Divided We Litigate: Addressing Disputes among Group Members and Lawyers in Civil Rights Campaigns

Abstract

Should political processes control the kinds of litigation a private attorney general can institute?' Groups are messy. They are, by definition, comprised of many individuals and thus encompass a range of desires and agendas. Any group must generate ways to reach decisions among these competing possibilities. Typically, groups develop formal and informal mechanisms to define their goals and strategies. Consider a law school faculty. The faculty is an identifiable group of individuals that has a set of formal decisionmaking processes for the various types of choices it must make. A faculty votes on whom to admit to the school, what courses will be offered, who will teach these courses, and upon whom degrees will be conferred. Most faculties accomplish these decisions by some form of democratic process (majority or supermajority votes following participatory, dialogic meetings) or by some form of expertise (delegation to committees that study issues in depth and provide recommendations to, or simply make decisions for, the group). It would be rare to find a faculty

Art, not a science: How legal impact organizations identify community need

“…This discussion of listening versus actions speaks directly to the literature on the gap between agendas and community need (Carpenter, 2014; NeJaime, 2003; Rubenstein, 1997; Strolovitch, 2007) as well as the literature on accountability (Bell Jr., 1976; Cummings, 2018). These studies and critiques of movement organizations often find a lack of attention and resources devoted to issues that would aid the most disadvantaged subgroups within a given movement (Carpenter, 2014; Spade, 2015; Vaid, 2012).…”

“…For example, Rubenstein (1997) and NeJaime (2003) have both called for more democratic and pluralistic models of decision making. In particular, NeJaime (2003, p. 561) calls for “polyvocal gay‐based advocacy” where different groups ranging from moderate to radical exist together, “exchanging and sharing rhetorical, financial, and political strength.” Such a model, the argument goes, would enhance representation by having many groups working on different issues, rather than one or two larger organizations with unified strategies and priorities.…”

“…This is also an often‐heard criticism within the LGBTQ movement regarding legal and non‐legal groups (Arkles et al, 2010; Carpenter, 2014; Rubenstein, 1997; Vaid, 1995; Willse & Spade, 2005). Levitsky (2006, p. 156) found activists in Chicago who felt that legal organizations “hijacked” the movement's agenda, with activist and grassroots organizations having to compete for attention and resources against highly visible litigation.…”

“…Scholars of social movement organizations have also demonstrated that some organizations unintentionally set agendas that favor advantaged over disadvantaged subgroups (Strolovitch, 2007). In particular, the lesbian, gay, bisexual, transgender, and queer (LGBTQ) movement has long struggled with the issues of movement co‐option and agenda setting, especially around lawyering (Carpenter, 2014; Leachman, 2014; Levitsky, 2006; NeJaime, 2003; Rubenstein, 1997). For example, marriage equality is often perceived as an issue that was prioritized over needs thought to have greater benefit for marginalized subgroups, like housing and healthcare (Acey et al, 2006; Ettelbrick, 1999; Polikoff, 1993; Vaid, 1995).…”

You Know the Type: Categories of Cause Lawyering

“…Derrick Bell famously addressed the issue in his article Serving Two Masters (Bell 1976). The matter continues to occupy practitioners and scholars (Bell 1976;Polikoff 1996;Rubenstein 1997). Like many of the dilemmas central to the cause lawyering enterprise, the question of who a lawyer represents is not unique to activist attorneys.…”