By Claire Lucas
Introduction to the Colloquium
The Law and Social Movements Colloquium series at UCI Law is a concerted effort by a coalition of students and faculty committed to engaging in critical discussion and knowledge production around social movement lawyering. The Colloquium endeavors to engage students, faculty, and community members with three principal questions: (1) What is social movement lawyering and how are the roles of lawyers, organizers, and citizens defined in that context? (2) What are the synergies and frictions that develop when activists and lawyers collaborate? (3) How can existing legal frameworks better prepare students to assist in social movements?
The common thread throughout these three questions—and in each of the five events in the series—is an examination of power. Specifically, we aim to critically evaluate conventional legal frameworks as well as potential mechanisms for reallocating power through unconventional means.
Our first discussion around these questions engaged Jacinta Gonzalez, Field Director at Mijente (Phoenix, Arizona) and Jessica Bansal, Litigation Director at the National Day Laborer Organizing Network (Los Angeles, California).
Law and Social Movements
Social justice movements spawn from local activism. Lawyers and scholars are generally absent during these initial grass roots efforts. Therefore, it isn’t surprising that many in the legal community lack even basic vocabulary for engaging in a discussion about movement lawyering. We hope this colloquium series is a step toward changing that reality.
Cummings and Eagly drew upon work of other scholars to produce a typology for discussing different types of “organizing” while recognizing that movements are inherently varied and difficult to categorize. The hyper-local genesis of most social movements is one reason lawyers must rely on activists to craft solutions. Lawyers must consciously resist the urge to control the narrative. Rather than approach lawyering through a lens of paternalism, movement lawyers must seek to empower communities and participants in the movement. Unsurprisingly, the most effective solutions have come from the people affected by the social problems movement lawyers try to fix. Empowerment, in this context, means “the ability to shape the world.” The organizer’s ultimate goal is to transform power; this occurs both by building up communities and subtracting power from existing structures.
Beyond Public Interest Law
The typical story of the lawyer-client interaction goes something like this: A problem exists and the lawyer is called in to push and pull within the legal system. The client and lawyer develop a strategy based on a discrete set of facts and understanding of the law. A trier of fact applies the law and makes a decision. In this paradigm, there is a clear winner and loser.
Public interest law focuses on how to best serve those not served by the private legal market. A common problem for public interest lawyers is early career burnout. This disillusionment can result from simply being overworked. Alternatively, it can arise when the lawyer realizes that the problem they are passionate about fixing is too large to manage—or, further, that there is indeed no legal solution to the problem. Unfortunately, even legal advocates committed to social justice typically lack understanding of the full picture of how change occurs. The same tale can often be told of lawyers working on behalf of social movements.
Lawyers at public interest firms or private law firms that assist in public interest cases typically engage with law and policy in predictable ways. Several realities should call us to question public interest law as practiced. Here, I want to focus on legal advocates’ tendency to seek cases that are interesting, challenging, or seen as “winners” on behalf of an individual or class. This restricted approach has undoubted advantages; however, the concern with this approach arises for two reasons. First, this strategy limits the population that directly benefits from legal victories. Impact litigation can result in changes to the law or policies; it is also susceptible to criticism for prioritizing legal outcomes over real social change or for benefiting a narrow group at the expense of a wider marginalized group. Second, conventional public interest law is constrained in its ability to shift the balance of power in society. Social movements are focused on structural changes and altering power dynamics—setting up a case to benefit a discrete population arguably reproduced social domination by compounding the lawyer-marginalized population dichotomy. When lawyers and organizers operate within a framework of trying to achieve either incremental change or sweeping reform it is unlikely that any meaningful change will occur. Thus, a new methodology is needed.
Movement Lawyer Paradigm
Changing law and/or policy in meaningful ways requires coalitions. The “do no harm” approach to public interest lawyering is insufficient. Lawyers cannot simply stay out of the way of organizers and arise when necessary—for example, to get an organizer out of jail. Movement lawyering demands a willingness to commit to a community’s message and to strategize around that message, even when that commitment will lead to uncomfortable situations. Jacinta Gonzalez framed the ideal movement lawyer’s work as having three strata. First, the movement lawyer must do the work mentioned above—get organizers out of jail to enable the movement to continue. Next, they must work on strategy with the organizer; strategizing can empower the movement for the obvious reason that it allows the community to make high-level decisions, but also because it can alter the power relationship. For example, Jessica Bansal explained that litigation processes—e.g. depositions and document discovery—are laden with opportunities for lawyers to shift power to clients/communities. Third and finally, effective social movement lawyers should be critical of existing legal frameworks.
Gerald López introduced “rebellious lawyering” as a counter to the hierarchical system imposed by traditional public interest lawyering. Under this view, the needs of the community are best served by a collaborative model. In practice, because of the tensions explored above, it’s rare that collaboration is effective. “Community lawyering” breaks from convention by instituting a new form of representation. Rather than merely assisting individual clients with discrete issues, community lawyering rejects “atomized”, “depoliticized,” and results-oriented representation in favor of a process-oriented legal strategy that stresses the importance of client involvement.
No matter which term is used, the goal of this different paradigm is to empower social transformation. Jennifer Gordon’s use of “law in the service of organizing” best summarizes the speakers’ views. In this model, relationships are of paramount importance. The strategies and objectives should come from the community; the lawyer should merely facilitate changes the community seeks.
Power is the currency of social change. Organizers build power through relationships. At the heart of every “successful” social movement is a commitment to this approach. Lawyers working in social movements must be aware of this reality, foreign as it may seem compared to conventional legal training. Professors López and Ashar use “regnant lawyer” to describe the propensity of even the most well-intentioned lawyers to think that their training gives them the necessary expertise. Rather, the law should be one tool among many.
Law School Training
It’s not usually the business of law schools to train movement lawyers. Even in “public interest” oriented law schools, we rarely observe non-litigation approaches to social change. These students, like myself, likely entered law school with a notion of how their training would enable their efforts to help marginalized clients and communities. However, the paradigmatic law school experience offers few opportunities to truly engage in a dialogue—much less practice—about what it means to be a legal advocate for social change. Yet, individual students and faculty can take steps to aid those students interested in movement lawyering. Bill Quigley has written about four explicit examples, each of which was also highlighted by Jessica and Jacinta in our conversation.
Quigley proposes first that faculty can help students navigate existing doctrine to find contradictions, tensions, and uncertainty that open the door to legal advocacy. It’s imperative that social movement lawyers have substantive legal knowledge and can apply that knowledge in situations that require creative problem-solving. Second, faculty can remind students to be “critical and conscientious subjects.” In this view, he stresses that the lawyer’s relatively privileged status in society should be used not to divide the lawyer from the community, but to enhance the movement’s efforts. Third, faculty can incorporate social movement history and critical legal theory into their teaching, both in formal and informal settings. Finally, Quigley urges faculty and students to remember the power of stories. Engaged listening provides an opportunity for community members to explain the injustice they feel—both empowering the individuals and providing the lawyer with information that can later be useful in helping craft the movement’s narrative.
Other possibilities for teaching the new paradigm of lawyering include simply providing opportunities to observe movement lawyering—whether through a clinical or pro bono experience—and training on how to communicate legal concepts effectively. These two actions help students develop a sophisticated understanding of what victories movements seek and how these victories can practically be obtained.