Home » Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 3 – Ascanio Piomelli, Artika R. Tyner, Anthony V. Alfieri, Ellen M. Marks, Rebecca Sharpless

Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 3 – Ascanio Piomelli, Artika R. Tyner, Anthony V. Alfieri, Ellen M. Marks, Rebecca Sharpless

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Excerpted from Ascanio Piomelli, APPRECIATING COLLABORATIVE LAWYERING, 6 Clinical L. Rev. 427 (2000):

“What is different about the new scholarship is its call to involve clients in the actual implementation of remedial strategies. Clients not only get to decide what their lawyer will do, but they participate in carrying out those decisions, often by speaking out on their own behalf and/or working with community groups. These theorists urge attorneys not simply to work for clients, but with clients and with their lay allies.  Perhaps the most concise capsulization is López’s.…”

“In this idea–what I call the rebellious idea of lawyering against subordination–lawyers must know how to work with (not just on behalf of) women, low-income people, people of color, gays and lesbians, the disabled, and the elderly. They must know how to collaborate with other professional and lay allies rather than ignoring the help that these other problem-solvers may provide in a given situation. They must understand how to educate those with whom they work, particularly about law and professional lawyering, and, at the same time, they must open themselves up to being educated by all those with whom they come into contact, particularly about the traditions and experiences of life on the bottom and at the margins.  Because of their emphasis on a joint problem-solving partnership with clients, I refer to these scholars as advocates of collaborative lawyering. As with any naming decision, this choice of term both illuminates and obscures….”

“Gerald López’s Call to Recognize and Tap the Problem-Solving Talents of Lower-Income People and Their Lay Allies…. Intelligibility. Gerald López’s work is consistently readable and accessible. In Lay Lawyering, he explicates cognitive theories of how we understand and navigate the world by means of stories and he applies these theories to a seemingly mundane situation of talking someone into ceding a taxicab ride. In Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, he reveals his vision of lawyering by providing extended descriptions and commentary on fictionalized lawyering examples. Throughout his work, López demonstrates a remarkable facility for conveying complex ideas in almost conversational prose–a skill that leads some readers to miss the sophistication of his insights. With the exception of less than a handful of word choices, López’s writing is immediately accessible to an immensely wide audience. The contrast with Alfieri’s prose could not be starker; nor is it accidental.”

“At the core of López’s vision is the notion that lawyering fundamentally entails persuading others and that persuasion is a central aspect of everyday life. As we interact with others and seek their assistance in matters small and large, we all develop persuasive–i.e., lawyering–skills. Defining lawyering as the practice of telling stories designed to persuade others to act in a desired fashion, López emphasizes the continuities between what professional lawyers do and what lay people do on a daily basis. Storytelling is not merely an expert tactic of a professional lawyer or the prized tool of outsiders, but the central means by which all of us persuade others and make sense of our lives.”

“López’s attention to how we persuade uncovers the significance of understanding the audience(s) to whom we tell, pitch, sell, or spin stories. What we find persuasive is far less helpful instrumentally than what our audiences find compelling. Detailed knowledge of and insight into the actors and audiences we seek to persuade is therefore critical to success. A second key element of his vision is that the ‘subordinated’ usually have expert knowledge of their ‘superiors’ and have developed skills for ‘handling’ them. Survival requires that lower-income people develop such understanding and the ability to anticipate the wishes and reactions of those ‘superiors.’ López urges lawyers to respect and tap such knowledge and skills and to endeavor to develop their own analogous ‘feel’ for how things work in communities and institutions. Rebellious lawyers can do so primarily by honing their listening skills and powers of observation.”

“López is not saying, of course, that lay people are immediately ready to handle court hearings or negotiation sessions or to draft contracts. He acknowledges that lawyers have specialized knowledge and highly refined skills. Those skills can and do help clients; lawyers are not predestined to wreak interpretive violence on client-victims.”

“….López does not argue that lower-income people’s knowledge and stories are better than those of lawyers. In López’s vision, both groups are essential to the struggle ‘to fundamentally transform the world.’ To make such change, López explains, lower-income people and their attorneys ‘do not want simply to add to each other’s knowledge, a bit of this and a bit of that coexisting easily. Instead, they desire to challenge what each knows–how each gained it, what each believes about it, how each shares and uses it.’ Rather than emphasizing their fragility… or placing lower-income people on a pedestal… López urges lawyers to engage their clients as true equals, worthy of respect but also of caring confrontation.”

