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Tuesday, November 18, 2008

The Ethics of Popular Constitutionalism

Suppose you -- as constitutionally-sensitive activist -- think that California's gay marriage ban violates the federal Constitution's protection of "equal protection of the laws" -- and think that Romer v. Evans is a close enough precedent to make your view plausible in the eyes of doctrinalists.  Yet you have no faith that the current Supreme Court of the United States will agree with you.  Indeed, you fear prosecuting that claim because of the very real possibility that you will lose at the Supreme Court and hurt your cause quite badly in the process.  Suppose you also think that Prop 8 does not violate the California state constitution (for the state constitution has just been amended).  Indeed, suppose you think the claim that the state constitution has been "revised" borders on the trivial.  Yet you recognize that you might actually win your argument on the "revision" claim.   Are there any ethical limitations surrounding constitutional argument making that would disable you from making what you think is a nearly trivial argument that actually has a chance for success even though it can get you a substantive result you think is demanded by the federal Constitution but which you aren't willing to try for fear of losing big?

Posted by Ethan Leib on November 18, 2008 at 12:15 PM in Constitutional thoughts | Permalink


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Ethan, the "you" part was not meant to be personal, since your hypo uses a generic pronoun. But I think you are placing an emphasis on the word "trivial" here that is awfully hard to place. To make it simply, you assume that there is (1) an objective standard of whether an argument is trivial, and (2) the activist/lawyer/client can think that he has better information about that objective truth than the court does.

I think it is perfectly respectable to argue against (1), though that does reduce the argument to "the law is whatever the courts say it is," or "the Supreme Court is infalliable because it is final," which is rather controversial I am sure. But even if you believe that there is an objective "law", and granted that people often think they know better than the judges, you are taking it a step rather further--the advocate is so sure that he are right and the judges are wrong that it might be unethical for him to take advantage of the judges' ignorance. Believing that you are so much smarter than the judges that you are taking advantage of their stupidity does not sound humble to me.

Posted by: TJ | Nov 20, 2008 4:41:50 AM

Jack's point is a good one, in that public interest and impact lawyers often have far more control over the very existence of the client (e.g.,the class) and what relief is sought. The original post doesn't mention a class. I know that at least some of the Prop 8 challenges are using natural person clients.

Even if you're bringing a class action, you'd have discussions with the class reps, co-counsel (if any), etc., about the claims that are and aren't being brought. And note that even with a class, the lawyer does not have total freedom to decide what claims to bring or not bring. We recently had a malpractice case in California against one of our best class action firms, on the theory that they dropped a claim to the detriment of the class. The court of appeal permitted the claim to proceed at the pleading stage.

Finally, Jack mentions the possibility of the lawyer suing on her own behalf -- which certainly solves the dilemma.

Posted by: John Steele | Nov 19, 2008 7:29:06 AM

I do not believe that the dividing line is so clear between lawyer and client in this context. The activist may in fact be a lawyer, or an employee, of the public interest legal firm trying the case, as one case in a series of cases that comprise a nationwide litigation strategy. The clients in the nationwide series of cases may have been recruited by the public interest legal firm because they had the right “look” for a test case. Such clients may not truly be masters of their own complaints; they may simply be deferring to their activist lawyers. In the sense that they are not truly independent of their lawyers, they are not truly clients; rather, they are technical justifications to bring the litigation in courts that refuse to render advisory opinions. For that reason, the ethical dilemma Prof Leib posits is real: if your client provides no pushback or moral constraint (because you are your own client), do you have any duty as an officer of the court not to attempt manipulation of the legal system by avoiding the bringing of meritorious but losing legal claims in one forum in favor of bringing bogus but politically opportune serve-ups to ideologically favorable allies another forum? Class action attorneys, I think, are faced with this dilemma whenever they forum-shop. The success of the tort reform movement in this country suggests that the public at-large finds this kind of legalistic craftiness to be unfair. Whether that renders it a violation of actual ethical codes is another matter, but the perception of unfairness would be devastating to a judicial decision to overturn a ballot initiative that amended a state constitution to correct an erroneous judicial decision by popular vote. At what point do lawyers cede their ability to persuade elite public officials to democratic deliberation by voters?

