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Thursday, May 28, 2009

More on the Olson-Boies Lawsuit: Responses to Comments

I appreciate the responses to my original post on the Olson-Boies lawsuit.  I tried to post the following comments in reply but for some reason I got rejected (rejected by my own post -- hah!)  Apologies for using the post format as a reply mechanism.  But here goes:

1. Sam makes an excellent point when he offers an alternative, or maybe additional, explanation for what might be going on in this case.  As I read it, Sam's post raises the issue of lawyers, like Olson and Boies, who do both a lot of cause lawyering and a lot of paid advocacy.  In particular, Olson's comments at the press conference suggest that he has adopted his clients' position as his own, going farther, I think, than most lawyers do when they're simply paid advocates.  In a real way he seems to be adopting the position as his own.  That takes me back to my question about lawyers "interfering" (if that's what it is) in cause lawyers' long-term litigation plans.

2. I understand Hillel's argument, which is why I framed my post as asking the question rather than stating a view.  Of course it should be clear from the post that I do have a strong view about the wisdom of bringing this case, and about the hubris (if that's what it is) of a high-profile litigator who enters an area he's never engaged with before and brings something akin to a bet-the-cause lawsuit (see point 5, below).  But as a matter of the professional judgment underlying this decision, well, that I don't know.  Boies and Olson are sharp lawyers, to say the least.  As Hillel says, they're certainly capable of making their own strategic calculations.  So what's the argument for deferring?  Maybe professional respect: if they really care about the cause they're advocating I could see them deferring to the people whose judgments have been pretty good up to now, especially when the costs of a loss are high. Those advocates have lived with this issue for years, and it seems to me that both their investment in ultimate success and their obvious continued diligence in getting there (i.e., it's not like they are shirking or getting timid) warrants some deference to their judgment that more building blocks have to be put in place before making the grab for final victory.  (At the very least Olson and Boies could have done them the decency of either consulting or even just warning them, which it doesn't seem like they did, at least from the news reports -- though I could easily be wrong about that.  But if they didn't that just heightens the sense that they're being both reckless and disrepectful, neither of which heightens my confidence in their refusal to defer.)

I'll be the first to admit that this argument doesn't fully persuade.  Maybe it doesn't even come close.  Ultimately, maybe I can't get over the hump of trusting Ted Olson's good faith, and I'm hiding that distrust behind an institutional deference argument.  Or maybe I'm just someone who values procedure, chains of authority and respect for people who have proved themselves.  On those attitudinal questions I tend to be on the Burkean conservative, traditionalist side (my husband constantly mocks me for being a rule follower).  Maybe that's what's coming out; maybe I think lawyers, including cause lawyers, should err on the side of relying on the advice of those that have gone before, and successfully so.

3. As for Ethan, I never thought the amendment/revision argument was as bad as he seems to think it was.  I think ultimately it was correctly rejected, but I don't think its flaws were so obvious that the gay rights advocates who made it have forfeited any claims to leadership.  Moreover, the anti-8 argument really was defensive; by contrast, I worry that the Olson-Boies suit is an ill-considered attempt to grab the brass ring all at once.  So ultimately, I don't fault the gay rights leadership for using the courts to attach Prop. 8, just like I don't fault the pro-8 forces for aggressively defending its legitimacy as an amendment.

4. JP's concise comment seems pretty perceptive to me.  S/he's absolutely right that making policy through litigation carries with it the risk of cause lawyers losing control of the litigation (and thus the policymaking) agenda.  My original post compared the situation today to that faced by Thurgood Marshall when he was running the NAACP's litigation effort.  I'm absolutely no expert on the history of cause lawyering, but I guess what we're now realizing is that, in a real way, a difference between his NAACP world and today is that today litigation can't be controlled by a single group of cause lawyers.  It seems to be a complex question.  Maybe Marshall had the luxury of that control because so few wealthy people cared about the cause he was espousing.  Or maybe those that did care and had the resources to litigate on their own had a greater sense of deference or loyalty.  Or maybe there was some other dynamic.  If Sam's speculation is correct, and this lawsuit is being funded by pro-gay rights folks with deep pockets, then this suggests that both of the characteristics that might have benefitted Marshall have broken down, at least with regard to this issue.  I'd love to hear the thoughts of others who know more about cause lawyering, both then and now.

