Success Without Victory: Lost Legal Battles and the Long Road to Justice in America.

Success Without Victory: Lost Legal Battles and the Long Road to Justice in America Jules Lobel NYU Press www.nyupress.org 336 pp., $32.95

What drives lawyers to bring court challenges they are almost certain to lose? Is it important to create law, even bad law, on controversial issues? What meaning can we derive from a legal career made up of defeats?

To explore these questions, Jules Lobel, a professor at the University of Pittsburgh Law School, analyzes the legal struggles over several critical constitutional issues, including desegregation, women's suffrage, and the scope of executive war powers. The book is also a personal exploration for Lobel, who participated in several of the cases discussed in Success Without Victory. He writes that he hopes to gain insight into the meaning of his own legal career by closely examining lawyers and cases that came before him.

Rather than focus on victories, Lobel studies several cases that appeared to end in defeat. For example, instead of examining the litigation leading up to Brown v. Board of Education, he reviews less well-known cases brought by abolitionists and civil rights attorneys during the 19th century. These culminated in Plessy v. Ferguson, which embedded the separate-but-equal doctrine in American constitutional law for 60 years.

Lobel provides a lively account of several important but relatively unknown cases. The stories are fascinating and will engage litigators who love the details of brief-writing, the tension of last-minute deadlines, the strategies for oral argument, and the drama of judicial decision-making. The accounts also give a close-up view of the legal strategies and personalities of several well-known progressive litigators and activists, including Ramsey Clark, Arthur Kinoy, and Leonard Boudin.

The author gives these cases a human face by detailing the lives of plaintiffs--such as Michael Ange, a sergeant in the National Guard Reserves, who sued the first Bush administration for planning offensive action in the Persian Gulf War without congressional approval. Perhaps most poignant is the story of Ben Linder, an idealistic young engineer who went to Nicaragua to build hydroelectric plants. Linder filed a suit against the Reagan administration for violating international law by supplying weapons to the contra movement. The case was on appeal when Linder was killed in a contra ambush as he worked on a small plant in a remote village in northern Nicaragua.

Lobel finds several lessons in these narratives. He argues that struggles over individual rights take place in both courtrooms and political movements; a courtroom defeat can inspire political action. For example, although Susan B. Anthony's voting-rights litigation failed miserably, it contributed to the passage of the Nineteenth Amendment and spawned the modern women's movement.

Litigation can also give plaintiffs a sense of identity and dignity. In a particularly moving chapter, the author discusses the Youngstown, Ohio, steel litigation. Local steelworker unions took on U.S. Steel to hold the company accountable for plant closings that had decimated the area's economy. The lawsuit helped articulate the steelworkers' goals, showed that challenges to corporate policies are possible, and forced the chairman of U.S. Steel to justify the closings in court. Lobel argues that we must broaden our definition of victory to include the development of political identity beyond the courtroom.

Also, defeat in court today may establish an important principle for future litigators, and a strong dissent can provide the foundation for a subsequent majority opinion. Even the most prominent losses can galvanize interested groups and provide a memory of injustice to inspire future generations. Plessy served this purpose in the struggle that ultimately led to Brown v. Board of Education.

Lobel also argues that we should redefine our personal conceptions of success. A life spent fighting difficult battles is not a career of lost causes, but a "living out of values, persistence in the face of great odds, and the strength to stand up for principle even when defeat seems inevitable."

For Lobel, the history of law and politics is progressive. While there may be setbacks or detours, ultimately these efforts will contribute to greater individual rights and freedoms. This view causes him to omit some of the hard questions: Is it always beneficial to bring cases that are likely to lose? Does the creation of "bad law" always lead to the development of "good law" in the future? We can ask whether Plessy contributed to the desegregation victory in Brown or prevented it from occurring far sooner. For Lobel, a case like Plessy always contributes.

But it is important to consider the risks these cases carry. Progressive litigators need to make hard choices to bring about effective change. Perhaps I am not as sanguine as Lobel about the course of history. I am sure that he and other progressive litigators do make some of these calculations, and the author openly acknowledges particular movements that resulted in failure, but it would have been helpful for him to examine the potential negative impact of these cases in more detail.

Nevertheless, the central insight of Success Without Victory remains compelling: Although the work of constitutional litigators certainly includes "defeats," it is both necessary to our democracy and an honorable part of our legal and political history. And, as Lobel's own life demonstrates, a scorecard of legal wins and losses is not the measure of a distinguished career.

EMILY J. SACK is an associate professor at Roger Williams University School of Law in Bristol, Rhode Island.