Politics and Civic Professionalism: Legal Elites and Cause Lawyers

REVIEW SECTION SYMPOSIUM
Lawyers and Politics
Politics and Civic Professionalism:

Legal Elites and Cause Lawyers
Terence C. Halliday
RONENSHAMIR. Managing Legal Uncertainty: Elite Lawyers in the New Deal.

Durham, N.C.: Duke University Press, 1995. Pp. 252. $54.95 cloth;
$18.95 paper.
AUSTINSARAT
AND STUART
SCHEINCOLD,
eds. Cause Lawyering: Political
Commitments and Professional Responsibilities. New York: Oxford Uni-
versity Press, 1998. Pp. 560. $60.00 cloth; $21.00 paper.
Over the past 15 years, a great deal of heat and quite a bit of light have
been generated about lawyers economic behavior. Lawyers have been char-
acterized as economic maximizers bent on a project of market control and
collective status mobility. This point of view had the felicitous result of
demystifying a great deal of lawyerly self-congratulation,and it established a
bracing counterpoint to the innocence of the uncritical functionalist theo-
ries that preceded it.
Yet the concentrated focus on economic behavior has diverted atten-
tion from an equally or more important agenda-the politics of lawyers and
their impact on political liberalism. The export of a strongly North Ameri-
can model of lawyers collective action, which placed strong emphasis on
the control of markets, blinded scholarship on legal professions to the
Terence C. Halliday is a senior research fellow, American Bar Foundation, and

president, National Institute for Social Science Information. He has written extensively on
lawyers and politics in the United States and overseas. His latest books (Halliday and Karpik
1997a; Carruthers and Halliday 1998) deal with the role of lawyers in the rise of political
liberalism and the influence of professionals on revision of corporate bankruptcy law in
England and the United States. He is currently engaged in a research project with Bruce
Carruthers on the globalization of statutory, corporate bankruptcy law.
0 1999 American Bar Foundation.

0897-6546/99/2404-lO13$01.00 1013
1014 LAW AND SOCIAL INQUIRY
engagement of lawyers in regime transitions and fundamental political

changes occurring in many parts of the world. With the radical transforma-
tions occurring in Eastern and Central Europe, and the valorization of lib-
eral democratic values around the globe, a sustained inquiry on lawyers
engagement in political causes could not be better timed.
Lawyers impact on the fortunes of political liberalism offers a bracing
new agenda for comparative and historical studies of legal professions. A
scholarly and empirical inquiry into lawyers encounter with political liber-
alism can approach the problem from sharply contrasting vantage points.
From a historical or developmental perspective, observers might variously
appraise lawyers contributions to the construction of liberal institutions, to
their periodic reconstruction, or to their destruction. They may find lawyers
championing liberalism and lawyers subverting it. From either historical or
contemporaneous vantage points, attention might be focused on the heights
of liberal institutions themselves in the throes of state building or on atten-
tion to the penetration of those same institutions into the lives of distant
individuals, peripheral and marginalized groups. By the same token, the
study of lawyers can begin from the lofty reaches of professional elites,
themselves well integrated into the structure of legal and political power, or
from the distant realms of practice where a commonality of professional
identity is scarcely perceptible. Thus, the study of lawyers and liberalism
exists in a tension between the center and periphery of political power and
professional status.
Of course, there is another potential axis of analysis, and that turns on
the historical accomplishment or not of a liberal political order. Arguably,
the role of lawyers will differ radically in those societies where liberal insti-
tutions have been painstakingly constructed, endlessly reformed, and jeal-
ously protected versus those societies where liberalism has been passively
resisted, strenuously opposed, or ruthlessly dismantled.
Shamirs Managing Legal Uncertainty and Sarat and Scheingolds edited
volume on cause lawyering each broaches lawyers engagement with liber-
alism, although that is not necessarily the way they construe their inquiries.
They do so not only in ways that illuminate the sets of tensions endemic to
liberalisms fortunes, but in a manner that yields theory and concepts, evi-
dence and examples, for a broader theory of lawyers and politics. The two
volumes themselves help set the contours of this theory, for elements of
each effectively place the other in tension and enable us to advance toward
a more fully rounded account of what is arguably lawyers most ennobling
historical project.
Shamirs essay on elite lawyers reactions to the New Deal identifies
tensions within the profession over state building and the equivocal defense
by legal elites of the autonomy of law. In so doing, Shamir offers a thought-
ful, provocative, and often tantalizing treatment of theoretical foils as dispa-
Legal Elites and Cause Lawyers 1015
rate as the theory of professions, the political sociology of the state, and the
jurisprudence of legal formalism and instrumentalism. While each theme
warrants its own extended treatment, I shall assimilate his discussions of
professionalism to the hoary problem of the autonomy of law, which for
Shamir becomes the institutional problem of judicial and executive author-
ity in a rule-of-law state-that is to say, the very conundrum that sits at the
heart of liberalisms institutional matrix. Here then are elite lawyers cap-
tured at a moment when the nature of executive and judicial authority is
being redefined; when the rights of a liberal, democratic polity are being
reconstituted; when lawyers are compelled to confront their own confusion
of private and public interests.
Sarat, Scheingold, and their many contributors, by contrast, range
widely over time and place to assay a newly labeled category of legal prac-
tice-cause lawyering. While a portmanteau concept with relatively little
denotative precision, cause lawyering is defined by Sarat and Scheingold as
an enterprise in which lawyers are committed to using their professional
work as a vehicle to build the good society (p. 3). In so doing they elide the
hallowed distinction between law and morality, politics and legality. Cause
lawyers are intent on altering some aspect of the social, economic, and
political status quo, which not surprisingly embroils the profession in con-
flicts with the state and a wide variety of vested interests (p. 4). But it
becomes clear as the book unfolds that cause lawyering resists such ready
categorization, for contributors use it as a label to embrace everything from
left-liberal and radical lawyers, who are intent o n transformative, redistribu-
tive politics; to bar elites who seek to resist incursions of military or political
leaders; to alternative, grass-roots, community, and poverty lawyers. It does
not, as we shall see, embrace right-wing lawyers or those the contributors
could not label as progressive.
Despite the terminological untidiness, however, the Sarat and Sche-
ingold volume offers much to advance a theory of lawyers and liberalism. It
places politics o n center stage. It looks again, with a new seriousness, at the
complexities of lawyers collective mobilization, and the ambivalent rela-
tions of cause lawyers to the dominant bar associations everywhere. It points
anew to courts, going beyond their inclinations to support emancipatory
litigation, to the conditions of their independence from executive, legisla-
tive, military, and populist control. The cause-lawyering volume does come
at politics from a very different angle than do Karpik and I in our historical-
comparative analysis of lawyers and political liberalism (Halliday and
Karpik 1997a). But in many ways it asks similar questions and arrives at
similar results. The central problem for Sarat, Scheingold, and Shamir is the
relationship between law and politics, and its pivotal theoretical foil is the
1. See the accompanying review of this volume by Stuart Scheingold.

autonomy of law. Each volume spotlights two poles of a creative tension o n

which liberalisms vitality ultimately depends.
Shamirs book and the cause lawyering volume map densely the con-
tours in debates over lawyers and political liberalism. Where Shamir treats a
state where rights are supposedly well institutionalized but under threat, sev-
eral cause lawyering contributors treat states where rights have never been
firmly institutionalized. Where Shamir deals with legal elites who focus o n
institution building, most cause-lawyering episodes deal with lawyers who
are at the margins of practice. Yet Shamir and the cause-lawyering authors
also explore in common some fundamental antinomies: between the neu-
trality and proceduralism of liberal legal ideology, o n the one side, and the
substantive claims of justice through pursuit of economic and social rights,
o n the other; between the necessity of a relatively autonomous legal system
for the preservation of certain rights, and the resistance of such a system to
the extension of other rights; between the ambiguities of professionalism as
an ideal and an interest; between the tension of law and morality, of the
bright line between professional neutrality and moral commitment.
I shall return in the conclusion to some of these antinomies for they
sensitize us to the complexities redolent in lawyers manifold pursuit of or
resistance to the liberal ideal actoss history and nation. In the following
sections, I shall review Shamir and then Sarat and Scheingold as each vol-
ume relates to three primary elements of what I contend are necessary com-
ponents for a defensible theory of the relationship between lawyers and
political liberalism. Without any one of these elements, an account of law-
yers politics is both truncated and incomplete. That incompleteness leads
to either a set of assumptions, frequently smuggled into theories without
express consideration (such as an implicit theory of motivations), or a par-
tial explanation that ignores contingencies of action that are crucial to a
rounded theory.
First, such a theory of professional action, like the general theory of
action, must incorporate a motivutional theory of action. That is, a theory of
lawyers behavior must identify the interests, orientations, and impulses that
drive lawyers behavior from within. Such an account should, moreover,
explain where these motivations are inculcated and how they are sustained
or attenuated. In an elaborated form, such a motivational theory would be
integrated into a theory of legal and general culture.*
2. The general theory of action has both a specific and general meaning. It is most
broadly articulated in Talcott Parsons, Toward a General Theory of Action (1951), where Par-
sons and his collaborators make the global claim that the explanation of social action requires
integrated theories of motivation, social action, and culture. Of course, it is not necessary to
subscribe to the particular form of Parsonss theory in order to make a related claim, as we do
here, for the significance of motivation in social explanation. It should be noted that this
approach merely makes ostensible, and thus opens for elaboration and debate, what many
theories of legal professions leave implicit-namely, what motivates lawyers in their various
spheres of activities. Even in Cause Lawyers, only two chapters, those by Menkel-Meadow,
Second, a theory of professional collective action in relation to polit-

ical liberalism must include a theory of the institutional structure of politics,
including that of the state and the structure of justice. How is power institu-
tionally distributed among the agencies of the state, between the center and
periphery of political power? What institutional checks and balances divide
power, yet maintain a creative engagement of state institutions with each
other? Most particularly, how is laws autonomy constituted in the structure,
composition, and powers of the judiciary? And what sorts of political alli-
ances have been forged between judges and the legal profession? As we shall
see in greater detail below, every configuration of the institutional structure
of power affects and reflects the potency of lawyers collective action and
the probability that their mobilization will enhance or detract from liberal
political regimes.
Third, a theory of lawyers engagement in political liberalism must pro-
vide a contingent theory of professional collective action. By contingent I stip-
ulate that a theory must be able to show the circumstances in which one set
of outcomes (national or local, social or economic, historical or contempo-
raneous) will occur when another will not. For instance, when and how will
lawyers mobilize for or against liberal politico-legal ideals? How does inter-
nal professional differentiation influence the capacity of lawyers to act to-
gether? What is the price of compromise necessary for action by the
profession as a whole or the price of divisiveness when rump groups break
away from the main associations to express their own, more pure views?
How does the embeddedness of lawyers in various social and political net-
works influence their efficacy? By collective action, as we shall further see
below, I refer both to group activities by lawyers and to action by individual
lawyers who speak o n behalf of the group.3
Both books directly or indirectly encounter each of these themes in
ways that enable us to integrate them more holistically into a broader the-
ory of professional political action. And each, we shall see, goes some dis-
tance to compensate for silence in the other.
I. ELITE LAWYERS AND THE POLITICS OF LEGAL

AUTONOMY
Shamirs Managing Legal Uncertainty treats lawyers politics at a turning

point in the development of the American state-the New Deal. In the
early 1930s, the United States experienced wrenching financial depression;
and to a lesser degree, that by Sarat, directly confront a central assumption of most other
chapters-that cause lawyers are motivated by strong altruistic or ideological commitments to
particular social, economic, and legal ideals.
3 . For a refined and fruitful analysis of collective action by lawyers, and its various mani-
festations, see Karpik (1995).
millions lost their jobs; populations of workers and families drifted from
place to place in search of relief. Hunger and despair, in different measures,
enveloped worker and farm owners, investors and bankers.
President Roosevelt, a scion of the American upper class, became pres-
ident as a Democrat. Roosevelts government enacted a series of statutes
and pieces of emergency legislation to cushion the crisis, forestall a recur-
rence, stimulate recovery, and protect investors, workers, and ordinary citi-
zens. These measures effectively reconstituted the American state, which
had always been minimalist. New Deal legislation and a variety of adminis-
trative acts, together with some abortive judicial initiatives, created a sub-
stantial new administrative apparatus. It pushed Congress into a range of
law making that was much more intrusive into market and social regulation.
Thus, for scholars, this was a paradigmatic moment of state building.
Shamir examines four key pieces of legislation: T h e National Industrial
Recovery Act (NIRA),4 the Securities Act of 1933 and the Securities Ex-
change Act of 1934,5the National Labor Relations Act of 1935,6and the
Public Utility Holding Company Act of 1935.7 These have in common,
first, a set of efforts to regulate labor and financial markets and commercial
life; second, initiatives to protect the vulnerable; and, third, establishment
of administrative agencies in government with extensive powers, relatively
independent of court review, and relatively hostile to lawyers. Indeed, to-
gether, the four pieces of legislation perceptibly moved law away from law
finding by courts, judges, and cases to the new regulatory state in which
4. NIRA was enacted in 1933 and struck down as unconstitutional by the Supreme
Court in 1935. It was explicitly conceived by the government as an emergency piece of legis-
lation that would be on the books for only two years. While Roosevelts administration ex-
pected it would be found unconstitutional, pressure for enactment was warranted on grounds
that the act was temporary, and that extraordinary times required extraconstitutional ac-
tions-that is, the economic equivalent of war. Some added a political justification that it
would forestall communist revolution. We learn little in this book about the provisions of the
act, but they apparently included the creation of business codes of practice by trade associa-
tions to moderate excesses of competition, collective bargaining for workers, and relaxation of
antitrust provisions for industry. The NIRA also set up the National Recovery Administration
(NRA), which had wide powers to sponsor and formulate codes, interpret codes, permit
changes, and formulate the rules that governed its own operations. Significantly for the legal
profession, however, the NRA was explicitly intended to marginalize procedural law and law-
yers, keep adversarial approaches at bay, make legal representation redundant, and forestall
judicial review (Shamir, pp. 38-39).
5 . Tne Securities Act of 1933 and the Securities Exchange Act of 1934 were enacted to
moderate speculation and abuses in financial markets and by investors substantially through
regulation by the Securities and Exchange Commission (Shamir, pp. 38-39).
