To public interest litigators, modeling radical arguments in controversial cases is a matter of much interest and, often, consternation. Does one fashion an argument in terms that soothe those jurists most likely to be offended by the proponent’s basic position? Does one try to “win the middle” of a court and hope that the left and right will be drawn to it in a spirit of compromise? No single answer to such complex questions about the ethics and pragmatics of public interest litigation seems adequate to cover all cases and situations, nor is there necessarily a correct response for each situation.
Within the politically-loaded process of framing provocative and creative arguments in “hot” eases, some relatively consistent patterns of response to these situations have emerged in recent years, at least at the U.S. SupremeCourt level. These patterns include the following:
- Counsel for the party whose position is most controversial tend to argue less radically than do some of the amici for that party.
- In well-organized litigation, a wide and not infrequently surprising array of allied interest groups submit amicus curiae briefs to demonstrate the breadth and diversity of support for the proponents’ basic positions.
- When writing a brief in direct support of a client’s position, counsel tend to smooth rough linguistic, symbolic, and political edges by using relatively neutral language, factual descriptions, and presentations of the posture of a case. For example, counsel avoid using popular, off-color, or explicit sexual terminology except where absolutely necessary to present material facts accurately, and adopt a respectful, as opposed to an accusatory, tone for criticism of lower court decision-making processes.
Bowers v. Hardwick amicus curiae brief in support of respondents is submitted on behalf of the Lesbian Rights Project, Women's Legal Defense Fund, Equal
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