Douglas NeJaime's Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a "cause" exists because the dominant institutions of society have failed to represent the interests and ideas of some subgroup, at least in its own eyes; and government is the most dominant of dominant institutions. Causes therefore draw their energy from the desire to change the direction the state has taken. Cause lawyers are a nuisance to the state, and they mean to be a nuisance. It comes as a surprise, then, that they would actually be invited to become insiders; that is, no doubt, the main reason that cause lawyering within the state has attracted insufficient previous attention.
Of course, there are causes and there are causes: lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights is a cause, but so is the Race for the Cure and promoting classical music in public schools. The latter two will hardly ever stand in opposition to government. I take it that NeJaime's focus is on politically controversial causes, and that will be my focus as well.
NeJaime provides a compelling analysis of the major ways in which cause lawyers can operate within the state to further their cause. His scholarship is comprehensive and first-rate. He considers cause lawyers working for a variety of causes-not only LGBTQ rights, but also disability rights, civil rights and affirmative action, feminist causes, and conservative causes.
The paper raises fascinating questions about how to reconcile the lawyers' two identities, as cause lawyers and as government lawyers. Putting the question melodramatically (and with apologies to Tolkien): What happens to a cause lawyer when he or she decides to use the Ring of Power? Can she still remain a cause lawyer, or does it transform her, or even-keeping Tolkien's Ring in mind-devour her?
81 Fordham L. Rev. 705-714 (2012)
Scholarly Commons Citation
Luban, David, "The Moral Complexity of Cause Lawyers Within the State" (2012). Georgetown Law Faculty Publications and Other Works. Paper 1232.