6. The National Labor Relations Act of 1935 sought to protect workers, permitted em-
ployees to organize and collectively bargain with employers, and instituted the National Labor
Relations Board (NLRB) to monitor the rights of labor and settle disputes (Shamir, pp.
38-3 9).
7. The Public Utility Holding Company Act of 1935 sought to regulate holding compa-
nies and practices, such as financial pyramiding, that had hurt investors and consumers. The
administration of utilities would be moved from federal to state jurisdictions, which elite law-
yers believed would make state courts more vulnerable to pressure from commissions against
the utilities (Shamir, pp. 38-39).
regulations are made, and disputes are resolved, in executive agencies, fre-
quently without recourse to the courts.
Thus the economic and political crisis of the New Deal also became a
legal crisis, since it challenged a model of autonomous law, anchored in the
courts and argued by lawyers, and threatened to replace it with a model of
responsive law, which as we shall see, originated in government agencies
and was presided over by government officials.8 Elite lawyers were thereby
threatened by the marginalization of judge-made law and by the insurgency
of academic lawyers-two movements that Shamir demonstrates are inti-
mately connected, and both of which affected the survival of legal elites in
their positions of professional ascendancy and the autonomy of law as dis-
course and courts as institution^.^
To anticipate Shamirs argument, a political crisis that becomes a legal
crisis, not only for lawyers but for the nation, forces a reexamination by
lawyers of the very concept of the autonomy of law. Is formal law merely
politics under a different guise? Can lawyers separate politics and law-in
their own minds, let alone the minds of such constituencies as clients and
the public at large? Can lawyers argue convincingly for or against legislation
not out of party or client interests, but out of some relatively autonomous
model of professional interest? For Shamir, this critical moment in Ameri-
can history offers a prime site to reappraise theories of lawyers and law.
Shamir seeks to understand how lawyers, and especially the elite bar, repre-
sented by the higher reaches of the ABA, reacted to this new kind of law, to
statutes that significantly changed the character of the state, the powers of
administrative agencies, and the role of lawyers and courts. Shamir ad-
dresses these questions through numerous foils, which he confronts with
dexterity and creativity.
1.Jurisprudence. Shamir challenges legal academics who interpret legal
changes in terms of ideational struggles between competing models of juris-
prudence (e.g., the formalists and the instrumentalists). Nor is he satisfied
with interpretations that simply align sections of the profession with partic-
ular juridical theories-New Dealers with instrumentalist jurisprudence,
formalists with corporate elites and bar leaders. He brings a refined sociolog-
ical sensibility to show that politics of cultural capital among segments of
the profession influenced the positions they took on the New Deal reforms.
2. Theory of Professions. Shamir uses the New Deal case to critique
three theories of professions, each of which would have interpreted the New
~~~~~~ ~~ ~
8. I follow Nonet and Selznick (1978, 51-73) in defining autonomous law in terms of a
disjunction of political will and legal judgment, where procedural fairness replaces political
purposes as the foundation of law and where legal institutions acquire enough independent
authority to impose standards of restraint on the exercise of government power. Responsive
law refers to an instrumentalist jurisprudence where there is an integration of legal and polit-
ical aspirations in order to make law more responsive to social needs.
9. See page 918, section I.C.
Deal differently. A market control or economic monopoly theory, exempli-

fied by the writings of Richard Abel (1989), would interpret the New Deal
as an opportunity for a new kind of lawyers work. But this theory of demand
creation cannot explain why the elite bar resisted, says Shamir. A theory of
civic professionalism, such as I have advanced (Halliday 1987), would see
the New Deal as a moment in which established lawyers would reconstruct
the state and the system of justice as a public good, with its attendant values
of improvement and rationalization. But, concludes Shamir, a consider-
able stretch of the imagination is needed in order to argue that the overall
response of elite corporate lawyers . . . was based o n a contributory relation-
ship (p.121). Jurisdictional theory, exemplified by Abbott (1988), would
see the New Deal as a threat because the new source of administrative law
would threaten the market and status privileges enjoyed by the professional
elite whose privileges rested on the centrality of courts.
Each of these theories effectively places lawyers at different places
along a continuum from instrumentalism to autonomy. Shamir tilts his
lance at a simplistic view of lawyers as hired guns-servants of power-
who respond solely to the demands of clients and who do not manifest their
own distinct professional interests. He challenges a narrow representa-
tional concept of lawyering and shows how the lawyers in his study stepped
beyond the bounds of client interests and were also prepared to resist politi-
cally popular proposals, such as packing the Supreme Court. A sociological
analysis, he believes, can and should rise above jurisprudential debates over
formalism versus instrumentalism. But so, too, should it transcend vulgar
instrumentalism or economism in social science theories of lawyers and
power.
While Shamir sees some merit in each of these approaches, he assimi-
lates them to a theory informed by Bourdieu, which valorizes law as knowl-
edge. Law is a mechanism of social closure, a professional currency that is
mediated through a legal field: a pervasive set of ideas, norms, procedures
and practices . . . structure the range of possibilities for the relevant actors
within it and mark the boundaries of their legitimate action (p. 6). Law
both constrains and enables. It links symbolic systems of meaning to prac-
tices of carriers. Shamir thereby connects social action to symbolic represen-
tations, such as ideas; law can be framed as a site of competition over ways
that boundaries of the field are constituted, over its internal allocation of
functions and power, and over the relations between ideas about law and
the differential histories, positions and tasks of various segments of the
legal profession.
Shamirs methodological approach is to try and identify contingent
links between given structural positions and discursive and nondiscursive
practices (p. 8). He is sympathetic, then, with Lewis (1989) that study of
law and the legal profession must be fused. Going too far in either direction
distorts the distinctive interaction that occurs when both are conjoined.
3. Theory of the State. Within political sociology, a substantial literature
has arisen that critiques the failure of pluralist theories to recognize the
centrality of the state as an institutional actor with interests of its own with
some measure of autonomy from the economic and political interests that
emerge from the market and civil society. Shamir sympathizes with Theda
Skocpols thesis that state managers develop their own agendas, but he criti-
cizes Skocpol and other state theorists for failing to comprehend laws au-
tonomy: In asserting the autonomy of the state, in both class and state-
centered approaches, law and its carriers had been reduced to a mere instru-
mentality (p. 165). Hence Shamir maintains that if it is good enough to
argue for the autonomy of the state and its managers, it is also good enough
to take seriously the autonomy of law.
All Shamirs themes circle around laws autonomy, which is also to say,
the relations of law to politics (and the market, or capital). While each of
the preceding themes could be pursued in this essay with substantial reward,
I shall broach laws autonomy in relation to the theory of political liber-
alism. What does this dramatic historical moment in the reconstruction of
the American state inform us about lawyers valorization of a liberal-legal
political order? Did American lawyers uphold an ideal of legal liberalism
that championed laws relative autonomy from party political and executive
interests? How broadly distributed was that ideal across the various segments
of the profession? How did lawyers mobilize in defense of this ideal?
A. A Theory of Motivations
Elite lawyers, whose positional standing spanned the apex of commer-

cial practice and the leadership of the American Bar Association, reacted
with alarm at the four pieces of legislation Shamir follows. They mobilized
in resistance through the ABA, state and local bar associations, the Na-
tional Lawyers Committee of the American Liberty League, and law firms.
Lawyers made appearances before Congress and filed constitutional chal-
lenges in the courts, both appearing o n their own behalves and o n behalf of
their clients. Disentangling the latter is an important issue for Shamir and
the more general theory and politics.
What drove them? How does Shamir explain their interests and articu-
late their motivations? Answers to those questions enable us to revisit the
three theories of professional action critiqued by Shamir, each of which it-
self contains at least an implicit, but often an explicit, theory of motiva-
tions. At the risk of caricature, the New Deal offered new opportunities for
work, and thus Abels lawyers would strive for market control and economic
self-interest; in my (Hallidays) perspective, says Shamir, the New Deal is a
site where lawyers could demonstrate a capacity for civic professionalism,

where a public good rather than pure self-interest could be advanced; and
for Abbotts lawyers, the New Deal could be seen as a threat to a jurisdic-
tion of federal court practice effectively controlled by elite lawyers.
Shamir engages these theories through the practices of three groups of
professionals: an upper stratum of elite commercial lawyers who dominate
large law firms and the ABA; a lower stratum of solo practitioners; and legal
academics. Let us consider each in turn.
Elite Lawyers
A t first glance, elite lawyers seem to vindicate the most blatant version
of the economic person-hired-gun lawyers who do the bidding of the
clients who pay their fees. The Johnson Bill would have amended the judi-
cial code to take the jurisdiction of public utilities away from federal courts
and vest it in state courts.10 Ultimately, this shift in jurisdiction could prove
very expensive for utilities and so they and their attorneys resisted strongly,
it might appear, o n economic grounds. But for Shamir, this interpretation is
much too crude, though not without some verisimilitude.
Elite lawyers were unlikely to be completely beholden to a narrow cor-
porate interest, n o matter how powerful. An alternative, complementary
theory would have it that administrative law threatened a central paradigm
of justice for legal elites. Shamir distinguishes between two images of ad-
ministrative law: (1) a hierarchical OT cencralist conception of a justice system
in which administrative agencies exercised social control, but courts
wielded ultimate authority; and (2) a pluralist paradigm, where administra-
tive agencies existed alongside courts in a dual system of justice. Reformers
advocated the latter because they perceived that courts could not incotpo-
rate friendly cooperation among parties, and they had a limited capacity
to concentrate expertise for regulatory functions. T h e bar elite resisted the
pluralist paradigm because ultimately the professions own fate turned o n a
class relationship with the judiciary as a source of authority and, ultimately, as
the foundation of autonomous law.
The vesting of ultimate power in the judiciary thus coincided with a
desire not only for control but for status. Shamir postulates that the legal
field in the U S . was established around the centrality of the courts, which
were the foundation of lawyers prestige, influence, and wealth in civil
10. Utilities with multistate businesses strongly opposed this proposal because federal
courts had stronger procedural protections, it was more costly for commissions to pursue utili-
ties in federal courts, new evidence or a trial de novo could be introduced in federal courts,
federal judges were subject to less local political pressure, and federal courts offered higher
quality and more uniformity (Shamir, p. 48).
society. A new administrative state would threaten the established hierar-

chy of authority and prestige within the legal field (p. 81).
This account of elite lawyers actions displays a more refined texture
than conventional economistic or jurisdictional explanations of professional
behavior. Yet Shamir should not stop here, for h e almost convinces himself,
and does convince this reader, that matters are more complicated still. In
one section after another, h e recognizes that the elite lawyers that he stud-
ied evince a more purely legal motivation. A t stake is far more than the
petty material or status interests of practitioners. Hitherto prudent lawyers,
says Shamir, felt they were experiencing a real crisis-a systematic under-
mining of the autonomy of law as they knew it, of the prerogatives of the
judicial system, and, by extension, the power and autonomy of the practic-
ing bar as a whole (p. 77). Shamir flirts with the notion that his elites
might be motivated by ideal interests that uphold a certain conception of
the rule of law: one that fears sweeping discretionary power in the hands of
administrative agencies, and clings to a politico-legal philosophy that an
autonomous judiciary, with highly qualified, incorruptible judges, offers one
last bastion against both executive and populist excess. This is a quintessen-
tially lawyers political and legal philosophy, for it jealously views law and
its institutions as bastions of political freedom and lawyers as its trustees.
Shamir perceives another motivation, reminiscent of Webers writings
o n the rationalization of law, though in service of a quite different conclu-
sion. Legal elites, especially in defense of autonomous law, evince an as-
thetic about legal development. Says Shamir, elite lawyers were apprehensive
about statutory law making as an alternative source of law: it cast law as a
flow of arbitrary acts of power that exposed the law to uneven development
and to unpredictable and abrupt changes (p. 103). And if the centralist
conception of justice were abandoned, law itself would flow in a haphazard,
incoherent, disorderly manner. That this would create uncertainty for lawye
ering, of course, cannot be gainsaid. But is it too much to believe that some
lawyer-statespersons have a custodial view of legal development that is
driven by an aesthetic impetus? They are offended by disorderly, contradic-
tory, conflictual development of law-in this case, statutory law-com-
pared with what they viewed as the organic development of coherent legal
doctrine through the courts, where abrupt changes of course were rare and
did not unsettle the smooth harmony of progressive legal development.
In this and other instances Shamir comes close to a recognition that
lawyers might well evince a civic professionalism in which the attributes of
law and legal institutions have their own intrinsic warrant-not one to be
subject via a reflex reductionism to some utilitarian motivation. For Shamir,
however, it is a struggle, ultimately lost, to recognize these motivations, for
even as he can conclude that lawyers who resisted autonomous, fused ad-
ministrative regulation did not do so for their clients, he cannot help but
qualify that they did so also for themselves and for their place in the legal
field. Of course, the logic of causation could flow either way. Shamir privi-
leges the motivation of consolidating lawyers position in the legal field over
the bid for autonomy that would realize it. Just as easily, however, the logic
might be reversed, and lawyers ascendancy in the legal field be seen as a by-
product of their overwhelming defense of a philosophical ideal-the rela-
tive autonomy of law and its institutions over executive power and legisla-
tive initiative.
Nevertheless, this complex coupling of motivations represents a signifi-
cant advance over monochromatic interest models of professional action.
And Shamir is prepared to entertain a purely legal, ideal, civic motivation,
even if he has not seen it himself. He concedes that some lawyers may
pursue an ideal vision of law, but we have yet to come up with a case in
which lawyers put their ideal interests before their own material and status
considerations (p. 129). This is a hard, paired-motivational test, and it de-
serves to be confronted.
Solo Practitioners
The New Deal had a quite different import for lower echelons of the
profession. For solo practitioners who were hit hard by the Depression, it
carried a promise of relief and new professional opportunities to guide
bewildered clients through the administrative regulatory maze that they
would confront for the first time in the new regulatory apparatuses that
penetrated their lives (p. 93). Through the Federal Bar Association and
other organizations, lawyers of the lower hemisphere of legal practice
wanted to limit competition by excluding lay practitioners from administra-
tive practice. Hence this fusion of material interests, which brought new
sources of income, and jurisdictional interests, which opened up new do-
mains to control, at once embraced administrative practice, but only if law-
yers were given representational standing.