“He calls for a collaboration of ‘co-eminent’ practitioners, by whom he means lawyers, clients, and other potential problem-solvers, such as community activists, organizers, media, administrators, policy makers, researchers, and funders. The existence and relevance of these other lay problem-solvers is a third core element of López’s vision. In his view, careful investigation of lower-income and subordinated communities reveals many individuals, groups, and organizations working to challenge subordination.”

“….[A]ttacking professional identities with critical messages of incompetence or insensitivity is unlikely to persuade many practitioners to adopt new models and methods. Although López states at several junctures that rebellious practice is often more an aspiration than a consistent reality for even its most committed adherents, his overall message rings in many readers’ ears as a blanket indictment of an almost monolothic Regnant Practice…..López puts most practitioners and their sympathizers on the defensive, scurrying to dodge criticisms which, even if born from street-level experience, are lobbed from what some may dismiss as a lofty and comfortable academic perch.”

“There is merit in this critique. Nonetheless, the critique may be seen to impose a norm of gentility and modulated persuasion that may stifle ground-breaking efforts to challenge prevailing paradigms. Effecting change often requires boldly stated views in order to command attention–statements that may sometimes (or to some people) appear strident or overstated. Such a forceful approach often creates room for more temperate and moderated presentations of a new paradigm. Those who are perceived as extremists are often indispensable in producing the eventual reforms commonly attributed to more ‘palatable’ reformers.”

“We need to tread cautiously, lest our search for constructive, respectful dialogue eliminate all space for passionate, emotional debate. A core bond we share is a commitment to challenging injustices we perceive. We should not lose sight of a central injustice that advocates of collaborative lawyering seek to eliminate: the tendency of predominantly white, middle- and upper-middle-class lawyers to act as if their disproportionately of-color and female lower-income clients are largely incapable of and irrelevant to efforts to change the conditions of their lives and the larger structure of our society. If we are to do justice to our values and our clients, we need to be willing to examine our practices honestly, whether the prodding to do so is gentle or accusatory.”

“Locus of Attention. The third critique–that the scholarship narrowly focuses on small-scale, one-on-one interactions between individual lawyers and individual clients and on the power lawyers exert over clients in the ‘lawyer-client microworld’–is not true of López’s work. The critics fail to appreciate a central element of López’s vision: that the relationship between a lawyer and an individual client should not be an exclusively inward-focused ‘community of two.’ The critics ignore his insistence that lawyers strive to connect themselves and their clients with outward-oriented activities and activists. Rather than advocating a retreat into an isolated, private ‘microworld,’ López calls for extensive connection with the larger world and with social and political efforts to change it. Unlike Alfieri, López does not simply focus on the violence or oppression that occurs within what he considers regnant lawyer-client relationships; López regularly directs our attention to collective efforts to challenge subordination. Thus, he writes: ‘For all the importance of their immediate relationship, clients and lawyers work inescapably within a network of problem-solving practitioners. Every situation laces their collaboration into the efforts of other problem-solvers– the client himself, his family, friends, neighbors, community activists, organizers, public employees, administrators, policy makers, researchers, funders. Moving the world in the desired direction often depends on the identification and effective coordination of these practitioners.’”

“A central element of rebellious practice is a commitment to engage in group problem-solving efforts and collective attempts to challenge elements of the status quo. Rather than ‘wait[ing] around for ‘big’ chances to change things in a ‘big’ way all at once–the kinds of chances and changes that tend to attract much attention, and about which our culture teaches us to dream,’ lawyers should ‘regard every form of group work as important to mobilization’ and should ‘consider educational aims as central to every form of mobilization.’”

“When he looks at subordinated communities, López sees many individuals and groups actively struggling to challenge their social, economic, and political subordination. Wherever groups of lower-income people meet or can be brought together, he sees opportunities for rebellious advocates to nurture and further this resistance by ‘train[ing] groups of subordinated people to represent themselves and others,’ an activity he calls ‘teaching self-help and lay lawyering.’ Rather than assuming that lawyers are always best suited to ‘represent’ clients and that legal arenas are always the most appropriate forums for solving problems, López urges rebellious lawyers to remain open to collaborating with lower-income individuals, groups, and institutions and to exploring social and political problem-solving approaches.”

