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Abstract:
Progressive legal scholars today exhibit contrasting views on the scope of legal actors' agency in making "choices" about how to lead their lives. Feminist legal scholar Joan C. Williams, for example, challenges claims that women who leave the paid workforce to stay home with children have made a voluntary choice to take this path. Critical race scholar Ian Haney López, on the other hand, argues that the social construction of racial identity occurs precisely through the many voluntary choices members of both subordinated and dominant racial groups make about matters that implicate racial meanings. Williams contests the idea of voluntary choice; Haney López embraces it.

These different viewpoints highlight the need for further work in legal theory on how to theorize human agency – that is, the power of persons, at the individual or collective levels, to develop and achieve creative goals and to act effectively or bring about change within their the social environments in light of those goals. As a number of progressive legal scholars have point out, neither of two leading paradigms – which I will term liberal individualism and post-structuralism – are fully adequate to this task of theorizing agency within social constraints.

I argue that the reason that neither classical liberalism nor post-modernism will fully do stems from the inadequacies inherent in both paradigms' strongly divergent theories of the self. Strong forms of liberal individualism see the self as existing prior to its social surroundings and thus as capable of robust agency in making choices about life goals and how to achieve them, but this perspective arguably does not sufficiently account for the thoroughly socially constructed nature of human values and aspirations. Strong forms of post-structuralism, on the other hand, view the individual as a mere fiction–a construction embedded in the structure of language that masks the thoroughly constitutive priority of the social. But this approach, many critics argue, comes close to denying the capacity for human agency altogether.

Many scholars are today at work on new ways of theorizing agency that avoid the pitfalls of liberal individualist and post-structuralist approaches. These scholars include Haney López, as we have just seen, argues that social constructs such as race, having been created by human action, are subject to reconstruction through purposive human action; Devon Carboda and Mitu Gulati, who examine the agency of members of outsider identity groups in combating employment discrimination; feminist theorist Kathryn Abrams, who investigates new ways of theorizing "partial agency" in a revised liberal tradition; and post-structuralist queer theorist Judith Butler, who has written about the importance of preserving space for individual and collective agency in theorizing about the social construction of gender identity.

In this Article, I seek to make a modest but important intervention in this discourse about how to theorize agency within a social constructivist framework. I do so by hailing the classical pragmatists' theory of the self as an important but currently overlooked theoretical resource for this work. As revised for use in an early twenty-first century context, classical pragmatism can enrich the discourse on agency within the legal academy because it both acknowledges the thoroughly socially constructed nature of the self yet also recognizes a robust capacity for human agency at the individual and collective levels. The classical pragmatists' theory of the self does not depend on implausible notions that actors possess the ability to "choose" their identities or destinies; it instead embraces the social constructivist insight that actors in a legal system are thoroughly constituted, in their identities, values, desires and goals, by their social context. At the same time, the classical pragmatist conception of social identity construction differs from the subject formation theories of the post-structuralists because, to the classical pragmatists, selves in interaction with each other constantly reconstruct the social environment, just as this social environment, itself composed of selves in interaction, constantly constructs, or gives social identity to, these selves.

Classical pragmatism, in other words, conceives of the relationship between selves and the social environment as an interaction with multiple directions, whereas liberal individualists and post-structuralists both tend to overemphasize a single directionality in what we should envision as a more complicated process. Individualists can too greatly emphasize the individual's priority in relation to his or her social surroundings; post-structuralists, revealing their origins in classic structuralism, can overemphasize the overwhelming force of the social on the subject. Classical pragmatism offers a greater emphasis on the multidimensional nature of the interaction among organism and environment, as well as among internalized, often inconsistent, dispositions of the organism and conflicting dimensions of the environment. The self is a multitude of interactions, not a static inside substance (mind) or a location in an external context (structure).

