For me, this label not only obvious, but tends to begs the question. I agree that we should side with the underdog; but isn't the "underdog" defined as the party that is suffering the greater injustice? Some examples facilitate relatively easy characterization (the indigent defendant vs. the "people"), but I'm not sure that this is always the case. I do believe that some situations require greater analysis into precisely who is the underdog.

If we do decide to represent the underdog, I agree that some worry exists as to how future litigants might construe the initial case for unjust gains. But as Professor Moglen referenced above, the solution is not to remain motionless, nor to imperatively act. What type of analysis should occur before we act? Should we try to perform a type of balancing-test (the present injustice vs. the possible unintended, adverse effects of our representation in the future)? For some reason this doesn't seem satisfactory - perhaps it is too close to "transcendental nonsense". Maybe we should just be very careful to craft our arguments and representation to minimize any chance of misuse?

-- KeithEdelman - 16 Feb 2009

Michael, do you think that "the underdog" is a fixed concept? In terms of your proposed criminal defense work, you might think it is the indigent accused criminal. But if everyone follows your proposition and begins to "side with the underdog," then many individuals will represent the criminally accused and the label of "the underdog" might shift to the victims. Maybe we ought not be so concerned about who "the underdog" is and we should instead be concerned about whether we have a legal system that provides fair and zealous representation to all parties.

-- LaurenRosenberg - 16 Feb 2009

I'm not really trying to argue in favor of seminar room nihilism. I think I boxed myself into an absurd position above just trying to set up the idea I took from Andrew's original post. (1-4 above were just restatements of what I took from that post, and aren't really meant to be doing any work here.)

Maybe what I'm getting at will make more sense if I bring the discussion down to Earth and give some examples. One constructive response to the anxiety I'm describing would be to represent clients whom our society places at a systematic disadvantage -- for instance, through indigent criminal defense work. Similarly, I'm not particularly worried about harms arising from civil rights work, or plaintiff-side class action work, or from any of the examples Prof. Moglen mentioned above. I think I'm really just saying that if we want to make sure we're really doing justice, we should always side with the underdog. (I suppose that might be obvious.)

So what am I suggesting we ought to worry about, even if we side with underdogs? I'm not totally sure myself, but I think it has something to do with how legal doctrines can take on a life of their own, and get applied by courts in both just and unjust ways. For instance, in my Con Law class we've been talking about substantive due process, which is now understood as the basis for a constitutional right to privacy; if we're concerned with protecting civil liberties, we'll likely argue our cases on the basis of doctrines connected to substantive due process. But substantive due process arose in Lochner and subsequent cases as a justification for preventing states from passing hour and wage laws for workers' benefit. Of course, Lochner is supposedly discredited now, but it's not clear to me that the doctrine of substantive due process couldn't be used for similarly obscene ends in the future. The same could hold true for many legal doctrines.

-- MichaelHolloway - 15 Feb 2009