“In this regard, López’s vision transcends any individual attorney-client relationship. Indeed, if any vision is self-contained enough to be labeled a ‘microworld,’ it may be the traditional, non-collaborative one in which lawyers’ expertise and orientation are almost exclusively confined to the ‘attorney-legal system microworld.’ In López’s vision, lawyers must be skilled legal technicians and engaged public citizens and activists. They must expertly navigate and integrate many worlds: the legal, interpersonal, social, and political.”

“Utility in Challenging Institutional and Structural Power. The final critique– that the scholarship fails to attend to structural and institutional explanations of clients’ oppression (other than lawyer-domination)–also is inapplicable to López’s work. Indeed, López urges progressive lawyers and law schools training them to study this very issue systematically and to immerse themselves in their own and other disciplines’ analyses of the topic.”

“He explicitly states that it is a ‘regnant’ failure for lawyers to ‘have only a modest grasp on how large structures–regional, national, and international, political, economic, and cultural–shape and respond to challenges to the status quo.’ Similarly, he chides the failure to investigate ‘how formal changes in the law penetrate the lives of subordinated people.’ He prods progressive lawyers and law schools to value and intimately familiarize themselves with the study of women ‘in all their heterogeneous complexity,’ the study of people of color, gays and lesbians, and more generally, the study of power, ‘quiescence and rebellion,’ economic democracy and development, the secondary labor market, and cultural production and identity.”

“López urges rebellious lawyers to attend to ‘international, national, and regional matters” in their own right and to understand “their interplay with seemingly mundane local affairs.’ He calls for lawyers to develop detailed information on both the trees and the forest, stressing ‘the importance of understanding the political nature of neighborhoods as well as the politics of multinational decision-making.’”

“Whether we deem the path he identifies for challenging institutional and structural power as likely to be effective or not turns on our understanding of what facilitates and frustrates social change. To suggest that López is inattentive to these issues again fundamentally mischaracterizes his work.”

“Framed this way, legal stories, arguments, and institutions are merely some of the many possible choices for lawyers and clients to consider. We must decide: (1) what results to seek; (2) which potential actors (either individuals or institutions) to seek to persuade; (3) what stories, arguments, or actions are best calculated to persuade them; and (4) who is best situated to tell those stories, make those arguments, or take those actions. In this model a lawyer is but one of many possible storytellers, argument-makers, and action-takers. For the attorney interested in challenging institutionalized power, two choices are often critical: whom to persuade and who might most effectively persuade the relevant individual or group. The answers to these questions are often plural, with the most effective strategies involving multiple targets and multiple advocates telling multiple stories.”

 

 

Excerpted from Artika R. Tyner, PLANTING PEOPLE, GROWING JUSTICE: THE THREE PILLARS OF NEW SOCIAL JUSTICE LAWYERING, 10 Hastings Race & Poverty L. J. 219 (2013):

“Rebellious lawyering provides a theoretical framework for action research and fostering cooperative, collaborative processes. Rebellious lawyers’ vision of social justice requires proactiveness in effectuating social change by reflecting and ‘usher[ing] in the world we hope to create.’  In envisioning changing the world as we know it, one’s imagination can be unleashed.  The rebellious vision supports a concerted organized effort against subordination, based upon factors such as: race, gender,  socioeconomic status, and age.  Rebellious lawyers work diligently to ‘dismantle those social structures that reinforce hierarchy and injustice.’  Rebellious lawyering recognizes the ability of the rebellious lawyer and clients/communities to work together to realize a vision of equality and justice. Rebellious lawyering moves beyond working for a client to working collaboratively with a client and allies.”

“The ideology of rebellious lawyering is based upon the premise of fostering cooperative and collaborative processes. Rebellious lawyers integrate themselves and their clients into ‘a large network of cooperating problem-solvers.’ Traditionally, a lawyer is the sole problem solver who has the capacity and training to frame the issues and identify the legal problem. The lawyer serves as an expert who asks questions to confirm his/her course of action and maintain his/her power. To that end, traditional lawyering is non-participatory and isolated given that lawyers envision themselves as ‘self-perceived visionaries who make decisions for others by cutting themselves off from nearly all that surrounds them.’ Within this model of lawyering, community members and clients play a very limited role by simply allowing the lawyer to solely formulate solutions.”

“Contrary to the traditional role of lawyers as experts, López envisions rebellious lawyering as collaboration between co-eminent institutions and individuals where each learns from each other. Each participant in this process has the opportunity to learn and grow, in addition may offer a unique, diverse perspective in the problem solving process. The process of problem solving begins with storytelling because stories create a sense of a shared experience and enable us to live with a sense of solidarity. Stories are the framework for creating a social justice-oriented narrative since they aid in identifying the relevant audience, telling the story of a lived experience, and compelling others to act to bring forth the desired change.”