Legal Academics
T h e New Deal opened up a new set of opportunities for legal academ-

ics. The legal field became a contest of wills, says Shamir, between two
factions of the bar: the corporate elite and legal academics. On the high
side, it was a right to determine the law; on the low side, it was a contest
over professional status and influence inside and outside the profession. The
bar elite relied o n a text (the Constitution), an institution (the Supreme
Court) that was its guardian, and legal reason to interpret it. The legal aca-
demics who spearheaded legal realism shocked the establishment with their
cavalier attitude to the Constitution (which they styled an experimental
text, a reference guide to be reinterpreted or sidestepped), and their appeal

to instrumentalism and expediency. The legal realists simultaneously lent
legitimacy to the New Deal, just as the New Deal drew them to the center
of power. The academic realists reframed the spatial boundaries of law,
questioned the internal hierarchy of the legal field, and asserted a new
role for academic teachers in it (p. 135). Shamir treats legal realism not as a
juridical system but a community that shared a mood, and engaged in a
collective mobility project--(a revolt of the academics-at the expense of
the corporate elites and in alliance with the state. That is, the reconstitu-
tion of the state coincided with a project to reconstruct the internal con-
tours of legal professionalism.
The thesis goes as follows. Academics were an isolated profession.
While professionalization was linked to higher standards of formal educa-
tion, academics suffered a dual marginality: in the legal field, courts were
the source of authority, and legal academics were systematizers and librari-
ans; in the academic world, law teaching was remote from currents of intel-
lectual opinion and proximate to cases.
Step one of the collective mobility project by academics cast doubt and
discredit on the prevailing myths of the legal field. Legal academics vari-
ously charged that law was chaotic, indeterminate, and inconsistent. They
challenged traditional methods of reducing uncertainty and denied the va-
lidity of the scientific core. They undermined the judge-centered ethos and
personalized judge-made law, which they saw to be founded o n will, not
reason. They decried courts as slow, inefficient, and archaic institutions
that were ill suited to solution of modern problems. Legal academics
emerged from the cocoon of legal reasoning to embrace social sciences. This
project was deeply subversive for it cast a shadow of uncertainty over the
law in order to justify whole new practices (p. 148).
Step two of the collective mobility project by legal academics was con-
structive positivism, enabling the professional space to accommodate new
forms of legal production. Legal academics sought to establish a social
science basis for judicial decisions. They aspired to a science of legislation,
administration, regulation (p. 159). Political and social expediency replaced
legal reasoning. Thus the professorial-realist revolution moved toward a
socially informed law that was to be produced by Congress and the govern-
ments administrative machinery under the guidance of trained experts in
the art of statutory legislation and administrative methods (p. 151).
Shamir ends the book with the case of legal academics, but this is an
ambivalent place to end, for it threatens in some respects to embroil Shamir
in the very arguments of those he critiques. The driving force of academic
mobilization is an amalgam of status politics (academics seek higher status
within the profession) with jurisdictional claims o n legislation (academics
want their voices to be heard by legislators), as an alternative arena of law
making. Put in a way more consistent with Bourdieus theory of symbolic

capital, it was a collective project to institutionalize a new legal knowledge
in an institution where legal elites had previously staked n o claim. Shamirs
academics articulated a new vision in which academics were to be the final
arbiters of the law. Lawyering was seen to be at the service of the state.
Frankfurter, for example, harbored the idea of law as a public calling (p.
153).
A subtle shift in tone occurs in Shamirs discussion of academic lawyers
(chap. 7). In earlier chapters, when the bar elite protested its interest in the
public good, Shamir treats this as rhetoric, or imagery, with a slightly
skeptical tone. Here, where he is more sympathetic to the academics, h e
inclines to take them at their word.
Legal academics in another sense represent a limiting case because they
broach most directly the conundrum of lawyers engagement in politics. The
realist program was strongly linked to the interventionist state; lawyers
moved from a critical discourse to an operational one. T h e client shifted
from the corporation to the government. But aligning themselves with a
political program might also have sown the seeds of their destruction be-
cause they abandoned the norm of disinterestedness. That is, they n o longer
could claim a legal neutrality that transcended particular commitments to a
political platform or party. And this is a central problem for lawyers and
their distinctive engagement with political liberalism because, paradoxi-
cally, the more political their forms of mobilization, the more compro-
mised is the distinctiveness of their lawyerly politics and any claim they may
advance to rise above the melee of interest group or class politics.
B. An Institutional Theory of Legal Autonomy

Law has two components: a rule-making, conceptual, textual, discur-
sive side, including both substantive and procedural law; and an institu-
tional side-that is, a set of organizational arrangements that, internally,
structure laws behavior and, externally, structure laws relations with other
elements of the state and the institutions of civil society.
Shamir most effectively treats the first-discursive law, law as lan-
guage, laws form and substance. But he does not very effectively confront
the second. Surprisingly, this imbalance occurs also in his discussion of ra-
tionalization. He shows that lawyers did exemplify impulses toward the ra-
tionalization of substantive law and legal procedure; and h e acknowledges
the regulatory bodies of administrative agencies as rational organizations-
bureaucratically administered, imperatively organized, and so on. But h e
does not take these issues very far.
A strong subtext in the book is best stated in the words of Dean Harno
(quoted by Shamir), who described lawyers as architects of social
institutions. A signal attribute of lawyers-not all lawyers, but their more

statespersonlike elites-is their understanding of, indeed engagement with,
the institutional arrangements that facilitate or inhibit liberal political sys-
tems and the rule of law as a necessary condition of those systems. The legal
profession has the strongest credentials and capacity for thinking systemati-
cally about the relations of courts to executive power, of political parties to
judicial appointments, of the constitution of the moderate state, of the lim-
its of the states incursions into the lives of its citizens, of the relations
between the state as imperative authority and the state as the final arbiter of
social discord.
Shamir is absolutely right in his argument that elite lawyers saw their
fates intertwined with the power and authority of the courts. But he could
have gone on to say that in the ideal interests of many of those lawyers, the
power and authority of the courts cannot be separated from a rule-governed
state in which will and power may ultimately be checked by ideal and rea-
son, in which a court can overturn a statute because it is inconsistent with
the prevailing sense of constitutional meaning. Elite lawyers rightly saw
some of their prestige and status to be diminished by a pluralist rather than
a centralist system of justice. Much more important, however, they thought
they saw some institutional deformity of the liberal political system itself, if
the courts were to be bypassed by an administrative state that made regula-
tions, then adjudicated its own disputes, and was simultaneously plaintiff or
defendant and judge.
A Weberian understanding of rationalization refers not only to the sys-
tematization and codification of procedural and substantive law; it also re-
fers to the rationalization of the institutional structure of the courts
themselves (Halliday 1987, 145-218). Thus, American legal history can be
seen as a struggle over legal formalism in laws substance and procedure, just
as it may be seen as a fight for formal rationality in the structure of legal
institutions. Shamir captures some of the former, but little of the latter.
What does formal rationalization look like in this institutional arrange-
ment? It will have some or all the following elements: court financing, court
appointments, and court agenda setting and decision making that is struc-
turally differentiated from legislative, executive, or political party control.
Western liberal political systems vary in how far they take this: the British
judiciary is much closer to the executive than its American counterpart, for
instance. At the same time as it has some structural separation of judges
from civil servants or politicians, a formally rational court system will also
be internally organized to effect jurisdictional rationality, clear lines of ap-
peal, a clear hierarchy of authority, and fairly binding decision making the
higher up in the system a matter is heard.
Much of Shamirs volume alludes to aspects of these institutional ar-
rangements, which I would argue essentially anchor liberal ideals in social
structures. President Roosevelts provocative scheme t o pack an expanded

Supreme Court with appointees of his own political persuasion signals
Roosevelts clear understanding that appointment of judges who adhere to
the presidents ideological dispositions may significantly reduce the courts
freedom to go its own way. Of course, as Thomas More well demonstrated,
rulers have n o guarantee that their appointees will continue to espouse the
values of the authority who appointed them, although presidents and kings
live eternally in the hope that they will. Hence, some mechanisms to fore-
stall the packing of courts with judges compliant to ruling powers is a
necessary institutional prerequisite to autonomous law, one of liberalisms
prime accomplishments, though this very proposition is repugnant to cham-
pions of responsive law.
So, too, the concept incorporated into New Deal legislation that ad-
ministrative and executive agencies should be able to render binding deci-
sions without recourse of parties to the courts. Although these arrangements
can be effected with some internal measure of appeal, they are subject in
various circumstances to much abuse, as case studies illustrate in the cause
lawyering volume (cf. Shamir and Chinskis account [in Sarat and Sche-
ingold, pp. 227-601) of Israeli courts in the Occupied Territories and the
studies of Argentinian and Brazilian courts during military rule). Once
again, therefore, Shamirs elite lawyers clearly saw that a checking of abuse
by executive agencies-which of course might also do much good with un-
bridled imperative powers-required fortification of an independent high-
court system and a legitimate bridge to take cases away from administrative
agencies, where they were subject to more political intervention, and into a
judicially protected space. Shamir captures well the alarm of acutely attuned
lawyers to a license for unchecked power given administrative agencies: it
will be difficult for the administrative agency to deny to itself the exercise
of extreme powers conferred upon it (p. 24)
Hence the jubilation of elite lawyers over the Schechter decision to
strike down as unconstitutional the National Industrial Recovery Act. As
Shamir notes, such enthusiasm can be viewed instrumentally: it supplied
lawyers with ammunition, giving them a constitutional basis with which
to defend clients. It can be viewed ideologically: a legal basis for neutering
New Deal social and economic activism. But more fundamentally (and
whatever ideological and instrumental rationales might be advanced) for
lawyers, the bold, unanimous decision of the Court demonstrated two
things. First, the Court not only resisted direct pressure from political au-
thority, it also had the capacity to resist public opinion. Second, the Court
presented a ringing reminder that its decision, based o n a text, the Consti-
tution, could check the legislative and administrative impetus of an im-
mensely popular chief executive, doing a public good for needy people, if it
were found to be in breech of the rule-of-laws governing principles.
Herein lies a well-known conundrum of liberalism. On the one side, it

is a grand political project committed, among other things, to the extension
of rights, to the civil, social, and economic empowerment of all its citizens.
On the other side, defense of some of those rights, such as free speech,
freedom from arbitrary arrest, the right to protection from one part of the
state by another part, may come at the expense of efficient, bold actions to
extend social and economic rights. Put another way, an executive or legisla-
ture given unrestricted powers to do a social or economic good might just as
easily appropriate those powers to do evil. T h e seduction of the former may
lead through a series of imperceptible steps to descent into the latter. This
conundrum surfaces repeatedly in activities of cause lawyers.
In my view, Shamir does not step sufficiently outside his particular
case to credit the wider political and ideological context to which his legal
elites are attuned. Of course clients matter. So does party ideology. So, too,
does the autonomy of institutions within which elites define their identity.
But Shamir gives much too little credence to the great political struggles-
in which a concept of the law was integral-that was raging in the 1930s.
Oddly, the New Deal study is historically decontextualized. Many of his
lawyers, I suspect, are framing their actions in reference to the two great
historical struggles going o n at that very time-Hitler has just come to
power in Germany; Stalin has begun his purges after quashing the limited
liberalization of the New Economic Policy: both turn o n the limits of the
administrative state. Will reigns supreme. Executive authority is unchecked.
Courts are being neutered. Legislatures tamed. Americas elite lawyers know
about this because they are a well-traveled, well-read stratum of American
society, closely in touch with those who make foreign policy. With Hitler
there is still some ambivalence. With Stalin there is none. In either case,
what makes America different is not simply its constitutional text. America
is different because it has institutionalized that text in a set of structural
arrangements, and indissolubly at their core is the primacy of the courts as
interpreters of the Constitution.
They know full well-whether or not they regard Roosevelt as a class
traitor-that a court that can be packed for reasons of economic and wel-
fare benefit can be packed for reasons of political expediency; that a Consti-
tution that can be suspended in one acceptable emergency can equally
well be suspended in an unacceptable emergency.
In other words, the status stakes were minor for the institutional archi-
tects and defenders of a liberal polity, a polity whose defining attributes
turned o n some measure of institutional formalization and administrative
review. Shamir looks at elite corporate lawyers and sees an internal drama of
occupational competition. Many of those lawyers looked o n the New Deal
conflicts over courts as a cosmic struggle for a set of institutional arrange-
ments that, at the extremes, could withstand Hitler o n the right and Stalin
o n the left. Shamir actually quotes lawyers using this rhetoric, but he seems
reluctant to take it seriously. He has the right answer for the wrong reason.
Thus, the stakes of the New Deal debates far exceed jurisdictional con-
trol or a status politics that consolidates lawyers at the apex of judicial
power. While their motives were surely as mixed as ours, it is entirely prob-
able that Shamirs elites were also operating in the distinctively contribu-
tory form of civic professionalism I have identified elsewhere (Halliday
1987, chap. 12), and out of their distinctive trusteeship of societys central
protective institutions, a n impulse observed time and again in legal profes-
sions on either side of the Atlantic over the past four centuries (Halliday
and Karpik 199713). While lawyers and judges may share with other profes-
sions an impulse to pecuniary, status, and jurisdictional activities, they are
distinctive insofar as lawyers and judges are the only occupation in a polit-
ical democracy whose knowledge and expertise centers o n the institutional
forms of liberal political systems. That is, they have expertise in the institu-
tional framework of the governance structures of political society. Shamir
clearly comprehends half of this argument, for he concludes the book with
the statement that the strong incentive corporate lawyers had in resisting
New Deal measures was fueled not only by their individual obligations t o
corporate clients but also by their collective interest in arresting the ten-
dency of the states legislative and administrative apparatuses t o usurp law-
producing and law-controlling tendencies (p. 171). It is an achievement
for studies of lawyers to move this far. It would be even more constructive if
that argument also incorporated authentic, ideal interests of professional
trustees for a liberal-legal political order.
C. A Theory of Mobilization
Given what we know about differentiation in the legal field, how and
when is it possible for lawyers to act collectively, whatever the motivation?
