DIVIDED WE LITIGATE - ADDRESSING DISPUTES AMONG GROUP MEMBERS AND LAWYERS IN CIVIL-RIGHTS CAMPAIGNS

Who decides who speaks for a group in the legal system Members of amor phous social groups often disagree about the group's goals, and attorn eys purporting to represent such groups often disagree about the best strategies to employ in pursuing those goals. Recently, some lesbians and gay men have wanted to seek the right to many, while others believ e it is the antithesis of gay liberation; some pro-gay attorneys want to make arguments based on the immutability of sexual orientation, whi le others believe this to be the wrong approach to queer equality. The se disputes parallel those among African-Americans, women, and the dis abled-and among their attorneys-in related civil rights campaigns, and coincide with conflicts that occur in a variety of other types of cla ss lawsuits. In this Article, Professor Rubenstein demonstrates that t he rules of civil procedure structure disputes among group members abo rt their goals and that the rules of professional ethics structure dis putes among attorneys about legal strategies. Professor Rubenstein int roduces two alternatives to the extant individualist model of procedur e and ethics: a democratic model and an expertise model. After examini ng the benefits and costs of all three models, he concludes that the r ules of civil procedure should promote more democratic decisionmaking among group members in civil rights cases and that the rules of profes sional ethics should promote more expertise-driven lawyering in such c ampaigns. The Article culminates by initiating a discussion of specifi c doctrinal recommendations that would embody these values.