This Article considers a question rarely addressed: What is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. The analysis in this Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Alabama in the 1950s and 1960s, and that of lawyers representing detainees facing proceedings before the military commissions in Guantánamo Bay, Cuba. These portraits illuminate the strategies available to lawyers who face procedurally unjust tribunals operating within a larger liberal legal regime such as our own.
The purpose of the Article is to paint a landscape of U.S. lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals, such as whether lawyers who participate are complicit in injustice, and the consequences to the client and to society of lawyer resistance to injustice. It demonstrates the dualistic interplay between acts of resistance and complicity: Acts of resistance may be coopted and perpetuate injustice, and acts that appear to be complicit can result in powerful forms of resistance. It analyzes the forms and expressions of resistance, and presents an original schema of the acts of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to the client, and whether lawyers can know when a tribunal is so unjust as to merit resistance. The Article concludes by considering avenues for further research.