I develop my argument as follows: In Part I, I sketch the contrast between liberal individualist and post-structuralist approaches to the self, drawing for purposes of my brief overview on a several diverse scholars who have received wide attention among American legal academics. In Part II, I present my reading of the interactionist theory of the self the classical pragmatists developed, focusing especially on the work of John Dewey and George Herbert Mead. I show briefly how contemporary scholars in a number of disciplines--though not yet law, surprisingly--have drawn on Dewey and Mead to develop new theories of an agenic self responsive to the challenges of early twenty-first century social theory. These scholars have also begun to trace parallels between Dewey's concept of habit as the flexible mediating link between individuals and their social surroundings and Bourdieu's concept of habitus, derived from continental phenomenology – a parallel that deserves greater attention in legal theory today. In Part III, I make the case that the classical pragmatists' theory of the self offers an important intervention in the current discourse among progressive legal scholars about the scope of legal actors' agency. In Part III-A, I summarize key points of comparison between classical pragmatism and post-structuralism. I argue in Part III-B that the classical pragmatists' emphasis on the creativity of human agency offers an important feature missing from post-structuralism. In turn, classical pragmatism can be updated for use in an early twenty-first century context by incorporating into its basic framework the greater contemporary awareness of the pull of the unconscious and entrenched force fields of power, all without negating its emphasis on the potential efficaciousness of deliberative action. In Part III-C, I suggest some of the ways in which a classical pragmatist orientation to theorizing the self solves the difficulties of liberal individualist and post-structuralist approaches and outline some of the tenets of a classical pragmatist approach to the self and human agency as so revised. Finally, in Part III-D, I explore several examples drawn from recent historical debates among legal scholars that demonstrate more concretely the potential applications of such an updated classical pragmatist approach.

legal theory, agency, ethics, social change, political activism

Abstract:
In this Article I assess courts' application of the U.S. Supreme Court's affirmative defense doctrine in hostile environment sexual harassment cases. This doctrine provides that employers may avoid being held vicariously liable for hostile environment sexual harassment by supervisors if they can establish that: (1) they have taken reasonable measures to prevent sexual harassment, including setting up adequate complaint procedures, and (2) the employee who suffered sexual harassment unreasonably failed to avail herself of these procedures. This affirmative defense doctrine is U.S. Supreme Court-made law, developed in a series of cases as I will discuss below.

The Court, and commentators such as Susan Sturm and others, argue that the design of such an affirmative defense to employer vicarious liability in supervisor hostile environment sexual harassment cases serves important policy objectives. Chief among those objectives is the use of legal rules to create incentives for employers to design and implement sexual harassment policies that will deter and punish sexual harassment at the workplace level, avoiding the need to involve the courts. Institution of sexual harassment policies helps insulate employers from lawsuits, or, if lawsuits are filed, helps ensure that employers will not be held vicariously liable for the actions of their employees.

In this paper I do not take issue with the incentive-creating aspect of the Court's affirmative defense doctrine. On the other hand, I document cause for reservations about the way the affirmative defense doctrine has developed. I show that the current, extremely confused and contorted articulation of that doctrine by the courts has increasingly moved away from the original understanding of the purposes and policy underlying recognition of sexual harassment as a form of sex discrimination. To do so I survey the case law, discussing several examples of the courts' application of the affirmative defense doctrine in considerable factual detail in order to capture the application of law to facts. I then draw on the excellent, burgeoning general literature on sexual harassment law and on the research of experts who study organizational dynamics to argue that these courts' application of the affirmative defense writes out of sexual harassment law concern for crucial issues concerning the operation of informal power dynamics in the workplace. I propose an alternative approach that would call on courts to engage in more searching scrutiny on these questions, and demonstrate that this proposal is a feasible one by pointing to examples of courts that have engaged in such searching, fact-sensitive analyses.

sexual harassment, Title VII, sex discrimination

Abstract:
In recent years, the supposed achievements of the American civil rights movement have come under attack as part of a critique of the ideology of legal liberalism. That critique argues that civil rights lawyers and other activists too greatly emphasized court-focused strategies aimed at achieving what would turn out to be pyrrhic "civil" rights victories - i.e., gains solely in "formal" equality in requirements enshrined in law as to how the state should treat its citizens. This critique of legal liberalism is well deserved insofar as it is aimed at a tendency within legal academia to extol the virtues of the American legal system, especially the U.S. Supreme Court's allegedly laudable protection of civil and political rights. But in this Article I argue such critiques of legal liberalism should not be allowed to bleed into evaluations of the goals of the civil rights movement itself, especially when taking a long view on the movement for racial justice.