5. Finally, the tone.  Fair enough: Regardless of any hand-wringing about professional judgment, I am pretty annoyed at this lawsuit.  I have a lot of respect for public interest/cause lawyers who spend a lot of time -- yes, all their professional lives -- crafting a long-term litigation/legislation strategy to get from point A to point B.  For a couple of high-profile litigators to suddenly enter the fray and make a high-stakes, high-risk legal claim may be their right, but it's hard to believe that it's being done in good faith.  Why didn't they write an amicus brief in the Prop. 8 case, warning that upholding Prop. 8 would raise serious federal constitutional issues?  Why haven't they participated in any of the state constitutional litigation over the last ten years?  Why only now, and why the riskiest argument?

So, in answer to law type, I do have a personal reaction to this -- resentment, but not envy -- because I feel like my rights are now in the hands of people who have no particular track record of demonstrating that they have my best interests at heart.  If in fact they do, then at best they seem to be recent volunteers for the front lines, rather recklessly implementing their own strategy when a defeat has consequences for millions of other people.  The gay rights leadership may or may have done a good enough job to warrant my trust or Olson's and Boies's deference (though I have to say I would never have predicted the progress that's been made in such a short time).  But at least I know they've been out there, fighting the good fight on my behalf for a long time.  Ted Olson?  Not so much, though again I'm loathe to discount the possibility that he's had a conversion that places him in opposition to the political forces he's publicly supported for decades, and that has motivated him to take this highly public and risky move on behalf of people whose rights his side has always opposed.

Who knows?  Maybe the combination of Ted Olson and David Boies will persuade Justice Kennedy to take the leap.  If it does then I'll nominate them to be grand marshals of the next Gay Pride Parade, confess during my next Prawfs stint that my susicious overly-cautious attitude would have delayed our victory for decades, and give thanks that people like me are safely in academia where we can't do any harm.  If it doesn't, and if the lawsuit crashes and burns and sets back litigation efforts for years if not decades, I'll look foward to seeing Ted Olson lobby just as publicly for a pro-same-sex marriage plank in the 2012 Republican platorm.  And David Boies doing the same on his side, for that matter.

Posted by Bill Araiza on May 28, 2009 at 05:50 PM | Permalink


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One other point: given that most state avenues have been foreclosed by precedent or state constitutional amendment, it was not going to be long before a lawyer, not connected with the movement, was going to be employed by clients who did not want to wait for a better climate or for the legislative process to work itself out. Is it not better to have lawyers with the skills of Mr. Olson and Mr. Boies pursuing these arguments than for some lawyer with much less skill?

Posted by: Mschonholz | May 29, 2009 12:04:02 PM

For what it's worth, Bill, I didn't read your earlier post as smacking of any envy, resentment, and sarcasm found by "lawtype." So don't concede too quickly to an obnoxious and cowardly anonymous commentator!

Posted by: Dan Markel | May 29, 2009 1:03:54 AM

MS: I agree; taking an aggressive position in that situation might be the only option open to a lawyer who was truly representing a client's interest instead of acting primarily to advance a larger policy goal. I say that with the caveat that I'm not an expert in professional responsibility, either defined narrowly as the rules relating to a lawyer's legal obligations, or broadly, as the ethical principles that should guide a lawyer's conduct. But I still think you're fundamentally right. To my mind, your example, and the larger issues raised by the Olson-Boies lawsuit, highlight the complexity of a lawyer's ethical obligations once one starts to mingle a lawyer's individual client-based interests with larger policy-based goals.

Posted by: Bill Araiza | May 28, 2009 10:55:52 PM

What if the situation was slightly different. Instead of being recruited by an organization to advance that organizations legal preferences in court, what if Mr. Olson or Mr. Boies were approached by one of their law partners who was gay to challenge either California or NY's ban on gay marriage. Both lawyers would be foreclosed by state court precedent from challenging the law on state constitutional grounds. Their only alternative, besides telling them just to wait for the legislature to deal with it or to simply wait for a better time, would be to challenge the bans on federal grounds. If your only concern is zealously representing your client's interests, this is really your only choice. A lawyer not tied up with a movement's legal and political strategy owes nothing to those lawyers. It might be unwise, but as zealous advocates, the lawyer is left with little alternative but what I wrote above. In a normal litigation context, it would be rare for a lawyer not to advance all positions.

Posted by: MSchonholz | May 28, 2009 8:13:46 PM

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