“Through storytelling, the diverse experience of collective subordination facilitates social change and creates shared space for ongoing dialogue. By sharing these stories, the lawyer and community seek to build key alliances and establish collaborative networks that challenge others to change the world to mirror the one they desire to see.”

“In this idea–what I call the rebellious idea of lawyering against subordination–lawyers must know how to work with (not just on behalf of) women, low-income people, people of color, gays and lesbians, the disabled, and the elderly. They must know how to collaborate with other professionals and lay allies rather than ignoring the help that these other problem-solvers may provide in a given situation. They must understand how to educate those with whom they work, particularly about law and professional lawyering, and, at the same time, they must open themselves up to being educated by all those with whom they come into contact, particularly about the traditions and experiences of life on the bottom and at the margins.”

“This perspective acknowledges the role of lawyer as a problem solver in partnership with communities to shape problem-solving around the community’s experiences and build shared knowledge.  It also recognizes the importance of working with other professionals to problem solve together and discover new ways for promoting social justice.”

“Additionally, rebellious lawyering initiates and compels action. Community members and the rebellious lawyer work together to realize their vision of social change: communities they call their own. This demonstrates a shared responsibility to create change and enact ownership over the change process. Each is ‘standing shoulder to shoulder’ while engaging in problem-solving and community-building. Traditionally, law schools do not provide future lawyers with the tools to engage in this type of social justice lawyering. These tools include learning how to aid in building and sustaining coalitions, help imagine and orchestrate strategies for pursuing desired goals, understand the theoretical political frameworks that they challenge, and pursue visions of social justice.”

“Based upon the principles of rebellious lawyering, López developed the Center for Community Problem Solving (‘Center’) in 2003. The Center partners with marginalized populations (immigrant, low income of color communities) to problem solve around issues with political, economic, social, health, and legal elements. The goal is to foster participatory democracy and equal citizenship. The Center draws together the strengths of problem solvers from all walks of life: business owners, service providers, teachers, artists, policy officials, lawyers, and doctors to develop practical solutions for problems facing the communities. The Center has the following key fundamental values:

(a) The Center seeks to collaborate with those who live and work in low-income communities, communities of color, and immigrant communities in order to share knowledge of how to address present challenges, identify resources, and develop useful strategies for change.

(b) The Center connects those with problems with service providers who can help to address these problems.

(c) When problems remain unaddressed after making the requisite connections outlined above, the Center seeks additional resources to fill this void.

(d) The Center monitors and evaluates progress in the problem solving phase.

(e) The Center shares information gathered from their program evaluation processes to aid in developing more effective strategies for exercising collective problem solving.”

“López’s rebellious lawyering theoretical framework challenges lawyers to engage in problem solving and foster community connections. This will aid in remedying social problems facing the community.”

 

 

Excerpted from Anthony V. Alfieri, PRACTICING COMMUNITY, 107 Harv. L. Rev. 1747 (1994):

“What “counts,” López asserts, is understanding ‘how things work and how to get things done.’ Acquiring this understanding confers ‘wisdom’ and ‘status’ both on professionals and on lay people. For this reason, challenging the regnant idea is controversial. At stake is the authority to know, to interpret, and to speak the truth about the sociolegal world. It is the courage to contest and to reimagine the truth that drives López to transform the idea of regnant lawyering.”

“To López, truth is neither universal nor given. Indeed, there is no truth that ‘makes sense of everything in the world.’ Rather, truth is contingent, negotiated, and partial. It arises out of collaboration between lawyers and clients working jointly as co-eminent practitioners in local contexts. Lawyers seeking this provisional truth recognize the value of a client’s practical knowledge – the ‘know-how inevitably at work in each and every person’s effort to get by day to day.’ They also realize that such knowledge may lie ‘outside’ their professional ‘understanding of the social world.’ Nonetheless, they strive to learn about alternative worlds and ways of knowing and thus renounce the regnant privilege to proclaim absolute truth. For López, this renunciation is the well-spring of rebellious lawyering.”

“López calls his aspirational vision of practice ‘rebellious lawyering.’ Both the ‘look’ and ‘feel’ of this practice are ‘different.’ The difference, experienced equally by lawyers, clients, and communities, turns on process as well as result.”