Lawyers ability to effect change, to construct, reconstruct, or defend the
institutions of political liberalism, turns o n their capacity to mobilize. I t is a
difficult issue. Not only are lawyers associations subject to the same
problems of collective action that bedevil most voluntary associations, but
lawyers face special problems, for they seek t o act politically without appear-
ing to do so.
Accounts of mobilization must encompass two sets of problems: the
structural bases of influence and the discursive bases of influence. Shamir
makes important contributions to both.
Legal Elites and Cause Lawyers 103 1
Structural Bases of Influence
How do lawyers mobilize? The organizational expressions of collective

action range from (a) action by collectivities of lawyers, such as firms, pro-
fessional associations, and unions; (b) action through networks, which may
or may not be formalized; and (c) alliances between lawyers groups and
interested allies. Moreover, in a diffuse form of collective action, lawyers act
individually, but out of a collective sentiment (cf. Karpik 1995; Halliday
and Karpik 1997b), though I am not concerned with that here.
Shamirs book has the very substantial merit that it takes seriously the
political implications of the well-established findings o n the internal differ-
entiation of legal professions. Thus Shamir takes the structural postulates of
Heinz and Laumanns concept (1982) of the two hemispheres and derives
from it a tacit political logic, a move not convincingly made in either Abels
or Abbotts theories of professionalization. Not only does he distinguish be-
tween higher and lower strata of the profession, but h e constitutes legal
academics as a distinctive professional category constituting themselves as
political actors-though we have already observed that he does so more by
allusion than demonstration, since he offers little reference to collective
behavior by academics per se.
The New Deal initiatives quickly turned latent differences that arose
in the division of labor into incipient problems of professional mobilization.
Shamir focuses on the American Bar Association. This is a good choice for
a number of reasons, not the least that the ABA claimed to speak for the
profession as a whole, it represented the heights of professional authority,
and its archives were accessible. Yet we have observed in other moments of
national trauma, such as the McCarthy period and the civil rights era, that
the multiplicity of federal, state, metropolitan, religious, political, and other
special interest bar groups rarely spoke with one voice, and it would be
surprising if they did so here. Regrettably, we are told little about conflict-
ing or complementary points of view expressed by the wide range of bar
groups. This is a modest problem for this study, but it is critical for many
studies of political liberalism, such as Ledfords o n Weimar Germany (1997)
and Pues on eighteenth- and nineteenth-century England ( 1997), because
organized divisions in the profession can effectively neutralize its impact.
However, even within the ABA, Shamir shows how a potentially pow-
erful professional association with the structural capacity to mobilize may be
subverted by the discursive bases of influence. The most sustained analysis of
mobilization in the book deals with networks that knit lawyers from the
ABA, leading firms, and other organizations into a web of political consen-
sus. Since networks have become a cutting-edge concept in studies of law-
yers, and especially cause lawyers, it is useful to look a little more closely at
the empirical case.
Shamir attempts to show that the elite opponents to the New Deal
formed a relatively dense network of ties that connected a handful or two of
large corporate law firms with the leadership of the ABA, with client repre-
sentation in anti-New Deal hearings and litigation, and with organizations
rabidly critical of the New Deal such as the American Liberty League
(ALL). He identifies a core group that opposed the New Deal by simultane-
ously representing clients and speaking on behalf of the profession as a
whole.
His methodology is to select the population of lawyers who appeared in
congressional testimony or court cases relating to the New Deal legislation.
He selects those who were opposed and who were also on bar committees or
who acted publicly in opposition to New Deal measures. But Shamirs
claims therefore seem considerably overstated. He can say that some fairly
close ties between some ABA members and the ALL probably hindered the
conversion of professional expertise into moral authority, but this was more
because of a collective-action problem-that is, internal conflict-than the
control of the ABA by ALL sympathizers. This evidence does not seem to
permit the conclusion that the ABA and its policy toward the New Deal
was controlled by a coherent limited inner court of elite corporate law-
yers who shaped the associations policies (p. 92). Nor does this evidence
11. For the NIRA, he finds that elite lawyers played a limited role in Congress. In 38
constitutional challenges, only 7 oppositional firms participated, and only 3 of those firms
had more than 10 members (p. 83). O n the Securities Exchange Act, 11 lawyers appeared or
prepared briefs for Congress, and only 2 oppositional firms and 1 individual challenged it in
Congress. For the National Labor Relations Act there were 86 cases in the first year. Shamir
got information on counsel in 40 of them. He found only 13 lawyers in congressional testi-
mony or litigation were from firms of 11+ members.
It is hard to use this evidence to conclude that the bars elite had been fully recruited to
battle against the Act (Shamir, p. 85). Assume that the sample was representative. This
would place only 10 out of 80 of the lawyer/firms clearly in the oppositional camp. However,
the sample might be unrepresentative and biased toward large firms, for whom information
might more readily be available. But then the level of opposition would be much lower. In the
Public Utility Holding Company Act, of 11 lawyers who appeared, only 2 were in the opposi-
tional camp; of the 8 cases that challenged the acts constitutionality, 5 involved firms, mostly
large, were oppositional.
By any standard, statute by statute, the involvement of oppositional firms is not over-
whelming, or even close to a majority of lawyer appearances, except for the Utility cases.
When these are aggregated, only 11 large firms (plus only 3 individuals or small firms) were
both oppositional and involved in ABA activities. Of these 14 individuals and small and large
firms, 8 had ties to the ALL. Relations with the ALL are important: 11 of the 20 lawyers in
Shamirs table 6 were linked with the ALL. Of 58 members of the ALL National Lawyers
Committee, 28 also held key positions in the ABA (officers, executive committee, chairs, and
members of committees). It is important to know of these overlaps, but like most studies of
interlocking directorates, we do not know what they mean. The difficulty on the organized
bar side is the missing denominator: when you consider all the large numbers of individuals
who were ABA officers, who were on the ABA Executive Council, who chaired or sat on key
committees, are not the oppositional numbers very small? (If you multiply all ABA positions
in these categories by the several years involved, one probably has several hundred lawyers as
the denominator.) Of course, several will also have been in positions of leadership for other
bar groups.
permit the conclusion that a rather limited group of corporate firms spoke
for the legal profession as a whole, presumably mostly through the medium
of the organized bar. Neither can the ultimate punch line therefore be sus-
tained: that in the New Deal it was this elite that defined the image of
lawyers as the servants of power and wealth (p. 92).
Probably the most that can be claimed, therefore, is that a fairly tightly
integrated fragment of the corporate and organized bar elite opposed the
New Deal. W e dont know how big that fraction was, nor how influential it
became. For the ABA, however, it must have created a major problem of
collective action.
In the course of his argument, Shamir mentions some intriguing pros-
pects of collective action, which do not receive empirical treatment. The
most important, by far, is the potential for an alliance between elite lawyers
and judges. While Shamir writes of lawyers defense of the federal bench, its
ascendancy as a court of appeal, and its independence from executive con-
trol, he provides no evidence of any efforts by the judiciary to enroll the
ABA in its defense, or by lawyers to form an alliance with judicial groups.
That alliances between the judiciary and the bar can be critical for the
autonomy of law has been demonstrated repeatedly in historical and com-
parative studies of legal liberalism. Here, however, lawyers appear to act at
arms length and o n behalf of judges, not in tandem with them. A similar
question can be raised about relations between legal academics and the
state. Both are treated as reified categories.
Discursive Bases of Influence
Structural capacities to mobilize or structural inhibitors to collective

action provide only one side of a theory of mobilization. The other concerns
the substantive grounds of mobilization and here, as we have seen, Shamir
has a particularly subtle argument, for he uses the New Deal to explore the
complex interplay between law and politics.
In earlier work (Halliday 1983, 1987), I have proposed that one of
lawyers primary means of exercising power is their particular ability to exer-
cise moral authority in the name of expertise. Since every area of modern
social and economic life is regulated by law, and since lawyers are custodians
of laws, statutes, and cases, their jurisdiction permits them very wide lati-
tude, and especially so in countries with a constitution and a bill of rights.
Lawyers capacity to translate their technical expertise into moral au-
thority has at least three contingencies: (1) The issues themselves must not
be highly politicized-that is, they must not constellate the political divi-
sions within the profession itself. (2) The profession itself must be able to
present a relatively unified voice, or at least the elites must be in accord.
Otherwise, politicians can call the professions bluff by showing that the so-
called neutral, technical expertise is shared by one part of the bar and not
the other. And (3), perhaps derived from the first two, the exercise of moral
authority in the name of expert, technical advice works best when it is out
of the public glare. For example, it is more effective in state legislatures
than Congress. Also, it works more readily when the law itself is highly
technical, and clear interest-group configurations have not built up around
it, such as bankruptcy law before the mid-1980s in the United States (Car-
ruthers and Halliday 1998).
Shamirs study clearly shows that three kinds of illegitimate discourse
can subvert a distinctively lawyers form of political influence.
1. When lawyers speak in terms that m y easily be identified with the partic-
ularistic interests of their clients, they impugn their own claims to legal
neutrality. Precisely this problem stalked many of the ABA elite be-
cause some took a view about New Deal legislation that directly
coincided with the views of their clients, despite the fact that their
own views might have originated from quite different premises. It
was difficult for audiences to distinguish between the views of law-
yers acting as private counsel and the views of the ABA.
2. When lawyers speak in terms directly derived from their own party-polit-
ical commitments, they reduce themselves to the status of players on the
party-political playing field and lose any distinctive voice. This, too, the
ABA recognized, for it confronted the severe legitimation problem
that many members of its key committees which opposed New Deal
legislation o n professional grounds were also known to oppose that
legislation o n partisan political grounds.
3. A professions protestations on behalf of a constitutional or institutional
ideal may be subverted if it can be shown that the profession itself stands
to benefit from the vindication of that ideal. Indeed, this is precisely
Shamirs interpretation of the legal elite for their sanctified argu-
ments o n behalf of judicial supremacy and the authority and auton-
omy of law might also be viewed as an ill-disguised, even cynical,
effort to wrap professional aggrandizement in a more palatable prin-
cipled argument.
In fact, however, Shamirs case is a superb example of the limits of
lawyers ability to advance a distinctively lawyerly argument. Karpik has ob-
served that lawyers have a distinctive discourse. It rests o n first principles,
constitutional argument, procedural formality, and a n institutional architec-
ture in the system of justice. When lawyers can maintain this discourse they
concomitantly find a common ground that unifies their own disparate ideo-
logical and sectional views, and they have a claim to a public authority that
stands above the clamor of everyday conventional politics.
But this also provides an opportunity, for lawyers may seek to transform
a putatively moral issue, which has strong substantive tones, into a
technical-legal issue. By this professional sleight of hand, they can stand

above the normal political fray and effect substantive outcomes on the basis
of technical reasoning (Halliday 1983; 1987, chaps. 2 and 12).
Shamir is skeptical of this logic, for he does not find it among elite
lawyers in the New Deal since they manifestly failed to exercise moral au-
thority through a technical idiom. However, the New Deal is a limiting
case, for Shamirs findings are precisely what might have been predicted
from the three contingencies above. None of them were met. The issues
were highly politicized. Even the elite profession was divided. And it all
occurred in the public spotlight. Hence the New Deal politics of the bar did
not fall below the ideological horizon, and therefore, no moral authority
could be convincingly exercised in the name of expertise.I2
However Shamir does observe a classic technique of lawyerly politics
that not infrequently yields success. When lawyers seek to make a substan-
tive case, but can only do so on technical grounds, they invoke an idiom of
legalism, or a rhetoric of legalism. For Shamirs lawyers, operating in a
highly politicized spotlight, they obtained little leverage. But this should
not distract from the point that in circumstances that satisfy the contingen-
cies above, lawyers can be quite effective in theit niggardly politics of
proceduralism. If they want to protect procedural rights, or a certain con-
cept of the autonomy of law, they concede the general point or admit that
they can take no substantive position. Rather they argue on grounds of pro-
cedure, sometimes for a substantive end, sometimes for its own sake, some-
times because it was the only thing on which the profession could agree.
Thus, while Shamir presents us with an excellent limiting case for the
mobilization of discursive professional influence, it does not obviate the
more general point, and a point most critical for lawyers and the constitu-
tion of political liberalism: if lawyers collective voice is to be effective, it
requires both a structural basis of mobilization and a discursive rhetoric cen-
tered on laws autonomy and laws ideals. Lawyers politics, peculiarly
enough, conventionally are antipolitical. And it is only on this ground of
legal neutrality that they can hope to vindicate the ideal of political
liberalism.
12. My own research has revealed many cases when lawyers have sought to affect sub-
stantive economic or social policy by claiming their interventions were purely technical,
when in fact the outcomes were clearly redistributive or substantive. Compare the cases of
civil rights legislation and the reactions of elite lawyers to McCarthyism-an anti-commu-
nism crusade waged by Congress or the HUAC from the late 1940s through the mid-1950s
(Halliday 1982, 1987).
11. CAUSE LAWYERS: STUDIES I N AMBIVALENCE

TOWARD LIBERALISM
The engagement of lawyers with liberalism, however, may be ap-

proached from an entirely different avenue. If we obtain one perspective
from the vantage point of legal elites and the organized bar, we obtain quite
another view from those lawyers, often at the margins of practice, who take
up unpopular causes, frequently at considerable personal cost. The contrast
between these two extremes of practice becomes even more acute when it is
recognized that cause lawyers consciously repudiate the sharp line between
law and politics, legal neutrality and moral commitment, that is drawn by
the leadership of the profession and underwrites its professional ideology.
Sarat and Scheingolds Cause Lawyering opens a broad vista of lawyers
actions. Not only does the authors editorial introduction provide a fine
context for the volume itself, in relation to current debates on the nature of
professionalism, but throughout, the book offers much sophisticated analy-
sis, a good deal of contingent (historical, comparative, institutional) theory,
and a plethora of empirical propositions that could set a research agenda for
legions of scholars.
