Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering

Abstract

Public interest impact litigation as currently practiced raises significant legal ethics concerns. This Article excavates the historical foundations of two of these difficulties and, on the basis of original archival research, uncovers a way around them. The Article focuses on two modern ethical dilemmas posed by impact litigation: conflicts of interest and the use of litigation for policy-making. It argues that, as a historical and doctrinal matter, these ethical problems trace back to Justice Brennan’s decision to set cause lawyering on a putatively neutral First Amendment basis in NAACP v. Button. That rationale, however, was not the case’s original ratio decidendi. In fact, the egalitarian neutralism Brennan embraced had initially provided a reason for finding impact litigation improper. Only a pair of dramatic, unexpected resignations transformed it into a foundation for cause lawyering. Meanwhile, an unpublished draft opinion would have grounded impact litigation in Equal Protection and Carolene Products-type considerations. This race- and power-conscious alternative, championed by Justice Black, provided a competing ethical foundation for public interest impact litigation that would have better addressed our contemporary legal ethics concerns. This Article elucidates Justice Black’s argument for the first time. It reconstructs the complicated dynamics that led to the abandonment of his dissent and its transformation into Justice Brennan’s majority opinion. In telling this story, the Article denaturalizes the ethical regime that governs impact litigation today by showing how nearly it was radically different. The Article’s contributions are descriptive and normative. On the descriptive level, it offers a revised account of NAACP v. Button on the basis of new archival finds. Normatively, it seeks to champion Black’s race- and power-consciousness against Brennan’s neutralism, showing what Black’s approach might have to offer legal ethics today.