“In López’s vision, to ‘lawyer rebelliously’ is to ‘ground [advocacy] in the lives and in the communities of the subordinated themselves.’ This grounding requires advocates to connect legal and ‘non-legal’ problem-solving approaches, to collaborate with others in strategic planning, to remedy particular and general manifestations of ‘social and political subordination,’ to build and join coalitions, and to appreciate the regional, national, and international dimensions of ‘local affairs.’ To satisfy these requirements, López urges the development of ‘sensibilities and skills’ tailored to the ‘collective fight for social change.’”

“López treats legal knowledge as merely ‘one practical knowledge among other practical knowledges.’ This even-handed treatment reduces the “estrangement between lay and legal cultures’ and prompts the recognition that clients, like lawyers, possess ‘special practical know-how’ about ‘how things work and get done.’ For López, the knowledge possessed by lawyers, other professionals, lay advocates, and clients consists of ‘a set of stock stories and storytelling techniques.’ Because these problem-solving techniques are widely used, lawyers are ‘not necessarily better able’ than clients or other activists to serve as legal representatives.”

“Recasting the meaning of client identity, difference, and competence requires lawyers to experiment with “different cultural interpretations” of the same individual or collective experience. Part of that experiment entails addressing client subjectivity. Contrary to the conventional myth of dependency, a poor client is an autonomous subject capable of both accommodating and resisting the commands of sociolegal actors: lawyers, caseworkers, judges. Accommodation and resistance are often intertwined in the same act. A client, for example, may agree to abide by lawyer-scripted trial testimony, yet deliberately break from that script for normative or strategic reasons. In the shadow of this ambiguity, an individual client’s voice multiplies, her narratives compete, and her stories conflict.”

“The multiplicity of client voice, narrative, and story demands the practice of ‘bicultural and bilingual’ translation. This method of translation, López explains, moves ‘in two directions, creating both a meaning for the legal culture out of the situations that people are living and a meaning for people’s practices out of the legal culture.’ Meaning derives from understanding ‘the client’s experience of the situation” given her own “categories and characterizations’ of daily living. For López, getting a ‘feel’ for the client’s situation – what she ‘thinks, feels, needs, and desires’ – is pivotal. By getting the feel of a ‘client’s social (not just legal) situation,’ lawyers may be able to acquire fluency in discourses of difference and to construct client identity in terms of problem-solving and managerial competence.”

“López hears talk of client competence and incompetence echoing throughout law and lawyering. He defines law as ‘a set of stories and storytelling practices that describe and prescribe social reality and a set of conventions for defining and resolving disputes.’ Lawyers employ a variety of discourses that describe law (constitutions, statutes, regulations, and judge-made decisions), legal institutions (courts and bureaucracies), and sociolegal relations (lawyer-client, lawyer-state, and client-state). In private offices, the discourses emerge in interviewing, counseling, and negotiation. At trials, they appear in opening and closing statements, direct and cross examinations, and evidentiary objections. On appeal, they come out in oral argument. At public hearings and community education forums, they unfold in testimony and in lectures. Lawyers recast their oral pronouncements in written forms: letters, memoranda, briefs, and press releases. Both oral and written pronouncements constitute stories. Shaped by law and institutional need, the stories make claims about the world subordinated people inhabit, its truths and necessities.”

“To López, everyone possesses lawyering and storytelling skills that can alter social arrangements and remedy disputes. It is the job of lawyers to recognize how often subordinated people deploy ‘story/argument strategies’ to contest institutionally assigned roles and relations of dependency. Once lawyers realize the force and regularity of that deployment, López asserts, they must help clients understand how to transfer their everyday living skills to legal advocacy.”

“The socially constructed reality of client dependency and incompetence shifts with the content of lawyer stories. According to López, lawyer ‘stock and improvised’ stories and arguments can ‘help establish meaning and distribute power.’ Consequently, storytelling has the potential to transform the meaning of client difference and identity, and to reallocate lawyer-client power to manage the advocacy process.”

“López challenges the regnant story glorifying lawyer preeminence and power. The differences in lawyer-client authority flowing from that stock story, he warns, ‘disfigure’ individuals and ‘distort’ social arrangements. To realign lawyer-client authority, López recommends reversing the ‘marginalization’ of clients’ ‘local knowledge.’ Reversal hinges on believing clients to be ‘capable’ moral agents equipped ‘with a will to fight, and with considerable experience in resisting and occasionally reversing subordinated status.’ Treating clients as capable fighters in the struggle against subordination affirms a practical expertise that complements lawyers’ knowledge. The inability of lawyers and clients to uncover this complementary potential is in part a function of unequal institutional roles and relations.”