The rich eclecticism of topic and methodology provides welcome vari-
ety and sometimes bracing juxtaposition. Chapters variously touch o n
movements for pay equity, animal rights, capital punishment, Bedouin land
rights, struggles against military repression, womens rights, peasant move-
ments, and human rights, among others. Furthermore, methodologies range
from the community as the locus of research (e.g., contributions by Kilwein,
Scheingold, Porter), or close examination of a particular movement (some-
times paired with others)(e.g., Shamir and Chinski, McCann and Silver-
stein), through studies of particular types of cause lawyers (e.g., Kilwein,
Scheingold), to comparative studies of cause lawyers between countries
(e.g., Lev, Meili), and even global characterizations on the way to compara-
tive-historical theories (e.g., Ellman and Abel).
Cause Lawyering gains much from its comparative orientation. It casts
aside the parochialism that bedevils much scholarship in the United States
and raises local debates within U.S. scholarly circles into the realm of the
global conditions of liberal-legal institutions and the prospects of liberal
constitutionalism in radically different legal cultures, with their contrasting
political histories, religious contexts, racial and class conflicts. W e are led
from the United States to Malaysia, Indonesia, Brazil, Argentina, Palestine/
Israel, and South Africa.
T h e book presents a great deal of fruitful, theoretical rumination at all
levels, from Menkel-Meadows effort to situate the motives of cause lawyers
within the much broader literature on altruism, to more institutional theo-
ries of the conditions under which cause lawyering will be more or less effi-
cacious. There is tremendous value in bringing this variety of research into a

common frame. It stimulates cross-fertilization of ideas o n one of the most
critical policy matters of contemporary times.
Like Shamir, Sarat and Scheingold recognize the ambiguities of profes-
sionalism as an ideal, most especially the tension of law and morality, laws
autonomy, and the elision of the bright line between professional neutrality
and moral commitment. Whereas the great center of the bar champions
moral neutrality and technical competence, thus separating law from poli-
tics, and legal skills from moral calling, cause lawyers seek to reconnect law
and morality (p. 3). Cause lawyers are inclined not only to identify with
the values and causes of their clients, but to join and mobilize within the
political and social movements sponsored by clients. Thus, cause lawyers
have a vision of the good society-a substantive vision-and they marshal
their legal forces to bring it about, o n their own behalf as well as o n the
behalf of their clients.
The leadership of the profession confronts cause lawyers with some am-
bivalence. On the one hand, such lawyers essentially erode in their practice
the very foundations of the edifice of autonomous law; o n the other hand,
cause lawyers manifestly demonstrate to wider publics that their professional
work as lawyers helps build the good society and, in so doing, legitimates
the legal profession as a whole (p. 3). W e shall see below, however, that
this putative conflict in fact can be seen as a creative division of labor in
which each needs the other, and both together produce a powerful collec-
tive impact. Sarat and Scheingold presage such a shift with their conclusion
that cause and conventional lawyers draw reluctant sustenance from one
another. They are wary competitors whose fates are inextricably, interde-
pendently, and often irksomely linked in a common enterprise (p. 12).
Of course, Sarat and Scheingold are sensitive to the very different
meanings of cause lawyering in societies with a well-established infrastruc-
ture of liberal democratic institutions, where cause lawyering is expansive,
versus those societies with a deficit of liberal democratic institutions, where
cause lawyering is defensive. And they frankly acknowledge the potpourri of
labels under the cause lawyering mantle, but they are not unduly exercised
by this diversity, and they permit their contributors wide latitude in what
each means by the nomenclatures and definitions that guide particular
studies.
The contributors to Cause Lawyering offer a great deal, to which I can-
not do justice here, that enables the elaboration of a theory of lawyers and
the fortunes of political liberalism. I shall therefore assimilate several of the
chapters to the threefold theoretical formulation of conditions that stimu-
late lawyers and the advance of liberal politics that I introduced earlier in
this essay: a motivational theory of action, a conditional theory of collective
action, and an account of the institutional structure of politics.
A. What Motivates Cause Lawyers?
Three chapters open a window onto a much richer tapestry of lawyers

motivations than usually can be observed in theories of lawyers profession-
alism. Two tacit motivational theories of lawyers collective action are
afoot, both of which rely o n a utilitarian logic. Market control theory is
premised o n a motivational theory of the economic person-lawyers as
maximizers of economic utilities or profit~maximizers,and hence the drive
for monopolies to extract higher rents. Cultural capital theory is premised
o n a motivational theory of status attainment: lawyers as maximizers of sym-
bolic utilities, mostly related to class location. O n e great value of this vol-
ume is that it promises t o explode the terribly narrow, and essentially
cynical, character of these motivational theories.
Altruism
Menkel-Meadow (pp. 3 1-68) helpfully calls accounts of lawyers back

to literatures that seek to identify other-regarding or prosocial behav-
iors. These literatures include the burgeoning field of altruism and sacrificial
acts of collective commitment to a cause that is personally costly, well ex-
emplified by rescuers of Jews during the Holocaust, where individuals risked
their lives, often for individuals not previously known to them and of a
different religion.
But virtually n o work examines motivations of cause lawyers (except to
note they were involved in causes, and to work backwards with the pre-
sumption that they must have been constructively motivated), though there
are numerous surveys on initial motivations of law students. And with cause
lawyers, as with others, we should not expect any pure, discernible distinc-
tive motivation. Menkel-Meadow anticipates that virtually any motiva-
tional explanation will require a nuanced account that recognizes that for
most of us, for most of the time, motivations are mixed. This approach re-
quires a far more carefully calibrated account than our current rough
theories permit.
What motivates a poverty lawyer or lawyer who takes o n a military
regime or executive authority run amok? Is it personal identification with
individuals who are now suffering from discrimination that the lawyer her-
self had previously experienced? Is it a religious motivation not to see a
person stepped on? Is it a humanist impulse t o take into consideration
poor people? O r might it also be a civic orientation to better the
commonweal?
Menkel-Meadow postulates that some lawyers have universalistic and
inclusive orientations toward the world. Their welfare is inseparable from
the general welfare of humanity. O r it may be that the fate of others is
inextricably intertwined with lawyers own moral saving behavior.

Whatever the case, these lawyers have an inner compulsion to act as they
do: they hawe to do what they do-it is both an expression of their self and
a moral imperative. As one of her informants put it, If there was no pov-
erty I would not be here . . . . I kind of feel I hawe to do this (p. 46).
But such other-regarding behavior does not have to arise from personal
exposure to particular circumstances. It may also be driven by a commit-
ment to abstract principles or symbols, as well as people, and thus may con-
stitute another form of altruism . . . perhaps we could call it principled
altruism (p. 46-47). Whichever it is, however, Menkel-Meadow main-
tains that altruism and other-regardingness motivate most cause lawyers or
much of what any cause lawyer does.
I am, however, bound to pause, for altruism itself is a label that can be
attached with most ease to those causes with which the writer identifies
personally, or in Cause Lawyering, with activities that members of the cause-
lawyering project applaud, which in their case almost universally are pro-
gressive causes. But what if other-regarding behavior, or selfless devotion,
or defense of the weak is committed to individuals, groups, and values that
members of the cause-lawyering project do not morally approve-issues, in-
dividuals, and the like who are associated with the political right, not the
political left. Will defense of the Ku Klux Klan be also regarded as altruis-
tic? Or in such a situation, will the analysis of lawyers motivations be
subject to a reductionist account of market monopoly or status attainment?
Menkel-Meadows short essay is surely one of the most refreshing ef-
forts to revisit an ignored or hackneyed field in studies of lawyers. The essay
breaks out of the constricted mold of conventional theorizing and emanci-
pates impulses t o produce a more truly variegated, dare we say, human ac-
count of what drives lawyers to immerse themselves in often unpopular,
unprofitable, and unsung activities on behalf of societys outcasts and margi-
nal groups.
Yet this essay, like others in the volume, does not offer an answer to
the vexing question-where do other-regarding motivations originate?
W e know that large numbers of students enter law school with high ideals
and leave school with something else. But we appear to know little about
what it is that students bring to law school (their parents political disposi-
tions, religious commitments, ethical ideals) and why it is that those ideals
seem to atrophy in the very institutions, in many societies, that are flag
bearers for liberal institutional orders. Neither do we know much about the
circumstances that sustain altruism within the work-a-day professional life,
though hints of solidary community support will appear in other essays I
shall consider below. The profession vaguely believes that legal education is
the universal panacea to the inculcation of certain professional values,
though this, too, is largely an article of faith. The origins of liberal-oriented

dispositions warrant careful exploration they have not yet received.
Ideology
Menkel-Meadows concept of principled altruism creates a bridge to

another basis of action, that identified in Scheingolds study of Seattle left-
activist lawyers. Scheingold follows three generations of lawyers who are
associated with the National Lawyers Guild. The Seattle lawyers, and most
conspicuously, their first generation, seek to conform their lawyering to a
political ideology that ranges from Marxist or socialist at the extreme,
through progressive or liberal democrat, to generically leftist. The second
generation, in particular, who began to practice in the 1960s and 1970s,
honed their fusion of political ideals and legal practice o n the heady chal-
lenges of civil rights, antiwar, and antipoverty movements. Moreover, they
fused practice with movement activism, working on the one side as lawyers
and the other as political activists, both energized by the same ideological
commitment: a more just, egalitarian, and democratic society. And they
represented migrant workers and prisoners, battled racism, opposed
apartheid, resisted aid to the Contras.
But a cohort analysis gives Scheingolds paper a particular edge. It is
not hard to imagine why some lawyers, entering practice in the 1930s, and
others, exposed to the thrilling expectations of the 1960s, should be moti-
vated by political beliefs to commit their lives and ideals to transformation
of American society. Yet Scheingold shows that as times change, so do the
cultural moods and structures that sustain ideologies that fly in the face of
most of the profession. The 1980s and 1990s were not propitious times
either to inculcate radical lawyer ideologies or sustain expectations origi-
nally generated by them. Thus the general ideological malaise that has en-
veloped the American Left (p. 133), combined with reduced funding for
practice environments where radical lawyers could practice legal services,
led to a tacit abandonment of transformative objectives and a turn away
for some from impact litigation.
Hence Scheingold reminds us simultaneously that at least one small
fraction of lawyers act for nonpecuniary, nonstatus-enhancing motives, and
that these motivations require propitious circumstances in which to thrive
and reproduce. As the political context changes, political ideology wanes,
but for a dedicated few who draw solidary sustenance from each other, and
maintain their faith through sectarian community.
Empathetic Material Values
W e are indebted to Shamir and Chinski (pp. 227-60), however, for

their demonstration of Menkel-Meadows caution that even the loftiest
motivations are interwoven intricately with careers and prospects, earning a
living, and the material and structural bases of existence.
Shamir and Chinski conducted a study of lawyers who represent
Bedouins in land cases before Israeli Courts. Bedouins, state the authors, are
among the poorest, least educated, and most underprivileged sectors in Is-
raeli society. Lawyers who represent them operate in extremely difficult
circumstances. Why do they do it then? For some, because they share a
general sympathy for the Bedouins plight, a sense of injustice, or some
measure of identification with the other. For others, because it is a way of
discovering ones self in acting for a cause. For another, a senior member
of the Communist Party, representing Bedouins in court permitted him to
use the courts as a site of fairness to persuade them to become loyal
citizens.
Yet matters are much more complicated than a simple correspondence
between a pure motive and a form of legal practice. Paradoxically, the au-
thors suggest that lawyers for a cause are not necessarily those who con-
sciously and deliberately orient their professional lives toward promoting
that cause (p. 230). Indeed, a lawyers sense of acting o n behalf of Bedouins
for cause reasons may have very little correspondence with defending a
Bedouin in the ordinary course of practice, which, in effect, constitutes
cause lawyering. Application of the label may matter little; it is the objec-
tive practice that constitutes the cause. By the same token, however,
Shamir and Chinski are quick to note that causes are not ontological states
but constructed frames. Cause lawyers simultaneously are carriers and pro-
ducers of causes.
This analysis leads to an empirical irony. The authors distinguish be-
tween lawyers who represent the Bedouin explicitly out of a cause impetus,
such as those who work for the Association for Support and Defense of
Bedouin Rights, and local fee-for-service lawyers, who do it because it is
work, albeit work with which they have some sympathy. Shamir and Chin-
ski find it is the latter, the journeyman lawyers, who can sustain the travails
of a practice that has few and minor economic rewards; and it is the former,
the social movement lawyers with a strong sense of moral conviction, who
burn out. Put another way, it is the strange chemistry of a mixed motive-
needed fee-for-service work coupled with a desire to see justice done in most
unjust circumstances-that provides the staying power not so evident in
lawyers whose motives may be more pure and less tainted by material
considerations.
Consistent with the theory Shamir develops in Managing Legal Uncer-

tainty (1995), Shamir and Chinski indicate that the motivational chemistry
also entails the social location and internal hierarchy of prestige and power
in the bar at large. A certain kind of representation of the cause permitted
some lawyers to launch themselves onto an appellate stage. For others, such
as Amir Yaron, a very successful commercial lawyer, professional capital
could be harnessed to a high-profile Supreme Court case o n behalf of
Bedouins. Thus here, as in the New Deal, Shamir affirms that the mosaic
that explains lawyers behavior has many elements: diverse motivations, the
social location of lawyers, and internal hierarchies of prestige and power in
both the bar at large and the bar that engages in Bedouin representation.
All these accounts more or less explicitly presume that a theory of
motivations must be embedded in structures and institutions. They ask, in
effect, what structures inculcate other-regarding motivations? What struc-
tures support the reproduction of those motivations? And what structures
attenuate them? In so doing, they begin to specify what it is about historical
moments and institutional contexts that make some propitious for altruistic
and other-regarding motivations, while other moments and contexts inhibit
nonutilitarian impulses to action.
B. The Institutional Bases of Political Liberalism

There is a central irony in the cause lawyering volume. T h e very law-
yers who seek t o elide the line between politics and law, moral commitment
and legal neutrality, law in the service of programmatic substantive goals
and law as technique and institutional formalism, nonetheless depend pre-
cisely o n such a distinction, and o n autonomous legal institutions, in most
of the defensive lawyering they undertake, and some measure of the offen-
sive lawyering. Thus, to advance causes that in some part might be seditious
of the ideological verities of the great center of legal professions, they none-
theless presuppose the very institutions of the legal establishment they cri-
tique. This irony is not lost on several contributors to this volume, but it
does open up the prospect of a fruitful conversation between those scholars
who seek to account for the behavior of lawyers at the core and periphery of
the profession.
