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II. THE ACTIVIST BAR: PROGRAMS AND PROSPECTS Relatively few lawyers are interested in serving the cause of change. Those who are I refer to as the activist bar.l These activist lawyers do not comprise a homogeneous or even a distinct group. There is no consensus among activist lawyers on either methods or goals. Moreover, many who are included divide their time between activist work and conventional practices. To talk about an activist bar is, then, to employ an analytic tool which highlights some basic common ground and helps to explain some important differences. Activist lawyers share a concern for public policy problems and a willingness to use their legal skills in policy-relevant ways. Generally speaking it can be said that the ordinary practitioner serves clients while the activist lawyer serves causes. The activist lawyer is seeking a new professional role.2 I. The lawyers whom I refer to as the activist bar are often characterized as public interest lawyers. There are three reasons that my term is more useful for the purposes of this study. In the first place, public interest lawyers are often, although not uniformly, thought of in relation to consumer, environmental , and poverty law, whereas my concern is with the full range of public policy. Secondly, it is my impression that activist lawyers are not so much guided by a concern with the public interest as by a sense of personal responsibility to act in furtherance of goals and values in which they believe. Finally, the major thrust of the work of these committed lawyers is to provide legal representation for hitherto unrepresented or underrepresented minorities , and whether this reinforcing of pluralist tendencies through support of special interests is, in fact, in the public interest remains, to my way of thinking, an open question. In short, the public interest characterization misses the point and is misleading as well. For an alternative way of looking at activist lawyers, see Jonathan D. Casper, Lawyers Before the Warren Court: CMI Liberties and Civil Rights 1957-66 (Urbana: University of Illinois Press, 1973), pp. 71-89. 2. Raymond Marks with Kirk Leswing and Barbara A. Fortinsky, The THE ACTIVIST BAR Activist lawyers tend to identify with and work for "constituencies " whose needs are "anticipated" and, in all likelihood , "shaped." It is, incidentally, in this latter sense that activist lawyers often emerge as strategists of rights. Activist inclinations def?ne important common ground within the activist bar. Three divergent tendencies are discernible , however, and they can be traced in large measure to different levels of involvement with the myth of rights. Traditional activists are most deeply influenced by the myth of rights and most responsive to its signals and values. At the other end of the spectrum are radical activists who ridicule constitutional procedures and generally disavow constitutional values as well. In between, the innovative activists tend to avoid questions of principle and accept or reject plans of action on the basis of a pragmatic assessment of situation and circumstance. To choose any of the activist paths is to go directly against the grain of the legal profession's conception of professional responsibility. Lawyers, like doctors, have thought of professional responsibility in terms of the excellence of the service provided rather than in terms of who was being served. Clients are neither sought nor chosen. The true professional simply accepts those who come along and are in need of legal representation. Beyond clients, the lawyer'S only obligation is to the law, but these obligations are hardly mutually exclusive : The traditional view ofa lawyer's role . . . relies heavily on the adversary method. . . . He is an advocate. . . . He is interested solely in seeing to it that the interest of the party he represents is as ably advanced as is humanly possible. If this is done-on both sides of any adversary conflict-it follows . . . that the result will be both acceptable andjust. . . . In short, the traditional lawyer has seen himself as Lawyers, the Public and Professional Responsibility (Chicago: American Bar Foundation, 1972), p. 202. THE STRATEGISTS OF RIGHTS serving the public interest by simply doing his daily job of representing only one side ofa controversy. . . . It follows, of course, that no special effort is required to serve the public interest. Service to the public is necessarily a by-product of the adversary system.3 So long as lawyers are willing to close their eyes to the fact that the price mechanism of distributing legal services excludes many in the society from...

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