“Within legal institutional contexts, the imperatives of administration and adjudication dictate conventional roles and relations of practice. For advocates in civil rights and poverty law contexts, the received tradition of practice constructs clients as victims. This construction reduces clients to powerless and pathological objects.”

“López links client objectification to the tendency of legal institutions to be ‘hostile’ to and ‘often systematically ignorant’ of client needs. The institutions pass on ‘structural constraints’ and engender ‘specific adaptations.’ Implanted within these social constraints and adaptive strategies are ‘practical moments’ of rebellion. Although ‘unpredictable,’ those moments provide the ‘central opportunities’ for rebellious lawyering.”

“López contends that lawyers and clients can transform routine acts into opportunities for collaborative problem-solving in which skills are combined and power is shared. In advocacy, collaboration may generate lawyer-client, client-client, and client-community alliances. Collaboration is an empowerment or enabling strategy that redefines traditional lawyer-client roles, reorganizes divisions of legal and nonlegal labor, and reallocates the authority to designate and to execute advocacy tasks.”

“López imagines collaboration as an experimental and ‘constantly reevaluat[ed]’ process involving lawyers, clients, and lay advocates. Because that process ‘can relocate and blur the lines between self-help, lay lawyering, and professional lawyering,’ internal tensions may ensue. Mitigating those tensions demands ‘forgiveness and patience,’ as well as a sense of the ‘practical and moral limits’ of the process itself. This sense of limits intrudes upon López’s vision of rebellious lawyering, reminding us that lawyers and clients ‘remain divided’ in spite of good faith efforts at collaboration.”

“López views lawyer-client collaborative problem-solving as part of a gradual, integrated move into ‘a larger network of cooperating problem-solvers.’ This network avoids the professional and political ‘separatism’ that plagues progressive lawyering, and thereby, allows practitioners to pursue ‘collective’ problem-solving through the teaching of ‘self-help and lay lawyering’ skills. Teaching self-help and lay lawyering, López concludes, enables ‘public institutions and professional service providers [to] help people help themselves.’”

“Bridging the ideas of regnant and rebellious lawyering demands a strategy of reform. For López, the core of this strategy resides in the ‘familiar practices’ of daily lawyering, for it is the ‘small, everyday details’ of practice that offer the greatest chance of reorienting the traditional sensibilities and skills of advocacy. López belongs to a community of lawyers, scholars, and teachers embroiled in debate over the best methods of bridging theory and practice to reform progressive lawyering. Unlike critical scholars of the last two decades, the theoretics of practice community espouses an explicitly normative goal: to foster individual and collective client acts of self-determination in order to broaden social and economic forms of democracy. To reach this goal, López and others have disassembled the lawyering process, challenging not only lawyers’ epistemological, interpretive, and linguistic practices, but also their basic education and training.”

“The teachings of legal education and training, amplified by the imperatives of law and legal institutions, compel progressive lawyers to adopt a heroic stance toward communities that condemns them as outsiders. The centrality of lawyer heroism in the progressive canon inhibits experimental forms of lawyer-client collaboration and, thus, frustrates the realization of lawyer-client community. Under the progressive canon, neither lawyers nor subordinated people hold out claims to community. The absence of such claims stems from lawyers’ lack of connection to client identities, narratives, and histories. To make these human connections, lawyers must relearn their habits of knowing, thinking, and speaking.”

“Lawyers must relearn their own convictions. We must learn that our professional autonomy is linked to the autonomy of others and that our claims of neutrality are false. We must learn that our cognitive judgment is impaired, not objective, and that our practical reasoning ignores alternative sources of knowledge. We must learn that our ability to empathize with clients and to translate clients’ stories into legal discourse is limited by hierarchy.”

“Furthermore, lawyers must relearn the sociolegal world. We must learn that a client’s speech acts – whether in the form of uncomfortable answers to interview questions, vague assent to counseling options, or rambling testimony at trial – are rhetorical strategies of accommodation and resistance that enable her to maneuver within relationships and institutions under the cover of ambiguous and sometimes inconsistent stories. We must learn to enlarge the discourses of law and legal institutions to fit, rather than silence, these stories. And we must learn to redefine institutional roles and relations to permit clients and communities to collaborate in telling their stories, even if the bridges of collaboration are makeshift and short-lived.”