I seek to promote taking such a long view of the movement for racial justice by evaluating the legal liberal critique of that movement in relation to an important early leader: T. Thomas Fortune, a law-educated militant journalist, public intellectual and organizer. In 1887, Fortune founded the Afro-American League, a national organization that was short-lived but nevertheless played an important historical role in the transmission of ideas to later groups including the Afro-American Council, the Niagara Movement, and the NAACP. Fortune's multi-dimensional view of the struggle for racial justice embraced a number of ideas we tend to see as distinct or even opposing today. Fortune supported reactive court battles and proactive legislative reform, establishment of equal civil and political rights and an ultimate goal of economic justice, intra-race self-help and interracial coalition politics aimed at eliminating poverty for all persons regardless of race. Examining Fortune's ideas helps remind us that the history of the civil rights movement was more complex and multidimensional than the contemporary legal-liberal gloss remembers today.

Abstract:
This short Essay explores several potential teaching moments in which one might raise issues concerning the micro-politics of socioeconomic class status. I discuss cases found in popular casebooks for three course areas in which I teach: torts, employment, and employment discrimination law. I show how analysis of dynamics related to socioeconomic class in discussing case outcomes can help expose assumptions about the naturalness or inevitability of the law's withholding of dignity rights to persons of low socioeconomic status. Law can reinforce ideas that such subordination is natural to the workplace and market, when in fact those ideas are subject to potential challenge through law just as they are reinforced through it. I thus use case analysis to raise for classroom discussion the following question: Just as law can construct and enforce status hierarchies, might the notion of dignitary rights potentially be made to do positive work in law by disrupting the reinforcement of status hierarchies?

Abstract:
The history of the NAACP is key to American conceptions of how to achieve social change through law. Yet despite the vast literature on the NAACP, no one has explored how the early NAACP navigated traditional legal ethics strictures in developing its innovative test case litigation strategies. In this Article, Prof. Carle examines that question, focusing on the activities of the elite white New York City practitioners who dominated the NAACP's first national legal committee between 1910 and 1920. Prof. Carle shows that this committee was experimenting with litigation strategies that included soliciting clients, advertising legal services to strangers, and staging facts for test cases. At the same time, legal committee members were involved in local bar associations that were enforcing legal ethics prohibitions against solicitation, advertising, and "stirring up" litigation. Prof. Carle explores the world view that allowed these lawyers to champion the NAACP's innovative legal work while simultaneously supporting the bar's traditional legal ethics views. She argues that the committee members' universalist understanding of the public good allowed them to endorse the NAACP's use of innovative litigation techniques while sitting on bar committees that penalized other practitioners for similar conduct, and that their professional and social privilege gave them such freedom to maneuver around inconvenient legal ethics norms in experimenting with new forms of public interest practice.

legal ethics, professional responsibility, NAACP, history of the legal profession, public interest law

Abstract:
A fundamental disagreement among legal ethics scholars concerns the difference between client-centered and justice-centered approaches to lawyers' ethical obligations. Advocates of client-centered approaches put lawyers' duty to the client first. Justice-centered theorists critique the elevation of the client's interests over other important concerns lawyers affect through the work they do on behalf of clients. Scholars who adopt justice-centered approaches argue that lawyers' ethical obligations should be analyzed with a paramount focus on achieving justice.

Legal ethicists often view these two approaches as inconsistent with each other, but I argue in this Article that they are not necessarily so. Building on the growing awareness of the need for context-specific legal ethics analysis, I argue that a key factor responsible for the disagreement between client- and justice-centered legal ethics scholars is their focus on different practice settings, where different ethics concerns have priority. Ethicists concerned about the immense power of corporate clients to do harm to fragile structures of public regulatory law focus on lawyers' duties to concern themselves with the underlying justice of their representations, while ethicists immersed in practice settings involving the representation of relatively powerless clients or interests, such as in criminal defense and poverty law practice, are adamant about the need for client-centeredness. I argue that we can make much better sense of the debate between client- and justice-centered ethicists if we appreciate the importance of context in setting ethics priorities.