What sorts of institutional structures facilitate or inhibit cause lawyer-
ing-or, put differently, constitute liberal-legal political systems? This dis-
cussion is a particularly welcome feature of this book, because it has been a
missing item on the agenda of research o n legal professionalism. As the
cause lawyering project has advanced, it has given increasing attention to
the institutional framework that enables cause lawyering-that, in other
words, permits lawyers to go from the defensive-seeking to establish basic
rights-to extending them systematically through the population.
Let us begin by examining, first, essays in Cause Lawyering that explic-

itly identify the institutions of liberalism that sustain cause lawyering. This
may be done positively, by viewing institutions where liberalism seems
firmly entrenched, and negatively, with respect to countries where liberal
institutions are poorly or incompletely institutionalized.
Liberalisms Institutional Superstructure
Richard Abel brings his analytical powers to political structures in

much the same way as he has with markets. Abel asks, what are the institu-
tional conditions that facilitate cause lawyers ideals? Peppering his analysis
with a shower of comparative and historical instances, Abel proposes five
key institutional foundations of liberalism.
1. Electoral Processes. Law determines who can vote, how electoral
districts are drawn, what kinds of money can fuel campaigns, and what sorts
of protections secure authentic ballots. Cause lawyers, says Abel, can use
law to structure the competition for political power in each of these ways
(p. 74).
2. Legislatures. Cause lawyers can seek to structure legislatures to re-
dress power imbalances, heighten representation of powerless groups, chal-
lenge hegemonic parties, defend legislatures against executive and military
encroachments, compel legislatures to be bound by law and constitutions,
and use legislatures to check private oppression and exploitation (p. 77).
3. Executives. Cause lawyers, Abel believes, have more opportunities
to press for limits o n executive power, narrow administrative discretion, and
set up and ensure judicial review of abuses by police and prosecutors.
4. Judiciary. Cause lawyers consistently press for the independence of
the judiciary, for cause lawyering always has seen the judiciary as offering
the greatest opportunities to the powerless (p. 87). Judicial independence is
affected by career paths of judges, by how they are recruited and removed,
by the structure of the appellate process, and by mechanisms to insulate the
court in its decision making.
5 . The legul profession. Abel has been one of the professions most unre-
lenting critics. While Abel recognizes that professional associations have a
spotty record of resisting threats to the rule of law, and that lawyers seem
better able to perceive injustice at a distance than at home (pp. 98-89),
nevertheless he concedes here, in a significant turn, that they can play a
crucial role in encouraging cause lawyering. Cause lawyers in turn can
strengthen the autonomy of the bar to provide a bulwark against repression,
while pushing the bar to be more socially responsive.
Abel goes far to identify the opportunities confronted by cause lawyers
as they seek to mobilize these institutions. Interestingly and paradoxically
enough, however, the ability of cause lawyers to use these institutions to
advance their ideals in turn depends o n the construction and protection of

the institutions themselves, and that task usually falls not upon lawyers mar-
ginal to the center of practice or associational professional power, but to
those at its center. Moreover, such a task rests o n a premise fundamentally
antithetical to the presuppositions of cause lawyers-that it is laws relative
autonomy and neutrality, laws partitioning from issues of substantive
rights-that provide the protections essential for effective cause lawyering.
Abels analysis anticipates two extensions. On the one hand, if came
lawyering is defined as broadly as he does here, then virtually all lawyers and
legal establishments may be so defined. On the other hand, if he would opt
for a more precise definition, consistent with many others in the volume
Cause Lawyering, his analysis presages a division of labor between the core
and periphery of the bar that offers a dynamic theory of legal liberalism. I
shall return to this below.
Aspirations to Liberalisms Infrastructure
Several essays instantiate Abels analysis, particularly in countries

where liberalisms fate is in question, either because it is under threat or not
yet firmly established. The studies by Meili (Brazil and Argentina), Ellman
(on the Third World), and Lev (Malaysia and Indonesia) are particularly
instructive for their focus o n the axis between courts and the profession, but
these are not the only institutions whose character will determine the fate
of cause lawyering and the realization of liberalisms ideals.
In Malaysia, Lev demonstrates how inextricably intertwined are the
fortunes of an autonomous profession and the independence of a strong ju-
diciary. From British colonial rule, Malaysia inherited traditions of the rule
of law, which included an indigenous, self-governing bar, governed by the
Bar Council, and a robust judiciary. During the 1970s and 1980s the gov-
ernment and bar drew apart over issues of internal security, government
neutering of the Constitution, and the governments counterattack o n both
the professions Self-governing legislation and a broader government move
to amend the Societies Act, which essentially set the parameters for private
organizations and their political involvements. The Bar Council became
progressively bolder and at least implicitly critical of the government in its
pronouncements on pending legislation, constitutional amendments, police
behavior, legal aid, human rights, parliamentary government, and freedoms
of association and free speech. In fact, from 1978 the government sought
aggressively to whittle the Federal (supreme) Courts review powers,
through replacement of the courts leadership and the reduction of the
courts review powers.
Significantly, the leadership o n behalf of an autonomous court, and its
protection in the face of government assaults, came not from the isolated,
marginal lawyers or legal groups who espoused a particular view of politics,

but from the bar establishment itself. It was the Bar Council that provided
the most vocal criticism and active resistance to government predations.
Institutional activism, in other words, originated from and was sustained by
the seat of professional power.13
Levs analysis is particularly interesting for he circles around to connect
this institutional role of elite lawyers to theories of motivation (p. 446). He
finds a theory of personal motives-name recognition, religious or minority
protectiveness-relevant for some but not all. Professional interests-in the
broadest sense-are telling, for lawyers clearly will prefer to work with
courts, codes, procedures, and the like, which enhance their scope of prac-
tice. But this does not account for the professional and personal risk many
undertake. Most satisfying for Lev is lawyers distinctively lawyerly ideology.
Activists are mostly litigators who take seriously the importance of strong
and reasonably autonomous courts. Moreover, they have generalized tech-
nical legal skills into legal values and thence into political ideology. They
are specialists in state-society relations.
Meilis study of Brazil and Argentina widens the institutional matrix
that determines the fortunes of cause lawyering and demonstrates the
pathologies of a subjugated judiciary. In neither country, historically and
until the near-present, has the judiciary offered much prospect of either
protecting rights or proactively advancing them. While the colonial histo-
ries of Argentina and Brazil may have differed, both Spanish and Portuguese
empires endowed on them regimes where power was strongly centralized in
executives. Meili sympathetically quotes Maiers appraisal of Argentina,
which account Meili believes also to be applicable to Brazil:
The judiciary was structured as a bureaucratic organization, where

power was delegated from the top down to inferior officials, and where
every judge and other judicial personnel was a functionary at the ser-
vice of the State . . . as a component of the administration of State
power; that is, an as instrument of social control. (p. 494)
Neither countrys constitutions endowed the judiciary with powers to

check the executive. And the military regimes in Brazil and Argentina in
recent decades merely intensified the judiciarys impotence, either by assim-
ilating it to the regimes practices or by ensuring that judges were appointed
or cowed sufficiently to cleave closely to the expectations of the repressive
13. Of course, consistent with our recognition that motivations are mixed, that altruistic
motivations may have material consequences, and vice versa, we could imagine a counter-
argument which Shamir would likely advance that, even in this case, a loss of the centrality of
the courts will diminish lawyers powers and place in the legal field. This is the argument
Shamir makes for the opposition of elite American lawyers to the shift of a locus of legal
decision making away from courts to administrative agencies.
regimes. Combined with a positivist jurisprudence and the absence of

strongly institutionalized rights, cause lawyers could well perceive <he judi-
ciary as an extension-and/or facilitator-of executive and military power,
rather than as a defender of individual rights and liberties (p. 496).
T h e assertiveness and degree of repression that an executive is pre-
pared to exercise must also be part of the explanation. Where an executive
or military regime will murder its opponents, including judges and lawyers
without compunction, as in Nazi Germany or the Dirty War in Argentina,
no institution in civil society or the courts can adequately resist it. Of
course, it is presumably no coincidence that in several of the cases we have
discussed, such a degree of repression occurred precisely when the institu-
tions of civil society and the judiciary were weak or subjugated.
Without courts that protect procedural justice, and even more so,
without courts that will extend substantive rights, cause lawyers may be
compelled to turn away from judicial or legal solutions and to act politi-
cally-to turn, in other words, to an alternative means of mobilization that
is fraught with contradictions, as we shall now see.
C. Mobilization
Mobilization of cause lawyers takes on radically different forms de-
pending o n when the infrastructures of liberalism were institutionalized.
Where rule-of-law regimes are substantially in place, at least in discourse if
not completely in practice, then cause lawyers can rely on a combination of
strategies with courts at their center. Where rule-of-law states are not insti-
tutionalized or are poorly institutionalized, then cause lawyers must mobilize
through a variety of means that, paradoxically, may ultimately subvert law-
yers distinctive power.
Since Shamirs book well exemplifies the mobilization of lawyers-al-
beit elite lawyers-in rule-of-law states, I shall give greater emphasis to
those essays in Cause Lawyering that treat states or protostates (such as Pal-
estine) where the rule-of-law is far more tenuous, either because it has not
yet been established or because it is under threat from other centers of
power in society or the state.
Lawyers mobilize in two main ways. On the one hand, the courts pro-
vide them with a distinctive institutional standing that lends them most
leverage in substantial part because their access to the courts is unique.
Their actions in the courts are broadly divided between those that proceed
through individual cases and those that proceed through the collective ac-
tion of the bar as a whole. On the other hand, lawyers may choose to mobil-
ize less distinctively as lawyers but through social and political movements,
political parties, and the like, in which they act much as other citizens. Yet
even here, as we shall see, lawyers may be inclined to urge modes of action
that accord more with a lawyerly view of the world.
In Rule-of-LawStates
Within rule-of-law states, mobilization through the courts on behalf of

political, social, and civil rights appears to be the most rational strategy for
lawyers. They have ready access to courts that in principle are disposed to
hear grievances neutrally and that have autonomy which enables them to
protect rights or, in some circumstances, consolidate or expand them. Yet
the efficacy of courts is not without question. And it is for this reason,
among others, that some proponents of cause lawyering have an equivocal
orientation toward courts.
The conundrum of lawyers mobilization is well captured by McCann
and Silversteins essay o n activist lawyers in political movements in the
United States, which examines the ambiguous relationship between lawyers
and social or political reform movements. Activist lawyers in progressive
movements are subject to critique from two sides. From the perspective of
legal neutrality, the close association of lawyers with a particular cause may
compromise lawyers independence and disinterestedness, and that in turn
may ultimately undermine their effectiveness. From the perspective of pro-
gressive reformers, cause lawyers are subject to the criticism that they are
seduced by the lure of litigation, that they overestimate what courts and
law can deliver by cultivating an unduly optimistic, even naively romantic
view of laws transformative potential (p. 262). They siphon off valuable
resources for legalistic modes of mobilization that bring less expansive or
enduring benefits, and they may effectively shoulder aside other actors who
have more to offer.
McCann and Silversteins analysis compares lawyers to nonlawyers in
two movements, pay equity for men and women, and animal rights. They
argue that cause lawyers take sophisticated approaches to mobilization, em-
ploying a style of flexible lawyering that uses litigation merely as one of an
armory of tactics as circumstances dictate. Courts are one element of a more
complex strategy of mobilization-that is, cause lawyers are not captured by
the lure of litigation.
Incomplete Institutionuli~ation
In nations where courts have not attained a measure of autonomy,

cause lawyers may be compelled to turn away from judicial or legal solutions
and to act politically with the attendant benefits and costs of that form of
action. It is this solution, in the form of alternative lawyering, that has
been followed in Latin America.I4 Its success depends there and elsewhere
substantially on other conditions-money, media, solidarity, legitimation-
which facilitate lawyers ability to act effectively. Mobilization thus depends
in n o small measure o n resource dependence, and that in turn opens up
indigenous groups to various degrees of external control.
Money. Ellmans essay, for instance, notes that little funding for cause law-
yers comes from Third World governments, but rather from Western gov-
ernments, foundations, development agencies, and churches. In Latin
America the role of the Ford Foundation has been so central to human
rights funding that a decision of Ford to pull out of the area, or substantially
reduce its funding, would be catastrophic (p. 354, quoting Wiseberg).
While this may seem to place considerable power in external hands for the
shaping of national agendas, Ellman warns that it is a mistake to attribute
too much influence to foreign groups, since indigenous movements have
usually sprung up in unpropitious circumstances and often at some risk. T h e
process works both ways: grantors learn from grantees as well as vice versa.
Yet granting agencies and international nongovernment agencies (IN-
GOs) have been more interested in first-generation civil and political
rights, or rights concerned with the integrity of the person, in Latin
America. While the International Commission o n Jurists, among others,
has begun to broaden its mandate to social and economic rights, it has more
often been the case that external financial support has fallen away when
indigenous groups have shifted their focus to social and economic rights. In
some measure, the expansiveness of causes in which lawyers can mobilize is
limited by external fiscal resources.
Media. The media offer a strategic opportunity for cause lawyers, as Bisha-
rat demonstrates from his research o n Palestinian rights activists, who
achieved some success by appealing to the public opinion locally, in Israel,
and internationally. Lawyers
have written numerous academic articles and books, granted countless

interviews, offering print and electronic media commentary, held pub-
lic demonstrations, organized press conferences, called short-term
strikes against the military courts, convened conferences of legal schol-
ars, and acted as conduits for information to journalists, consulates,
nongovernmental organizations, and others. (p. 470)
14. Meilis thesis, and the emphasis of Latin American cause lawyers on social activism
and community groups, seem at odds with my thesis that lawyers can mobilize most coher-
ently and effectively when they do so on neutral formalistic grounds. We must ask of the
Latin American cases of political mobilization why these lawyers choose to follow paths of
substantive political mobilization and what costs that exacts on their efficacy. Is it because the
path of neutrality is effectively blocked when rule-of-law values are so poorly institutional-
ized? Thus, lawyers have no choice but to follow a route that champions substantive rights.
The net result has been public exposure of hidden military practices, allevi-
ation of torture in Israeli interrogation centers, and publicity about the situ-
ation of Palestinian prisoners in Israeli jails.
