“We’re just doing it for the cause” – but which one? Lawyers as agents of the legal mobilization of public and private interests

Lawyers occupy a pivotal role in legal mobilization. They marshal the legal expertise to transform wants and needs into justiciable claims that a court of law can adjudicate on, and they advise their clients on what they can obtain from the legal system. In contemporary socio-legal research on the political role of lawyers, however, there is a notable bias towards what Stuart Scheingold and Austin Sarat have labelled ‘cause lawyering’. The preoccupation with the role of lawyers as politically committed social activists who put their legal skills and personal resources at the service of marginalized groups and ‘weak interests’ is somewhat at odds with the observation that social movements or labor unions are not the only type of organized interests that pursue political objectives by resorting to the legal system. In fact, private businesses have been found to be much more active in litigation than interest associations. What is more, socio-legal research has begun to acknowledge firms as relevant players involved in strategic litigation. Against this background, our paper proposes to extend extant research in two directions: First, we want to surmount the undercomplex distinction between cause and mainstream lawyer(ing). Second, we analyze lawyering in a legal context different from the iconic US-American system of ‘adversarial legalism’. We investigate the role and impact of lawyers across a set of court cases from Germany that tap into the relationship between national (constitutional) law, Union law, and the European Convention on Human Rights. The cases pertain to different policy domains and litigants. As regards firms, we investigate litigation of individual shareholders against statutory corporate co-determination and litigation by energy suppliers for financial compensation for a premature phase-out of nuclear energy. With regard to trade unions, we consider legal and constitutional challenges against the ban on the right to strike of civil servants. And in view of social movements, we analyze litigation against regulatory frameworks on climate protection. We combine data from qualitative interviews with attorneys and representatives of organized interests, legal texts (written submissions and court rulings) and information from secondary sources such as trade journals to unpack the motivation of lawyers to present the disputing party, their perceptions of the cause, the ties that lawyers maintain to the parties they represent in court, and their activities inside and outside the courtroom.