The challenge then becomes identifying the factors that vary with practice setting and account for the different emphases of justice- and client-centered approaches. I suggest that a key factor that accounts for ethicists' varying views about the appropriate balance to be struck between client- and justice-centeredness is the relative power of the lawyer's client in relation to other interests affected by the representation. Of course, power is not, and should not be, the only factor taken into account in calibrating ethics analysis to context, but it is an important one, which deserves further attention in legal ethics scholarship.

I next propose a normative standard for how relative client power should be taken into consideration in lawyers' ethical deliberations. In representations involving obvious and substantial power imbalances, lawyers representing less powerful interests should adhere to a client-centered, zealous advocacy approach, whereas lawyers for powerful clients should temper their representations with an eye to protecting consideration of the interests of the less powerful. I identify several reasons why considerations based on relative client power should factor into lawyers' ethical deliberations in this way. These reasons include the representation reinforcement function of zealous client advocacy on behalf of the under-represented interests and the fact that the liberal underpinnings of client-centered legal ethics support the protection of the dignity of natural individuals, but not aggressive advocacy for the interests of institutions that are mere creations of law. Factoring client power into lawyers' ethics analysis also avoids the powerful criticisms leveled against justice-centered models on grounds that these approaches call for the paternalistic substitution of lawyers' socially situated judgments about morality and justice on clients who are least able to resist such lawyer domination. Finally, consideration of client power provides an ethics norm that pushes back most directly against the moral hazards produced by self-interest in varying practice contexts. In the context of representing powerful clients, lawyers' incentive is to do too much for their clients; in the context of clients with relatively little power, lawyers' incentive is to do too little. An ethics norm that calls on lawyers to temper their advocacy when representing powerful clients but to pursue client-centeredness when representing clients with little power asks lawyers to correct for the specific pressures faced in their practice locations.

To test my theory, I apply a power-based ethics model to a series of hypotheticals drawn from the work of ethicists in the justice- and client-centered traditions. I show how considering client power in resolving difficult ethical dilemmas in situations of obvious and substantial power imbalance can help produce ethical judgments that are most appropriately tailored to varying practice contexts.

legal ethics, legal theory, lawyering

Abstract:
This article examines a long-forgotten controversy about lawyers' duties to evaluate the justice of their clients' causes in civil cases, which took place among the members of the Committee of the American Bar Association that drafted the 1908 Canons of Professional Responsibility. The article presents an analysis of newly discovered internal working documents of this important, but never before examined, ABA Committee, supplemented with primary historical research into the views and backgrounds of the Committee's members. The article demonstrates how a clash of perspectives among these men -- traceable in part to their backgrounds but also to their unpredictable allegiances to conflicting trends in legal thought at the turn of the century -- prevented the Committee from reaching a satisfactory resolution on the duty-to-do-justice issue. The Committee members instead adopted ineffectual compromise language in the Canons, leaving us with legacy of concealed ambivalence on the question of lawyers' "duty to do justice" in civil cases.

legal ethics, legal history, canons of professional responsibility

Abstract:
This Essay examines both the promise and the drawbacks of new models of achieving institutional self-reform through voluntary, self-designed processes, such as those undertaken in a case study Susan Sturm presents of the National Science Foundation's (NSF's) ADVANCE initiative, a program designed to encourage universities to make progress in eliminating the severe under-representation of women in academic positions in the sciences.

The promise of such models is multi-faceted. Most important, they offer paths for bringing about institutional reform without extensive management from legislatures or courts. They bring together affected interests to find win-win solutions. Law supports the achievement of consensus through voluntary negotiation by presenting a normative background and, if necessary, a background litigation threat, but voluntary approaches allow the parties to avoid the gamesmanship and finger pointing involved in litigation and instead devote their efforts to finding creative solutions for the future. Such approaches are also more likely to generate the buy-in of those who must implement reforms; without such buy-in, lasting change is unlikely to occur.

As to the drawbacks of voluntary, self-designed processes, I argue that these may in many ways mirror their benefits. The central problem on which I focus concerns the vagueness of such models with respect to how to secure the participation of traditional outsiders who are the supposed beneficiaries of institutional change processes that take place through the efforts of actors operating within institutions. This vagueness leads to a host of unanswered questions: The central goal of the project Strum studies is to make institutions more open, but who decides to whom they should be opened, what kind of openness is appropriate, and how to balance openness with other institutional values? How much change is enough?