External uulidation. The value of foreign and internal partnerships cannot
be underestimated for cause lawyers because they provide not only publicity
but political recognition and protection at the local level. Palestinian cause
lawyers, for instance, have found themselves between a repressive but legal-
istic Israeli military regime and embedded in a local legal culture with little
tradition of legal constraint o n executive power. Lawyers in Ramallah, for
instance, founded an organization on the West Bank, Al HaqqLSM (Law in
the Service of Man), to document human rights violations and publicize
them. This association gained significantly in stature and international rec-
ognition when the International Commission of Jurists designated it as a
local affiliate. More important, the international recognition endowed Al
HaqqLSM with some protection from the occupying power, since it now had
the capacity to escalate dramatically certain episodes onto the international
stage of public relations (Bisharat, p. 465). Later the Gaza Center for Rights
and Law obtained similar status, and its founder won an international award
for its work (Bisharat, p. 466).
Professional solidarity. While cause lawyers may sometimes see themselves
as marginal or marginalized, they can obtain sponsorship, protection, and
legitimation at the local level by aligning themselves with prestigious elites
in the profession. Such a tactic succeeded very effectively for the Legal Re-
sources Centre in South Africa, which brought onto its board distinguished
lawyers and judges, a measure that likely bought it some immunization from
repression. Ironically enough, the very group of lawyers who are committed
to eliding the distinction between law and politics may nevertheless find
that their own survival and efficacy depends o n appealing to the core tradi-
tions of the organized bar, such as the rule of law, the autonomy of the
profession, and the defense of core civil rights (Ellman, p. 367).
Such professional solidarity extends also t o law schools. Bisharat points
out the disadvantage to legal movements within the Palestinian Intifada
because in the West Bank or Gaza had n o law school until 1992 (Bisharat,
p. 467). And Meili, for Latin America, observes that alternative lawyering
suffers from lack of support from law schools, either because they do not
exist, or their curriculum and jurisprudence have n o affinity with legal ac-
tivism by cause lawyers.
Church. Finally, it must be said that it is a startling omission in this vol-
ume for there to be no sustained analysis of religious institutions. This lapse
is severe because religious institutions can act as the most powerful incuba-
tors of orientations to human action, including political action; they may
count as one of the very few institutions that remain in a civil society that
has been effectively demolished by statist regimes that are jealous of alter-
native centers of power; and the institutional framework and infrastructure
of the church has a capacity for mobilization, or for hosting nascent organi-
zations that is rarely paralleled elsewhere. And, of course, religious institu-
tions may be bastions of conservatism and resistance to causes.
The most notable exception is provided by Meilis account of the Ror
man Catholic Church in Brazil and Argentina, where the church took
sharply diverging positions o n rights. In Brazil, the church was a critic of the
military regime during the dictatorship, and thus earned the accolade that it
became the single largest opposition force to military rule. Moreover, to
the present, Meili reports Pressburgers assertion that most cause lawyers in
Brazil are affiliated with church-connected human rights centers (p. 5 10).
In Argentina, o n the other hand, the church had no identification with the
poor, n o record of opposing the government, and n o criticism of the mili-
tary. Indeed, says Meili, quoting Andersen, the church offered the military
both aid and comfort as they carried out their dirty war (p. 511).
Why is it that a putatively monolithic church will strongly support
cause lawyering in one context and give it n o support in a nearby country?
And what of Protestant churches in Latin America or elsewhere? Nothing is
said here about either insurgent or reactionary Protestant Christianity or
ultraorthodox and expansionist Judaism in Israel. And what of Islam in In-
donesia and Malaysia? Surely any account of cause lawyering must energeti-
cally rectify this (frequently secularist) orientation of social scientists.
111. CIVIC PROFESSIONALISM IN THEORIES OF

LAWYERS AND POLITICS
By fusing together the rich materials in these two volumes, we can
move toward a stronger theoretical formulation of the conditions under
which lawyers are likely to advance the historic project of political liber-
alism. In conclusion, I shall, first, integrate elements of each book that treat
motivational, institutional, and mobilization aspects of lawyers politics.
Second, I juxtapose these findings with those of the project o n lawyers and
liberalism (Halliday and Karpik 1997b) and argue for a political division of
labor o n behalf of legal liberalism that characterizes legal professions in
many settings. Third, I shall propose that lawyers have a singular resource
for a distinctive politics that permits them t o rise above the competitive
playing field of interest groups, parties, and corporatist actors. To descend
onto the fractious playing field of competing interests risks squandering
their unique warrant for political action. Finally, I conclude with some re-
flections o n laws autonomy.
A. Three Elements in a Theory of Lawyers and Political

Liberalism
I have postulated that a theory of lawyers political action, especially as

it is oriented to the advance of liberal political regimes, must incorporate
three levels of explanation, which themselves must be integrated into a
contingent account of the conditions under which lawyers will act on behalf
of liberal politics.
-4 Motivational Theory of Action
Both books provide evidence that supports each of the three theories of
professions reviewed by Shamir. It is to be expected in books on politics
that relatively less emphasis will be given to materialist motivations, of the
sort implicit in Abels writings on market control. Yet Shamir finds eco-
nomic interests in part motivating the ABA elite lawyers as well as the
lower echelons of the bar, both of whom acted at times consistent with their
material interests. But economic utilitarianism is much muted in either
book, itself a refreshing departure from a legal and social science scholarship
that seemed more reflective of Thatchers and Reagans political ideologies
than the historic practices of the profession (Abel 1989; Larson 1977).
Aspects of jurisdictional control and status politics (Abbott 1988),
tacit and manifest, are redolent in these volumes as an expression of utilita-
rian and other-regarding motivations. Thus Shamirs elite lawyers advocate
a court-centered, court-dominated system of justice in which executive
agencies are ultimately held accountable by federal higher courts, in part
because it is precisely these redoubts of legal institutions that they control
and wish to continue to control. Similarly, Shamirs legal academics wage
their jurisprudential campaign against elites of the bar and the bench in
order to vindicate their aspirations to greater influence in the heartland of
professional power and in the new opportunities opened by the New Deal
for wielding executive power. It is noteworthy, however, that while much
cause lawyering could also be assimilated to status motivations (Dezalay and
Garth 1996), most authors of the cause lawyering essays prefer a more up-
lifting account-or at least implicitly advocate a less utilitarian theory.
The cause lawyering volume in particular, but also some of Shamirs
data, lend support to my theory of civic professionalism (Halliday 1987),
which proposes that lawyers frequently act as institution builders or defend-
ers on behalf of autonomous law and legal institutions. The New Deal can-
not be construed principally as a struggle for professional ascendancy over
established institutions (the courts) or new institutions (executive agen-
cies), though undoubtedly such struggles occurred. Shamirs own evidence
indicates that ideal interests, especially around the rule of law, the auton-
omy of law, and the primacy of courts as defenders of liberal constitutional-
ism, mobilized professional elites in defense of formal and procedural

protections. Court packing, for instance, was not repugnant so much for its
politics as for its assault o n the independence of courts from substantive
ideology-something ensured by periodic appointments over several presi-
dential administrations of judges to life terms.
The cause lawyering essays are suffused with theories of motivation
conducive to civic professionalism-that is, action by lawyers that arises out
of altruistic, prosocial, humanistic, and other-regarding motivations. Some-
times these motivations spring from ideological conviction t o a left-leaning
politics or to a civil rights ethos. Sometimes they arise from a commitment
to economic and social rights. Sometimes they spring from a n ethos of legal-
ism in which tremendous personal risks are taken o n behalf of institutional
ideals, such as the independence of high courts and the protection and ex-
tension of civil liberties. From Sarats anticapital punishment lawyers, who
struggle endlessly for marginal returns, to Levs bold Malaysian and Indone-
sian advocates, who risk personal safety as well as professional returns, these
volumes underline the essential humanity of many lawyers for whom n o law
school, market circumstance, or client will expunge their enduring commit-
ment to a legal order in which rights are institutionalized and protected.
They are authentically civic professionals.
Yet, the story is much more interesting than this, for as Shamir and
Lev well exemplify, motivations are a complex amalgam of orientations,
differing in their mix by lawyer, career phase, issue, and political and eco-
nomic context. Thus, it is true that many lawyers pressing energetically for
the independence of higher courts will reap material, status, and jurisdic-
tional benefits. It is true that alternative lawyers in Latin America and
cause lawyers in Palestine will reap international prestige for the defense of
rights they have sown. It is true that Sarats capital punishment lawyers will
obtain some psychic income from valiant persistence in the face of daunting
odds. And it is true, it seems, that a Palestinian lawyer who combines fee-
for-service with defense of rights has longer staying power as a cause lawyer
than one who champions causes without regard to daily bread.
Thus, we move to a new phase of sophistication in the understanding
of motivational wellsprings that invigorate lawyers political action. Good
outcomes for bad reasons, pure motives with impure results, mutually sup-
porting material and ideal interests, noble motives for redoubtable institu-
tions-all these compel observers of legal professions to burrow deeply and
discover what shapes motivations, what institutional milieus sustain and
transform ideals and interests, how stable they are over the professional life
course, how adaptable are they to contextual exigencies, and how vulnera-
ble they are to insidious or insistent assaults.
The Institutional Theory of Politics
The defining centrality of the courts constitutes the central feature of

lawyers concept of liberalism. The many faces of their action to create and
sustain such institutional integrity reveal that this is a political battle t o
achieve and a mission of vigilance to sustain. Elite and cause lawyers range
widely in their capacity to construct and defend liberal institutional struc-
tures that include setting parameters for political competition, configuring
power within legislatures, equilibrating legislative power in relation to exec-
utive and judicial power, limiting executive power, enhancing judicial con-
straints on executive power, and creating and protecting independent
courts. Cause lawyers do so principally as a shield, not a sword, for we
have seen that lawyers politics and efficacy become increasingly attenuated
as they seek to extend substantive, social, economic, and political rights.
The struggle for the integrity of courts as, for instance, in Malaysia and
Indonesia, symbolizes in yet another setting what appears to be true univer-
sally-that one of the great dramas of liberalism is the autonomy of influen-
tial courts. Arguably it is the noblest, most politically consequential form of
professional collective action, for virtually all other effective professional
action depends on it. And even in the absence of such autonomy, as in
several Latin American cases, nevertheless it remains an ideal ultimately to
be implemented.
This is not to reject the value of Shamirs argument that courts are also
arenas for jurisdictional conflict and intraprofessional rivalry and competi-
tion. Indeed, courts concentrate such conflict, for the stakes are far higher
for political leaders than even for the professionals that staff and appear
before them. An adequate account of the conditions under which lawyers
will mobilize o n behalf of the institutional autonomy of the courts must be
incorporated into a theory of lawyers. A t the same time, we must beware of
trivializing the significance of court autonomy by reducing its explanation
to monochromatic theories of motivation and action. Indeed, I would argue
more generally that the plethora of studies that occur o n courts in many
countries-studies of judicial recruitment, judicial ethics, court financing,
court management, and discretion-should all be assimilated to this grand
theme-the institutional rationalization of the judiciary.15
Thus institutional autonomy and motivation are integrally connected.
It must not be supposed that independent courts depend o n what will never
happen, namely pure motivations that spring from aesthetics, political
ideology, legal ideology, and statespersonship, though for many lawyers,
such motives can be found, and they are very potent and durable. The por-
trait here generates a more interesting dynamic-the interplay of jurisdic-
15. See Halliday 1987, chap. 10, pp. 164-74, where I seek to integrate these diverse
aspects of lawyers into a coherent theory of legal rationalization in the courts.
tional control, status politics, economic benefit alongside the ideological,

aesthetic, altruistic, and civic motivations noted earlier.16 That is, the cen-
tral institutional issue of lawyers and political liberalism depends o n an
amalgam of sacred and profane motivations, and those institutions, in turn,
cultivate and nurture constructive and other-regarding dispositions.
A Theory of Professional Mobilization
In turn, the institutional autonomy of the courts relies on collective

mobilization of legal professionals. C a n lawyers, frequently divided amongst
themselves, combine to present a common front? Where do lawyers find
allies within their own country? And what opportunities are offered by al-
lies across national frontiers?
For the most part, these volumes treat lawyers not acting o n behalf of
the profession as a whole, but united within some fraction of the profession
for a particularistic end-that is, one not necessarily shared by the entire
profession. Hence several of the cause-lawyering essays point to the value of
solidary networks for cause lawyers or their membership in professional as-
sociations committed to particularistic causes. In several instances, cause
lawyers find common cause with groups outside the profession-political
groups, NGOs-where the interests span occupations. In few instances-
Ellmans South African case is one example-do cause lawyers find them-
selves united with the elite of the bar or aligned with some of its notables.
W e shall return to this divide between the center and periphery below.
T h e internal differentiation of legal professions in rule-of-law nations
presents both an opportunity and impediment to collective action. Oddly
enough, it is easier for certain fractions of the profession to mobilize,
whether they be elites or fringe groups, since consensus o n fractional inter-
ests or causes can be more readily forged, and the logistics of mobilization
present less formidable a barrier. Shamirs ABA elite and various marginal
groups of cause lawyers show a greater capacity to act o n common interests
than any private profession as a whole. There are means by which elites
who claim t o represent the entire profession will act o n its behalf, but that is
possible only under limited circumstances. Where issues are narrowly and
16. My work with Carruthers (Halliday and Carruthers 1997) shows that greater inde-
pendence of the courts may be advocated for powerful commercial interests, such as the bank-
ing industry, in order to ensure commercial predictability in rulings of the courts. While this
finding emerged from a study of the bankruptcy system in the United States, it is now clear
that major global economic institutions and groups, such as the World Bank and the G7
group of leading industrial nations, actively advocate the independence of courts as an institu-
tional buttress of an effective system of national creditor-debtor law, and as one key element
of the creditworthiness of nations in search of international investment. While these motiva-
tions have relatively little to do directly with liberal-legal ideals, the result, nonetheless, fully
vindicates those ideals, for commercial and financial interests effectively champion an insti-
tutional ideal that has far-reaching consequences for political freedom.
legalistically defined, where debate occurs outside the public domain, where
issues are not politicized, it may be possible for elites to take upon them-
selves the mantle of the entire profession without internal dissent.