Posted by: Jack Krevins | Nov 19, 2008 2:45:35 AM

It may help to break out two issues: (1) whether the claim is so weak as to be unethical to assert, and (2) who decides which claims to bring (the lawyer or the client).

First, the baseline ethical standard for bringing claims is usually "[not] frivolous," rather than "colorable." But state or federal codes of civil procedure can provide their own standards, which would then be binding on the lawyering litigating the matter.

One of the difficulties with analyzing the hypo is that the lawyer reasonably believes that the claim has a decent chance of succeeding, which would seem to preclude the claim from being "frivolous" under Model Rule 3.1, yet the hypothetical lawyer nonetheless thinks the claim is "nearly trivial." The lawyer is "of two minds." Having re-read MR 3.1 and comments, it seems to me that the rule is objectively based and the lawyer's belief in reasonable prospect for success mean that the claim isn't frivolous, even if the lawyer thinks the claim is crazy. (I haven't done new research on the question of the lawyer of two minds, and if someone has cases on that I'd appreciate learning the cites.)

As for the second issue, the client, not the lawyer, determines the lawful objectives, while the lawyer consults with the client about tactics (or "means"). The line between objectives and tactics is usually, but not always, clear. Quite often, but not always, the framing of the claims is a tactic.

My intuition suggests that this is the unusual case where the framing of the claims is at least in the gray area between objective and tactic, and probably is closer to an objective. Vindication of a federal constitutional claim can be a fundamental objective of the client. Under this analysis, it's the client's choice. (By way of comparison, think about a disgruntled client whose objective is to win money from her former lawyer. The decision about framing claims -- malpractice, breach of written contract, breach of fiduciary duty, disgorgement, etc. -- is probably just tactical.)

In the hypothetical, a lot would turn on how the client framed his/her objectives. But even if the decision about which claims to bring were deemed merely a tactic, MR 1.2 requires the lawyer to consult with client. Presumably the lawyer would discuss the pros and cons of the two claims. If the client felt strongly about proceeding on a claim that the lawyer felt was ill-advised, the lawyer could withdraw from the representation.

Posted by: John Steele | Nov 19, 2008 12:00:40 AM

As you can imagine, there is a lot of media attention surrounding this lawsuit -- and many con law/legislation profs are part of the conversation being told through reporters. It is sometimes hard to make one's views clear through the edits....

Posted by: Ethan Leib | Nov 18, 2008 5:26:53 PM


Now that IS an interesting question in lots of ways, and yes, I misunderstood you.

One way to practically resolve it is to say this: "I believe there is a reasonably strong case that the state supreme court will hold that Prop 8 is a revision." You need not advocate the position in order to accord it strength.

Also, I don't really see any problem with a law professor or activist being a legal realist and treating the case accordingly. But my own inclination would be to state my view straightforwardly (or not at all).

Posted by: Hillel Levin | Nov 18, 2008 5:00:15 PM

TJ: First of all, it's a hypo. Not sure how that implicates my humility. I personally view the revision argument to be a loser, though I also think it is trivial and downright troublesome for the entire system of direct democracy in California (and for many that is a good thing too -- not for me). And it is true that I also believe that Prop 8 violates the federal Constitution. But this isn't about my personal views. The point is that plenty of people could have a good faith view that an argument borders on the trivial but might actually win the day with a court -- and be expected to make such an argument for her client. Is a person never free to think trivial a decisional ground that a court offers? That is humility to the point of docility.

Hillel: Maybe you missed my point. I'm think of the person considering the argument to be the client (the activist rather than the zealous advocate for the activist) or, say, a professor talking to the media. Yes, lawyers get to lie as part of their job. I was hoping for a more subtle way of thinking about it, since I want to suggest the question not for the professional conduct of lawyers, per se, but for the professional conduct of citizen interpreters of our constitutions. Perhaps that is all too abstract, alas, especially among lawyers!

