Government lawyer as cause lawyer: A study of three high profile government lawsuits

Abstract

Over the past decade a broad and deep literature has developed mapping the contours of the work of cause lawyers: those lawyers who attempt to use the law to achieve social change objectives. However, very little of that literature addresses the work of government lawyers. At first blush, this makes perfect sense. After all, when they defend government officials charged with wrongdoing, or statutes and regulations charged with illegality, government lawyers are the ultimate representatives of the status quo. However, in other contexts, government lawyers may initiate cases that have social change objectives. Indeed, some of these cases bear a significant resemblance to first generation cause lawyering campaigns. Thus, one of the objectives of this paper is to consider whether it is appropriate to view government lawyers in certain contexts as cause lawyers. If it is appropriate to view government lawyers as cause lawyers, a second question arises regarding the effectiveness of such government lawyers. Another literature, sometimes overlapping with that mentioned above, questions the effectiveness of cause lawyers in achieving their social change objectives. Is it the case that some of the factors that result in an uneasy fit for government lawyers within the category of cause lawyers nonetheless allow government lawyers to transcend some of the limits on the effectiveness of cause lawyers generally? The methodology used to answer these questions will be familiar to readers of the cause lawyering literature: the case study. More specifically, the paper will seek to answer the two questions presented through an analysis of three high profile government cases: Mississippi Attorney General Mike Moore's lawsuit against the tobacco industry, the City of Chicago's lawsuit against the gun industry, and former New York Attorney General Eliot Spitzer's legal action against financial services firm Merrill Lynch regarding conflicts of interest in its provision of investment research analysis information. This article reaches the conclusion, first, that government legal campaigns with overt social change objectives should be considered a form of "elite/vanguard" cause lawyering, as described by political science Professor Thomas Hilbink. Second, the article concludes that even though the position of government lawyers helps them to transcend some of the constraints that limit the effectiveness of elite/vanguard cause lawyering, such government lawyers nonetheless must grapple with many of the same constraints that have historically bedeviled non-governmental cause lawyers.

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