More often, however, in contemporary times, and with a profusion of
professional associations representing every stripe of legal difference (race,
gender, political orientation, specialty, court, type of client, religion), law-
yers speak less in unison than in a cacophony of competing voices. In prac-
tice, many professionals forge alliances not only with other professional
groups but with sympathetic interest groups outside the profession, as
Shamir finds in the New Deal politics. Therein lies a path of coalition poli-
tics, but it potentially comes at a high price, as lawyers compromise their
distinctively formalist claims to an independent authority in favor of a sub-
stantive politics that leaves them vulnerable t o conventional interest group
competition.
Nevertheless, the books reviewed here and the historical studies in the
Halliday and Karpik volume (1997) indicate that there are two necessary
conditions for effective mobilization o n behalf of liberal values: (1) that a
profession itself is relatively united on core values of legal formality and
procedure and (2) that a profession can forge effective alliances with the
judiciary .
In nations where the rule of law is not already or robustly established, a
more complex situation arises. There cause lawyers most often depend heav-
ily o n external resources. This is not always the case, however, for the Bra-
zilian Bar Association and the Malaysian Bar Council both stood relatively
alone in the face of hostile governments. Yet the Brazilian bar elite found
an ally in the other principal element of civil society, the church, and its
members were deeply embedded in family and political networks that gave
them ready access to power. Most often, however, fledgling contemporary
movements on behalf of liberalism have depended substantially on resources
from outside the country-funding from international agencies and govern-
ments, legitimation from international law societies, regional networks of
like-minded practitioners, and access to the media. Funds, legitimation, and
media resources can be found within countries and often to substantial ef-
fect, but in the face of hostile political authorities, passive or domesticated
courts, and a pacifist legal culture, these are unlikely to be sufficient.
B. A Political Division of Labor
These two books point to a creative tension within the legal profession
that is frequently missed by scholars in their excessive emphasis o n divisive-
ness within professions. The elite of a legal profession is entrenched in its
occupational power, secure in its alliances with the peak of the practicing
profession and the judiciary, drawn often from a larger ruling or upper
middle class, and thus is integrated in some measure into a national power
structure. That elite purports to speak on behalf of the entire profession.
However, as we shall presently observe, the legal elite justifies its distinctive
standing in the wider political firmament o n a basis not available to other
political and economic institutions, namely, the ideology or jurisprudence of
the rule of law, which asserts independence and autonomy as a bedrock of
the liberal-legal political order. That is, legal elites, and the associations
they lead, can lay a transcendent claim to their power, for it is inseparable,
in their view, from the viability of the entire liberal-legal political order.
Law, courts, lawyers, and constitutions are an indivisible whole, and with-
out them no liberal legal order is possible. Essentially this claim is conceded,
despite much criticism of liberal legalisms division of law and politics, by a
number of the cause-lawyering contributors.
At the periphery of legal professions in many countries lie the cause
lawyers-those practitioners committed to an elision of the distinction be-
tween law and politics, and who are frequently at odds with the great center
of the profession, which commonly resists the expansion of social, eco-
nomic, and political rights at the behest of lawyers. Thus the elite of the bar
becomes not only a foil, but frequently an obstacle, to the realization of the
substantive rights expansively advocated by cause lawyers. It is only when
the so-called cause lawyers have as their cause the autonomy of law itself-
that is, the institutional construction of judicial autonomy, procedural pro-
tections, and formal civil rights-that the two converge.
Yet several ironies inhere in these relations between centers and pe-
ripheries of legal professions. The cause-lawyering volume combines two
kinds of causes, depending o n whether or not a liberal-legal order has al-
ready been established in a nation. Where the rule of law is not established,
the cause lawyers seem intent o n building a formalist institutional structure
in which lawyers and law are insulated from political encroachment. Their
project, in other words, is the creation of the very distinction between law
and politics, substantive and formal justice, that other parts of this project
seek to collapse. Where the rule of law is established, cause lawyers have the
luxury of taking its fundamental protections-which rest o n the divisibility
of law and politics-as a playing field o n which to attack that same divisi-
bility in the name of social and economic rights.
Moreover, an odd power is realized by holding in tension the stolid
center of the bar, which is frequently quite reactionary, conservative, and
slow moving, with its more fractious, innovative, querulous peripheries,
where most cause lawyers reside. The very stolidity that so frustrates the
advocates of worthy causes serves also t o frustrate the enemies of liberalism
and the incursions of authoritarian political will. An institutionalized au-
tonomy, albeit safeguarded by a self-protective elite, frequently will serve as
one of those critical checks and balances that holds unbridled executive
power at bay. A t the same time, the dynamism, energy, and dedication to a
broader vision that comes from the cause-lawyering periphery serves both to
foster adaptation (eventually) by the center of the profession, and thus pre-
serve its viability, and to compel the profession to articulate its core values.
Insofar as they are deviants, therefore, the cause lawyers serve much as devi-
ants in any social system-they help define the boundaries of the social
field and thus its very identity.
The center-periphery tension, therefore, can take o n symbiotic form
where synergies and conflicts and ideological struggles lock the various ele-
ments of the profession together in a continuing conversation about the
appropriate balance of established and insurgent elements of the law.
Neither can do without the other. Centers cannot pretend that core ele-
ments of formal law and rational legal institutions will not need to respond
to the claims of substantive justice; peripheries cannot pretend that the col-
lapse of law into politics will serve the expansion of rights in the long term.
Dare we say that each is therefore functional for the other?
If we draw this discussion onto the wider canvas of lawyers and the rise
of Western political liberalism, the analytical and presentist distinction be-
tween centers (which separate law and politics) and the cause peripheries
(which seek to collapse them), can be recast, in the broadest terms, as a
long-term historical movement. This movement may take linear or even
cyclical forms, but it nonetheless describes long-term political-legal
changes. Two or three models come to mind: (1) T h e classic model, repre-
sented by English and French law, for instance, features a long period of
institutional and doctrinal development that lasts from the middle ages into
the seventeenth and eighteenth centuries and results in the establishment
of an independent legal order that champions autonomous law; once estab-
lished, cause lawyers operate in its shadow, both dependent upon it and
intent o n adaptation of it. (2) An insurgent model, represented by Indone-
sia, where the cause is the establishment of a rule-of-law regime in the first
instance, with the most basic of civil and procedural protections. There is a
third model, but its trajectory is much more ambiguous-that of the cause
lawyers in illiberal regimes whose causes are less those of civil than of eco-
nomic and social rights. This takes us t o another conundrum of lawyers
political mobilization o n behalf of liberalism.
C. Lawyers Distinctive Politics
The cause-lawyering framework has a strange irony, for it veers toward

a self-defeating program that ends ultimately in the loss of that which is
most valuable to lawyers and liberalism. Lawyers legitimately lay claim to an
authority that transcends politics as usual. Insofar as lawyers mobilize on
platforms and through a discourse of formalism, procedural rights, and
technical defenses or advances of their autonomous legal regimes, they place

themselves above the turmoil of conventional power politics. Their access
to reasoning based o n such sacred standards as constitutions, Bills of Rights,
common law, natural law, and the like, place them beyond the reach of
fractious interest groups, political parries, and other political actors. Just as a
Supreme Court can strike down substantive legislation o n constitutional
grounds, so, too, lawyers knowledge and techniques can reach virtually any
issue in society and be mobilized-on strictly technical grounds-in a dis-
tinctively lawyerly manner. Lawyers show extraordinary facility in con-
verting substantive issues into technical approaches and ultimately into
political influence, though this move works only in particularly conducive
circumstances. Those circumstances make clear that the proclivity of the
profession at large to act o n certain issues is restricted, and their efficacy
when they do act is limited. Those limits frequently coincide with substan-
tive rights. Or, put another way, substantive rights represent the limits of
lawyers technical politics of converting technical to moral authority-
though it must be said that their reach is substantially greater than is usually
recognized.
If lawyers in many countries can mobilize in ways that place them
above the fray, it is puzzling, to say the least, why critics, commentators, and
advocates would trade this privileged position for a stance that makes them
indistinguishable from any other competing interest group. Legal professions
and cause lawyers have then a kind of Hobsons choice. If they stay above
politics as usual and rely o n the warrants of formalism, technical expertise,
proceduralism, and the like, they may exert an influence out of proportion
to their size, material, and political resources, but that influence can be
deployed on a relatively narrow front. If they descend into the political
melee in which they are simply another interest group arguing for its own
particularistic ends, they can reach the full range of substantive issues faced
by a society, but with much lower probability of prevailing.
Furthermore, the profession itself cannot hope t o combine both of
these, for in acting in the second political mode, its authority is under-
mined when it seeks to act i n the first legalistic mode. It is here that
symbiosis between the center and periphery once again comes to a solution.
On great issues of legal autonomy, defense of the rule of law, judicial integ-
rity, constitutional fidelity, and the like, the core of the profession, repre-
sented by its political elites, leading associations, and other major
institutions can represent the profession writ large. Its actual solidarity, or
the symbolic appearance of solidarity, gives its actions great force. On many
other substantive issues of politics, rights, and ideology, however, smaller
fringe groups and individuals, clearly distinguishable from the center of the
profession may effect change, heighten the quality of civic debate, improve
the formulation of public policy, and advance the scope of substantive law
and regulations. So long as their substantive lawyers politics do not subvert

the technical authority of the profession at large, that is, so long as they
remain relatively marginal and are perceived to be such, they diversify the
impact of lawyers influence o n politics without subverting what are argua-
bly the most important rights lawyers can protect in modern or early mod-
ern societies.
Thus, at their best, cause lawyers enrich politics, stimulate their profes-
sion, and advance a public good. A t their worst, they delegitimate one of
the few institutions that stands between unbridled executive power and a
vulnerable citizenry.
*******
Politics matter. The complex ways in which they matter make these
two volumes such a valuable addition to a growing body of scholarship o n
lawyers that has a new problematique-the fortunes of political liberalism.
That political liberalism is one of the great historic projects of the past two
centuries cannot be gainsaid. That it remains an ideal of struggle through-
out the contemporary world seems manifest. That lawyers should be em-
broiled in movements over the longue durke that valorize independent
courts, judges, and norms of political practice seems unsurprising. Yet schol-
ars have only recently begun to juxtapose the past of the profession with its
present and to hold in tension the core of professions with their peripheries,
to place in counterpoint economic interests and political engagement. The
enrichment of the intellectual agenda and of the modes of professional ac-
tion that are represented by these volumes go a significant distance toward
an account of legal professions that not only satisfies scholars but ennobles
civic professionalism.
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Politics and Civic Professionalism: Legal Elites and Cause Lawyers

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REVIEW SECTION SYMPOSIUM

Lawyers and Politics

Politics and Civic Professionalism:

RONENSHAMIR. Managing Legal Uncertainty: Elite Lawyers in the New Deal.

Terence C. Halliday is a senior research fellow, American Bar Foundation, and

0 1999 American Bar Foundation.

engagement of lawyers in regime transitions and fundamental political

1. See the accompanying review of this volume by Stuart Scheingold.

autonomy of law. Each volume spotlights two poles of a creative tension o n

Second, a theory of professional collective action in relation to polit-

I. ELITE LAWYERS AND THE POLITICS OF LEGAL

Shamirs Managing Legal Uncertainty treats lawyers politics at a turning

Deal differently. A market control or economic monopoly theory, exempli-

Elite lawyers, whose positional standing spanned the apex of commer-

site where lawyers could demonstrate a capacity for civic professionalism,

society. A new administrative state would threaten the established hierar-

T h e New Deal opened up a new set of opportunities for legal academ-

text, a reference guide to be reinterpreted or sidestepped), and their appeal

making. Put in a way more consistent with Bourdieus theory of symbolic

B. An Institutional Theory of Legal Autonomy

institutions. A signal attribute of lawyers-not all lawyers, but their more

structures. President Roosevelts provocative scheme t o pack an expanded

Herein lies a well-known conundrum of liberalism. On the one side, it

Structural Bases of Influence

How do lawyers mobilize? The organizational expressions of collective

Discursive Bases of Influence

Structural capacities to mobilize or structural inhibitors to collective

technical-legal issue. By this professional sleight of hand, they can stand

11. CAUSE LAWYERS: STUDIES I N AMBIVALENCE

The engagement of lawyers with liberalism, however, may be ap-

cacious. There is tremendous value in bringing this variety of research into a

A. What Motivates Cause Lawyers?

Three chapters open a window onto a much richer tapestry of lawyers

Menkel-Meadow (pp. 3 1-68) helpfully calls accounts of lawyers back

inextricably intertwined with lawyers own moral saving behavior.

though this, too, is largely an article of faith. The origins of liberal-oriented

Menkel-Meadows concept of principled altruism creates a bridge to

Empathetic Material Values

W e are indebted to Shamir and Chinski (pp. 227-60), however, for

Consistent with the theory Shamir develops in Managing Legal Uncer-

B. The Institutional Bases of Political Liberalism

Let us begin by examining, first, essays in Cause Lawyering that explic-

Liberalisms Institutional Superstructure

Richard Abel brings his analytical powers to political structures in

advance their ideals in turn depends o n the construction and protection of

Aspirations to Liberalisms Infrastructure

Several essays instantiate Abels analysis, particularly in countries

marginal lawyers or legal groups who espoused a particular view of politics,

The judiciary was structured as a bureaucratic organization, where

Neither countrys constitutions endowed the judiciary with powers to

regimes. Combined with a positivist jurisprudence and the absence of

Within rule-of-law states, mobilization through the courts on behalf of

In nations where courts have not attained a measure of autonomy,

have written numerous academic articles and books, granted countless

111. CIVIC PROFESSIONALISM IN THEORIES OF

A. Three Elements in a Theory of Lawyers and Political

I have postulated that a theory of lawyers political action, especially as

-4 Motivational Theory of Action

ism, mobilized professional elites in defense of formal and procedural

The Institutional Theory of Politics

The defining centrality of the courts constitutes the central feature of

tional control, status politics, economic benefit alongside the ideological,

A Theory of Professional Mobilization