional and political factors enable lawyers to assert legal rights against a powerful government or powerful private actors.  Even where courts and support are available, gains in the legal arena may be measured by quite different meanings and require very different strategies from those of the American civil rights lawyer, and they may be fraught with risk.

Critics have suggested that “judicialization” of human rights in societies with fundamental political and social inequities can transform a creative political movement into a passive client of the legal profession and the courts.³⁵  Critics have argued that litigation, especially successful litigation, has removed movement goals from the arena of politics, where inequality and power can be addressed directly, to the arena of law, in which the issues are abstract, technical, and depoliticized.   Judicialization of a movement’s human rights issues, critics claim, ultimately threatens to undermine a social movement’s agency to define its own goals and its power to claim new rights in the political arena.  Resembling the deep skepticism of the “politics of rights” critique of American law, the “judicialization” critique of litigation on behalf of social movements in developing societies reinforces the importance of Abel’s warning, making cause lawyering even more paradoxical.³⁶  Not only are the prospects for favorable rulings lower and the threat to the safety of lawyers themselves often significant, but even when legal strategies succeed, there is reason to fear undermining the progressive political potential of social movements.

Studies of cause lawyers, somewhat ironically, underemphasize the most puzzling aspect of public interest law practice in developing societies, namely why anyone would choose such a career?  Relatively few studies of cause lawyers are about careers, much less about intergenerational changes in the evolving context of development and politics.  What leads lawyers to pursue a career that involves infrequent success, limited material reward or recognition, and, possibly significant personal risk?   Further, where success may carry some risk for the movement’s political sustainability, as both lawyers and movement leaders surely understand, what creates such faith in the power of rights, and to what benefit or at what cost?  Lastly, do the answers change in the shifting winds of symbolic and material international support for movements and rights?   The goals of cause lawyers and the development of what they do, their “expertise,” may be understood best in a generational, or intergenerational, context.

1. Litigating for environmental justice

            In the United States, “cause lawyers” are deeply involved in protecting environmental rights.³⁷  Litigation by citizens to enforce environmental rights occurs frequently, and is viewed as an important strategy by environmental activists.³⁸ So-called “citizen suits” may be brought by ordinary citizens to force government agencies to follow the law, even though the agency has not taken any action that directly involves those particular citizens.  For example, a citizen suit could be brought to force an environmental protection agency to set pollution standards, or to require industry compliance with certain procedures, or to hold an open hearing on policy, as required by law.  Many laws, including modern environmental rights laws, expressly allow citizen suits. Even in the United States, this kind of citizen litigation against regulatory agencies’ to ensure compliance with law is hotly debated.³⁹ But skeptical assessment of litigation’s contributions to greater social equity has not deterred environmental advocates from investing enormous amounts of money and other resources in litigation to influence policy because public interest litigation is an important career pathway to greater recognition and power.  Cause lawyers exist both within and outside the government, and litigation for national environmental rights organizations attracts elite graduates eager to launch successful careers on a path to power, recognition, or material comfort.   Environmental decisions by the Supreme Court remain an important scorecard for environmentalists.⁴⁰ The landscape of high profile litigation is dependent on the relationship between the American legal profession and the power-brokering role of courts that has permitted development of a powerful profession representing powerful clients.Even public interest lawyers gravitate to the powerful client; in this case, the powerful client is often a financially and politically well-supported organization, reflecting the capacity of national public interest movements to mobilize support.  At the local level, citizen-advocacy for environmental causes is also well-established, and civil society or community groups seek lawyers to assist them in protecting environmental interests at every level.  The litigation system, long dominated by lawyers’ interests, is user friendly, providing a variety of citizen suit, class-action, fee-shifting,⁴¹ and other mechanisms which facilitate litigation of important statutory and constitutional issues, including environmental rights.

Conditions for lawyers, and especially cause lawyers, in many developing societies are radically different.  The more highly centralized and authoritarian the power of government, the more fractured and non-representative the institutions of political power, the more underdeveloped the popular capacity for politics, and the less receptive or effective the court system in holding the powerful accountable, the less a cause lawyer’s working conditions resemble the advantageous circumstances of developed western democracies.   In many developing societies, environmental issues – issues which in the first instance concern use of water, land, crops, wildlife, or human resources – are fundamentally about altering the distribution of power.  Environmental protection often means resistance to displacement by development projects and destruction of a traditional way of life.  Protection of the “environment” means decentralization of power where power is highly concentrated or centralized and popular participation in policy making where there is no such expectation. While concern for water and wildlife may be important, the conflict may be only secondarily about protecting natural resources and species for their own sake.  If, as some scholars maintain, cause lawyering in developing societies is dependent upon external support,⁴² the differences between an INGO or international agency’s interpretation of protecting “environmental rights” and domestic perceptions of those same conflicts is another potential source of problems for the cause lawyer or human rights advocate.

34. Richard L. Abel, Speaking Law to Power: Occasions for Cause Lawyering, in Political Commitments (Austin Sarat & Stuart Scheingold eds., Oxford 1998).

35. See Law and Disorder in the Postcolony (Jean Comaroff & John Comaroff eds., Univ. of Chicago Press 2006) and Ran Hirschl, New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 Fordham L. Rev. 721 (2006).  See also, for helpful review of the literature, the article in this volume by Professor Mimi Ajzenstadt, Judicialization, Neo-Liberalism and Foreign Workers in Israel.  See infra Part VII for a further discussion of judicialization.

36. Second thoughts about investing in litigation are pervasive even under the most favorable conditions.  See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Univ. of Chicago Press 1993).  Yet the hope of linking litigation to domestic political support still motivates the effort to achieve symbolic victories.  See Michael W. McCann, Rights at Work:  Pay Equity Reform and the Politics of Legal Mobilization (Univ. of Chicago Press 1994); Jonathan Simon, ‘The Long Walk Home’ To Politics, 26 Law & Soc’y Rev. 923 (1992).

37. See Barry Boyer and Errol Meidinger, Privatizing Regulatory Enforcement:  A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 Buff. L. Rev. 833 (1985).

38. James R. May, Now More Than Ever:  Environmental Citizen Suit Trends, (Envtl. Law Reporter, Vol. 33, 2003), available at http://ssrn.com/abstract=1334218.

39. ee, e.g., Jim Hecker, The Difficulty of Citizen Enforcement of the Clear Air Act 10 Widener L. Rev. 303 (2003).

40. See, e.g., High Court Losses Stun Environmentalists, National Law Journal, Jun. 29, 2009, http://www.nlj-digial.com/nlj/20090629/?pg=10.

41. See Robert Hogfoss, Comment, The Equal Access to Justice Act and its Effect on Environmental Litigation, 15 Envtl. L. 533 (1985).

42. Yves Dezalay & Bryant G. Garth, Constructing Law Out of Power: Investing in Human Rights as an Alternative Political Strategy, in Cause Lawyering 354-357 (Austin Sarat & Stuart Scheingold eds., Oxford Univ. Press 2001).

43. Thomas Risse & Kathryn Sikkink, The Socialization of the International Human Rights Norms into Domestic Practices:  Introduction, in The Power of Human Rights:  International Norms and Domestic Change (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., Cambridge Univ. Press 1999).

44. Sally Engle Merry, Human Rights and Gender Violence:  Translating International Law into Local Justice 1 (Univ. of Chicago Press 2006).

This article is published with the kind permission of Frank Munger. The article originally appeared Originally appeared in Volume 9 of the International review of constitutional ion (2009).