How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?

Abstract

In this article, we begin to respond to the deceptively simple question: How do cause lawyers decide when and where to litigate on behalf of their cause? We consider the choice of location and timing faced by cause lawyers when more than one jurisdiction evinces a suitable legal environment for pursuing litigation on their cause. To consider this choice, we use evidence from the timing and actions of cause lawyers in the marriage equality cases in the United States from January 1990 through December 2004. And, we show the value in utilizing methods that are relatively novel in cause lawyering research—statistical models—to consider the apparent commonalities, beyond a suitable legal environment, across locations and time periods that might prompt cause lawyers into action.

Empirisch-juridisch onderzoek

“…10 Dinovitzer 2016. 11 Barclay & Chomsky 2014. 12 Schwarz & Murchison 2016 van testable claims en proberen zij bestaande assumpties systematisch te weerleggen om uiteindelijk tot nieuwe inzichten te komen die breed toepasbaar zijn.…”

No Promo Homo

“…Yet, other scholars found distinct benefits of the litigation strategy, namely through the generation of publicity for the movement, the opportunity for educating the public on the issues, and the use of lawsuits as leverage for political gains (McCann & Silverstein, 1998;Levitsky, 2005;Zackin, 2008;Keck, 2009;Barclay & Chomsky, 2014;Leachman, 2014). The visibility of litigation is a victory for social movements, elevating their agenda and generating support in the broader population (Leachman, 2014).…”

“…Legislators can use the interest in an issue generated by a lawsuit or challenge to determine the policy agenda (Lytton, 2008;Keck, 2009). Lawsuits could even be used as leverage against lawmakers in an attempt to enact legislative change rather than judicial, which was the result of the litigation efforts in Utah and Arizona (McCann & Silverstein, 1998;Levitsky, 2005;Keck, 2009;Barclay & Chomsky, 2014). Using the court system to open up legislative possibilities is a tactic noted by political scientists Barclay and Chomsky: "Cause lawyers may be litigating to engage in legislative agenda setting, assist in the framing of legislative debates, as well as to encourage legislative, rather than judicial, resolution on the policy issue" (Barclay & Chomsky, 2014, 616).…”

“…Since scholars have extensively studied both the advantages and disadvantages of social movement litigation, many have come to a consensus about the overall usefulness of the courts: Legal solutions are best pursued as one in a myriad of social advocacy strategies (McCann & Silverstein, 1998;Levitsky, 2005; Barclay & Chomsky, 2014). It is the heterogeneity of tactics employed by a social movement that ensures a greater chance for success.…”

“…It is the heterogeneity of tactics employed by a social movement that ensures a greater chance for success. By attempting other avenues of advocacy in addition to, rather than relying wholly on, the courts, movements can reap the benefits of litigation-generating publicity, leveraging lawmakers-without letting the less radical, rights-based approach dominate the movement (Levitsky, 2005;Barclay & Chomsky, 2014). Furthermore, scholars of social movements have found that litigators are aware of the limitations of legal solutions and use the law creatively to achieve movement goals (McCann & Silverstein, 1998;Barclay & Chomsky, 2014).…”