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Redefining "Lost Cause"

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In Jules Lobel's book, winning isn't everything. In fact, contends Lobel, in his chosen field of civil rights and human-rights law, winning doesn't count for nearly as much as most Americans think.

 

Lobel's book Success Without Victory: Lost Legal Battles and the Long Road to Justice in America (New York University Press) recounts a history of courtroom struggle in which Lobel himself has played no small part. Chapter 1 contains Lobel's account of how in 1990, working with fellow attorneys at the Center for Constitutional Rights, Lobel represented members of Congress in a suit to prevent the Persian Gulf War. That suit, predictably, lost. And it marked only one point in a career of predictable legal losses stretching back to early-'80s efforts to end U.S. military assistance to a repressive regime in El Salvador and forward to, and beyond, a suit to halt the U.S.-led bombing of Kosovo.

 

Lobel details both those efforts, and other episodes from his career, in his engaging book. But much of Success Without Victory doesn't explore his own casework at all. Instead, several chapters dig into history. That's where Lobel, a professor of constitutional and international law at the University of Pittsburgh Law School, finds much of the meaning for his avocation -- and for the redefinition of "success" in terms of the long haul, rather than in a single judge's decision.

 

In his introduction, Lobel quotes Emerson: "My entire success, such as it is, is composed wholly of particular failures." Taking up that dissident strain, the book is more a work of history and memoir, even philosophy, than it is a legal tome. "It was written in part as a critique of American culture, of a culture which has such a heavy focus on winning," Lobel says.

 

Lobel is tall and lanky, with a bushy beard, and his roots are plain in his Brooklyn accent. His lifelong empathy for the underdog was foreshadowed not only by his Jewish heritage -- and things like the 1943 Passover Uprising in Warsaw's Jewish ghetto -- but also, he jokes, by his switch of allegiance in 1964 from baseball's mighty Yankees to the then-stumblebum Mets. After graduating from New York University he became a bakery worker and labor organizer; he changed careers after seeing how the law was wielded against activists. In 1983 (right about when he started teaching at Pitt), Lobel joined the CCR's Central American legal team to, among other things, fight the Reagan administration's support of the Nicaraguan contras.

 

Thus began what Lobel writes has been a "spectacularly unsuccessful" record by conventional standards. Many of the CCR's big cases were predicated on the War Powers Resolution, intended to prevent presidents from going to war without Congressional approval. None of the cases he writes about here were winners (including the CCR's 1979 federal lawsuit to keep open U.S. Steel's Youngstown Works).

 

Yet telling the stories of 19th-century American lawyers who unsuccessfully defended the rights of runaway slaves and the civil liberties of free African Americans, and who unsuccessfully fought to get women the vote, Lobel argues that even losing cases can set helpful legal precedents. Perhaps even more importantly, such cases can draw attention to important issues and plant the seed of remedy -- as, say, Plessy v. Ferguson upheld the "separate but equal" status quo but set the stage for Brown v. Board of Education a half-century later. Perhaps most importantly, in Lobel's view, they inspire others to continue the struggle, creating a tradition of resistance that keeps the fight for justice alive.

 

The philosophy has its pitfalls. Lobel acknowledges that such court challenges can be too broad in scope and that they can even lead to precedents that harm the cause. Moreover, what Lobel calls "prophetic litigation" can overfeed the egos of crusading attorneys: Worries about his own "grandiose" motives were one reason he gave up War Powers cases. There's also the risk of pursuing visions in a vacuum: For such litigation to have any lasting effect, it must be tied to a broad social movement that will keep the issues alive.

 

Lobel and his wife, educator Karen Engro, live in Point Breeze with their three children, but his family and teaching responsibilities, not to mention the demands of promoting a new book, aren't quite enough for him. He's still with the CCR; recent briefs include one filed in a case now before the U.S. Supreme Court in which he argues that American citizens detained in the war on terror cannot be held indefinitely.

 

Another CCR case is a class-action suit filed on behalf of some 500 prisoners at Ohio's Wilkinson supermax, challenging on due-process grounds the methods by which they've been placed and retained there, as well as prison conditions. "It was a case it was hard to get anybody to take, because it was seen as a very difficult case," says Lobel. "I've sort of gotten a reputation as the Don Quixote of the legal world."

 

In 2002, in U.S. District Court, the prisoners won open-air recreational privileges and improved medical care; the state has appealed the ruling. "I'm now apparently on a winning streak," says Lobel wryly, adding, "I don't know if I can in good faith speak about this book."

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