Posted by: Ethan Leib | Nov 18, 2008 4:01:08 PM


I think you and I are getting at a similar thing here (if the argument is colorable, you have to make it; and if a court might find it persuasive, then it is colorable). But I take issue with your notion that the problem here is that Ethan (or the proposed attorney facing this quandary) has mistakenly assumed himself to be more "gifted" than the California Supreme Court.

This case isn't going to be won on whose view of the California Constitution is more gifted, brilliant, true, or right. That is, you might assume that the California Supreme Court is not intellectually gifted, and still make the argument that you find unpersuasive. It doesn't matter how brilliant they are or how "true" the argument is; it only matters whether the court may find it persuasive.

Ethan doesn't have to have a shred of humility in order to make an argument that he finds unpersuasive!

Posted by: Hillel Levin | Nov 18, 2008 3:21:05 PM

A lawyer can--indeed, must--make arguments to the court that she does not personally find persuasive, so long as they are colorable. And if the lawyer thinks that the court may find them persuasive, then they are certainly colorable.

The lawyer who fails to make those arguments has not performed his duty to the client (unless he convinces the client that it is in the client's interest not to make those arguments, e.g. for tactical or strategic reasons).

What's the problem?

Posted by: Hillel Levin | Nov 18, 2008 3:14:42 PM

Ethan, a bit of humility here solves your problem. How can you think that the claim borders on the trivial yet has a reasonable chance of winning? It must be because you think you are much more gifted than the judges on the Cal. Supreme Court. But assume that you are not more gifted than the judges (a good assumption for most advocates), and your problem disappears.

Posted by: TJ | Nov 18, 2008 3:06:35 PM

In your hypothetical, you pose two tactical choices, both of which have legal merit, though one, the equal protection challenge in the Supreme Court, achieves the client's goals in a sweeping, substantive way. The other choice, seeking to nullify Proposition 8 because of a technical deficiency in how the amendment was ratified, achieves the client's goal of authorizing gay marriage in California in a narrow, less satisfying way. I don't perceive there to be any ethical problem, from the perspective of a lawyer's professional ethics, in either choice. Both arguments are grounded in a good faith basis that the law permits the desired result.

That being the posited case, then the only debate is the tactical one, not an ethical one, about which challenge is most likely to succeed in acheiving short term (nullification of Proposition 8) or long term (confirming a Constitutional right to gay marriage) goals.

That isn't to say that a lawyer can't have personal, moral reasons for advancing one goal or the other. For example, a lawyer might think the prospects for long term success for the goal of recognizing gay marriage are best enhanced by engendering popular support for the idea. That lawyer may choose to forego both options and choose to have Proposition 8 overruled by a follow up popular referendum.

Finally, if a lawyer determined, after investigating both litigation options, that either were untenable legally (i.e., neither well-founded in existing law nor achievable by a good faith argument that the law should be changed), then it would be unethical for a lawyer to pursue that option. By the same token, if a lawyer thought these litigation options were tenable, it would be unethical for the lawyer to fail to advise his client of those options and their relative merits and demerits as best she understood them.

Posted by: Cullen | Nov 18, 2008 2:04:10 PM

Assuming in this case that the two arguments are indeed arguments (that is, neither is in itself incoherent, neither believed by the rhetor to be wrong, and neither based on clearly bad evidence, etc.), then the choice here is a rhetorical one. That is, if the one making the argument is only choosing between what he believes to be a "trivial" argument and a "more cogent" one, he is free to make the one he believes the audience will find more persuasive. After all, the court may--for legitimate reasons that the rhetor does not know or has not considered--find the "trivial" argument actually quite relevant and cogent.

In other words, all things being equal, one is not compelled to make a losing argument just because he thinks it to be a better one.

Posted by: Joseph | Nov 18, 2008 1:24:43 PM

What sort of ethical limitations do you posit here?

Posted by: Jonathan | Nov 18, 2008 12:29:06 PM

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