“To be sure, the critical evaluation of our convictions and our mapping of the sociolegal world is unlikely to bridge fully the practices of regnant and rebellious lawyering. The legal consciousness and sociolegal practices of regnant lawyering are historically entrenched in law schools, law offices, courts, and the streets. Neither passionate nor persuasive entreaties will overturn them, but instead only the day-to-day struggle of people who suffer their indignities, allied with those who find such suffering intolerable.”

“López inspires those who labor on behalf of subordinated communities to rethink their efforts. Rethinking begins in remembrance – for me, the remembrance of chance meetings outside an old New England church and inside an airless, New York City storefront. Some say that to look for the loss or redemption of community in these meetings is misguided. To look for some meaning, for some lesson to be learned, is not.”

“What is the lesson here? The lesson is that lawyers working for or with subordinated people in impoverished communities need to learn where they stand. This means learning from the people who live in those communities; it means learning that lawyers stand divided from the communities they represent. The man in New England and the woman in New York City taught me where to stand when confronted by divisions of class, gender and race. Although our meetings hardly mark the deliverance of redemptive community, neither do they signal the hopeless resignation to loss.”

 

 

Excepted from Ellen M. Marks, ORDINANCES TARGETING THE HOMELESS: CONSTITUTIONAL OR COST-EFFECTIVE?, 19 Wash. & Lee J. Civil Rts. & Soc. Just. 437 (2013):

“Once an individual has legal representation, there are various theories on how lawyering can be truly effective for changing social policy.  Though there are many techniques to lawyering, this Note will explore two very different approaches. The first, ‘rebellious lawyering,’ takes a reformist approach….”

“The first approach, ‘rebellious lawyering’ or ‘regnant lawyering’ requires that legal work be

‘anchored in the world to help change.’ Rebellious lawyering includes work with women, racial and sexual minorities, the poor, and the elderly. It builds on an obligation to empower clients through mobilization, organization and deprofessionalization. Rebellious lawyering seeks to change the inefficacy of intrasystemic remedies to achieve meaningful change in the lives of poor clients. This work must be grounded in the communities of the subordinated themselves. Progressive lawyers who care about social justice practice rebellious lawyering. Their work often includes cooperation and collaboration with a network of professionals and problem-solvers.” (citing Rebellious Lawyering (1992)).

“The concept of rebellious lawyering was helpful with Mr. Smith’s various claims. Mr. Smith is an archetype for homeless persons around California, and even more generally, the United States. Fortunately, Mr. Smith had a lawyer to help him file his claims and defend himself against an overly broad stay away order. In his filings, Mr. Smith’s lawyer argued against the use of overly broad Stay Away Orders and the targeting of homeless persons. By aiming not only to help Mr. Smith, but to improve the lives of many homeless persons in San Diego as well, Mr. Smith’s lawyer practiced rebellious lawyering.”

 

 

Excerpted from Rebecca Sharpless, MORE THAN ONE LANE WIDE: AGAINST HIERARCHIES OF HELPING IN PROGRESSIVE LEGAL ADVOCACY, 19 Clinical L. Rev. 347 (2012):

“In Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, López propounds a vision of lawyers as collaborators with nonlawyers in grassroots organizations to bring about social change. He does so through a typology of social justice attorneys, counterposing ‘regnant’ lawyers against ‘rebellious’ ones. López relates the journey of a fictional young, recent graduate from law school, Catharine, who is searching for role models amongst progressive lawyers. We learn about Catharine’s impressions of Teresa, Abe, and Jonathan (the ‘regnant’ lawyers), as well as Sophie and Amos (the ‘rebellious’ lawyers).”

“Teresa is a brilliant and hard working impact litigator and media strategist at a nonprofit law office who is relatively unconnected to her clients, whom she handpicks for her legal cases, and to the community. Abe is a private attorney who represents unions in a traditional fashion because he believes in the labor movement even though he is critical of some of the ways in which union leaders sometimes treat their members. Jonathan is a committed housing attorney who helps low-income people at a legal services office, but feels ‘overwhelmed’ by how many people have housing problems. He tries to help as many people as he can, declining help to those without a legal defense and spending only as much time needed with the client in order to prepare the case. Jonathan seems to have a ‘low opinion about the good sense or intelligence of some of his clients’ and typically does not find it efficient to involve them in the preparation of their cases. Regarding links with the community, Jonathan is only minimally aware of ‘social service groups in the community or with other people in the community who are interested in housing issues.’ He prefers to ‘solv[e] poor peoples’ problems’ through the legal system.”

