Document Type

Article

Publication Date

2006

Publication Citation

94 California Law Review 575 (2006)

Abstract

For more than a decade, there has been a steady growth in what is now commonly referred to as the 'cause lawyering' literature. Partly as a response to those who were critical of the legal profession during the 1970s and 1980s, cause lawyering scholars have sought to rebut these critics' charges, as well as more comprehensively illustrate what, why, and how cause lawyers do what they do. While the critics of cause lawyers on the one hand, and cause lawyering scholars on the other, have made enormous contributions to the debate, only recently has the discourse shifted to examining an important element of cause lawyering behavior that until now has received limited attention. Building on this exciting new work, I suggest that scholars need to consider more closely how people working on a cause at the grassroots level interact with, attempt to influence, and make demands of their lawyers, and how in turn these lawyers respond to such lay-advocacy.

Although cause lawyers rely on varied forms of legal and political techniques, for this study I focus specifically on the 'primary agent of liberal democratic cause lawyering' - constitutional litigation. The conventional assumption is that the decision to use constitutional litigation comes from the lawyers themselves. After all, the lawyers are the experts who are skilled in this rhetorical practice and thus are best able to determine how and when to employ this strategy. But by focusing on three different grassroots movements, in a different constitutionally-based and democratic society, India, I show how grassroots-leaders are actively involved in assisting their lawyers specifically recast the pressing concerns of everyday individuals into constitutionally recognizable claims. As I explain, the United States and India share a number of important legal and constitutional similarities that makes such a comparative investigation useful. Yet many might think that because issues of caste and other socioeconomic and political cleavages remain starkly present in India, such bottom-up pressure would be rather unlikely. But that such pressure indeed is occurring in the Indian case, as my findings and ultimate conclusion suggest, offers those who study cause lawyering and constitutional litigation in the American context an opportunity to reexamine the interaction between those at the grassroots and the lawyers who work on their behalf.