I also focus on Sturm's discussion of lawyers' potential in organizational catalyst roles under such alternative models, as further developed in a budding literature that promotes alternative paradigms for lawyers' involvement in institutional change processes. Drawing on an extensive legal ethics literature, I query the proper limits to the de-linking of lawyers' work from the representation of the self-articulated interests of actual clients or client groups.

democratic experimentalism, structural reform, lawyering

Abstract:
This paper continues an inquiry I have undertaken into the relationship between the NAACP's public impact litigation strategies and traditional legal ethics norms. In an earlier paper, I investigated the legal ethics mind set of the members of the NAACP's first national legal committee, who oversaw the organization's legal work in the period between 1910 and 1920. This first article confined its examination to the NAACP's first decade of existence, but the NAACP's influence on the development of the ethical norms applying to public interest law practice by no means ends with this early period. The NAACP's legal wars with hostile southern states in the 1950s and 1960s culminated in the United States Supreme Court's important legal ethics decision in NAACP v. Button. That case essentially legalized the public impact litigation techniques that are at the core of U.S. conceptions of how to use law as an instrument for social change.

This Article picks up where my earlier article left off and explores the transition from the early twentieth century legal ethics views of the NAACP's first national legal committee to the understanding of the relationship between legal ethics rules and public interest law reflected in Button. The transition from Buchanan to Button reflects one aspect of an enormously complicated story. One of many chapters of that story involved transformations in lawyers' conceptions of their ethical obligations. That is the aspect of the transition from Buchanan to Button I am interested in here.

I undertake this inquiry by setting up two contrasts. First, in Part I, I compare snapshot views of two U.S. Supreme Court cases the NAACP litigated half a century apart, Buchanan v. Warley and NAACP v. Button. Second, in Part II, I contrast the biographies of two leading NAACP lawyers of different generations, Moorfield Storey and Charles Hamilton Houston. I examine the socially and historically situated perspectives of these two lawyers and analyze the complex interactions among a number of variables -- including race, social standing, insider versus outsider status in the profession, political conditions, and changing jurisprudential conceptions of the nature of legal representation -- that help account for their different approaches to the NAACP's legal ethics challenges during their respective generations. Finally, in Part III, I trace the development of the Supreme Court's legal ethics jurisprudence under Button and suggest the beginnings of a critical approach based on this analysis.

legal history, NAACP, legal ethics, pro bono lawyers, public impact litigation

Abstract:
In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties to particular clients vary. Individual clients facing powerful institutional adversaries deserve client-centered representation, but lawyers representing impersonal and powerful institutions have different ethical responsibilities. In general, Professor Luban approves most of lawyers' work involving the protection of the less powerful against those who would exercise power to cause others great harm.

I discuss several important implications of this shift in perspective, focusing especially on tough questions that arise in thinking about lawyers' ethics in the face of chronic conditions of institutional injustice. Combined with a structuralist supplement, the analysis in Legal Ethics and Human Dignity points to key questions about how to design institutional mechanisms that protect and respond constructively to dissent. Legal Ethics and Human Dignity also compels us to think about these questions in the context of government lawyering, where questions of lawyers' ethical conduct within institutional constraints have become especially pressing today.

Legal ethics, legal profession, individualism, structuralism, government lawyers, David Luban

Abstract:
In this short Essay I argue that we should assign more honor to lawyering for middle income clients. By this I mean that we should hold in esteem careers involving lawyering for middle income clients in much the same way we currently value careers in what is often referred to as "public interest" law. Instead of conceiving of a binary distinction between "public" and "private" interest law, we should think about jobs in the legal profession as falling on a spectrum, along which the public service dimension of a legal position is inversely related to the wealth and power of one's clients. Thus, my proposed model would see more value in representing poor people than middle income clients, but would also see more value in representing middle income clients than wealthy and powerful ones, especially when one is representing middle income clients against more powerful interests. This model, if adopted as an alternative prestige hierarchy among even a small group of the nation's law students, could have important benefits in steering the many socially committed students who do not secure traditional "public interest" jobs to law practice settings other than large law firms representing the nation's most powerful and wealthy interests, and at the same time increase the quality and availability of legal services for middle income clients.

legal ethics, public interest law, poverty law