By Sameer Ashar, responding to “Rethinking Processes (Of Law and Democracy)” by Seth Davis
As Claire notes in her excellent summary and overview post, Jacinta González described three planes on which lawyers may work in support of social movement organizations: (1) organizer/member defense; (2) campaign strategy; and (3) collaborative critical thinking about legal frameworks and alternatives to the status quo. I will focus in this post on that third plane of collaboration and make connections with other legal academic work in the field.
The framework that González suggested brings to mind the work of Lucie White on three dimensions of change-oriented lawyering (herself interpreting, applying, and critiquing political scientist Steven Lukes on power). In brief, White describes first dimension lawyering as representation of subordinated people in litigation using extant bodies of law – well within established channels of dispute resolution. Second dimension lawyering begins to deconstruct those channels of dispute resolution, identifying obstructions to justice for subordinated people in litigation. In this dimension, lawyers and clients recognize that social change occurs in a larger context of public discourse that is both shaped by courts and legislative bodies and that in turn determines what is viewed as justiciable in those venues. Third dimension lawyering recognizes that political grievance may be suppressed by culture and design and therefore may remain unstated, entrenching existing distributions of power. The conditions of our existence may prevent us from seeing the ways in which we are contained and subordinated. Third dimension lawyers (and, perhaps more importantly, organizers) engage in extended exchange with social movement constituents and begin to identify means by which to challenge conditions that are otherwise understood to be “legal” and normal.
(A meta-lesson for lawyers that might be drawn from the exchange between González and Bansal is that all three of White’s dimensions of lawyering are essential for the advancement of social movements and the achievement of social justice. Rather than assuming a hierarchy of lawyering, all types of lawyering from individual direct services to critical ideation may be undertaken in conjunctions with social movements. Each type of lawyering requires deep attention to craft and a strong sense of solidarity with social movement organizations.)
I appreciate Seth Davis’ expansive take on González and Bansal’s recognition of the use of civil legal process to shift power and it calls to mind a version of excellent second dimension lawyering. He calls for a broader recognition that civil legal process may contain within it mechanisms that can serve to advance democratization. Lawyers who collaborate with organizers to use the legal process to achieve larger ends outside of that process and to reshape public discourse require a mastery of craft combined with multi-modal thinking and deep humility. This is a rare combination. These lawyers understand Davis’ insight that the effort of political and judicial actors to close the courthouse doors go beyond deprivation of one’s “day in court” and are foundationally anti-democratic. Contrary to the Hollow Hope literature, courts and litigation are a constitutive component of a constellation of social institutions that preserve and advance democratic ideals.
I am, in turn, most interested in González’s third plane of lawyer-organizer activity because it is the hardest type of collaboration to enact and to describe. Can lawyers engage in abolitionist ideation or are we consigned to reformist thinking? How does our education and our profession limit our horizons and, thus, our capacity to collaborate with radical social movement organizers and constituents? Movement activists, including González, while she was on the staff of the National Day Laborer Organizing Network, originated an abolitionist approach to immigration enforcement, initiating the “#Not1More” movement in individual deportation defense campaigns across social media platforms and in acts of civil disobedience. (I describe the limited but essential role of lawyers in the prehistory of #Not1More in this forthcoming article.) However, the absence of successful legislative efforts to create paths to legal status and the elimination of enforcement priorities and prosecutorial discretion (including the DACA program) in immigration enforcement under the Trump Administration has thwarted #Not1More tactics. How do we identify abolitionist approaches to immigration enforcement under a punitive and unmerciful legal regime? What is the role of lawyers in the process of movement-based resistance, in collaborative critical ideation with organizers and constituents, and in campaigns to test and deploy those critical ideas?
There is temptation to rely on (and exclusively fund) first dimension lawyering in periods of deep distress for oppressed communities. Lawyers tend to fall back on conventional understandings of their role and comparative expertise and there is great value in the resources they offer for resistance. However, it remains essential for lawyers to search for means by which to collaborate with social movement organizations on campaigns to alter the public discourse and together to imagine worlds in which people may migrate freely and be treated with dignity wherever they live and work, even in regressive periods like these. One of goals of legal education should be to prepare students to engage with movement organizers in these imaginative leaps, a facet of public interest lawyering that remains largely unaddressed in American law schools.