“Teresa, Abe, and Jonathan collectively represent the ‘regnant’ mode of lawyering. Regnant lawyers have faith in the legal system as a means of fighting subordination and engage in ‘formal representation’ defined as service or impact work, viewing themselves as the primary ‘problem-solvers’ and as ‘aesthetic if not political heroes.’ Although regnant lawyers may engage in community education, they have only loose connections with community groups and understand poor people as facing numerous and intractable barriers to helping themselves.”

“The regnant attorneys stand in contrast to ‘rebellious’ lawyers, as epitomized by Sophie and Amos. Their practice vision shares features with the older tradition of law and organizing, discussed above, in which legal solutions are understood as limited and lawyering must be linked with broader movements for social change composed mainly of non-lawyers. Both Sophie and Amos spend a considerable amount of time using nontraditional lawyer skills in their collaborations with community groups. Sophie lives in the neighborhood where she works, which Catharine believes ‘appears to make all the difference in the world.’ Sophie’s projects include developing a lay lawyering model to help people apply for lawful immigration status. Although she sometimes uses litigation strategies, she ‘systematically tries to encourage local people to share experiences and to develop know-how that will enable them to better anticipate and address their needs over time.’ Sophie is always on the lookout for established or emerging community groups with which she can work.”

“Amos takes a similar approach to lawyering as Sophie. Amos, an ‘old home boy,’ grew up in the community where he is now the coordinator of a nonprofit organization (not a legal service offices) dedicated to ‘respond’ to the community’s ‘frustrations over the (dis)array of resources and assistance available for children and families.’ In learning about how to intervene best to bring about the coordination of services, Amos seeks to learn from those ‘at the ground level.’ Like Sophie, he views problems faced in the community as not necessarily legal problems amenable to a legal solution and seeks to understand problems from the perspective of those affected by them.”

“López’s powerful vision of small scale, grassroots movements for change in which lawyers work in egalitarian collaboration with community groups has resonated with many progressive scholars and lawyers over the last two decades. Although some scholars have been critical of rebellious lawyering, many others have sought to identify their visions of progressive lawyering with the ‘rebellious’ label (or as not “regnant”). Gary Bellow, for example, expressly identified his concept of political lawyering with López’s ‘rebellious’ archetype. Echoing Stephen Wexler’s analysis from 1970, Bill Ong Hing has endorsed the ‘rebellious’ concept while arguing that “prevailing lawyering practices disserve lower-income clients” by subordinating them and making them unable ‘to act against their own oppression.’”

“López’s analysis is rooted in his experience with legal services lawyering in East Los Angeles, where he grew up. It is tied to a particular time and place and must be understood in these terms. His typecasts are meant to serve as suggested points of departure for self-reflection on the part of progressive practitioners and thoughtful students entering practice. The rebellious/regnant distinction, however, has taken on a life of its own, entrenching itself in scholarship about progressive lawyering over the last twenty years. This phenomenon is a testament to the provocative and inspirational nature of López’s rebellious practice vision. The journey of young lawyer Catharine appeals to progressive lawyers because it promises to fulfill our collective desire to be catalysts for social justice.”

“López’s larger project is to propose a theory of how social change occurs. His rebellious practice vision reflects his view that working at the grassroots level with non-lawyers is more effective than advocating within the legal system. Yet there are limits to how well stereotyped characters can persuade us of any theory of social change. Like most stereotypes, the characters of Teresa, Abe, and Jonathan both reflect and distort reality.  It might be more accurate to say that every practicing progressive lawyer is simultaneously the regnant Jonathan and the rebellious Sophie/Amos.”

“López uses Jonathan, a man, to represent direct service lawyers, even though women perform the lion’s share of direct service lawyering. López’s portrayal of Jonathan as disconnected from, and superior to, his clients may offer only partial truth about direct service lawyering. As discussed… this description may not fully capture direct service lawyering as it is experienced and practiced, largely by women. López’s rebellious/regnant distinction works against constructive dialogue and towards reification of differences among people engaged in a common project. The labels prompt social justice lawyers to either deny that the label applies to them or to identify with the label and feel either inferior or hostile. Labeling may distract progressive lawyers from the task at hand–working towards a more just society.”

 

 

 

 

 

 


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