Home » Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 5 – Martha Minow, Loretta Price, Melinda Davis, Carwina Weng, Sarah O’Rourke Schrup, and Eduardo R.C. Capulong

Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 5 – Martha Minow, Loretta Price, Melinda Davis, Carwina Weng, Sarah O’Rourke Schrup, and Eduardo R.C. Capulong

 

Excerpted from Martha Minow, LAWYERING FOR HUMAN DIGNITY, 11 Am. U. J. Gender Soc. Pol’y & L. 143 (2002):

“Legal services lawyers and clinical legal educators for years have pursued dedicated work on behalf of poor and poorly treated people–and also worked to challenge misconceptions about their clients.”

“Gerald Lopez mobilizes lawyers and law students around the image of the anticonventional, “rebellious lawyer” to question whether traditional lawyering actually empowers or helps marginalized clients.”

“If the funding source is largely governmental, there is a risk that the community development initiative will be undermined by growing dependence on the government or by the subversion of local priorities in favor of those set by Washington.”

“These risks could be tackled through the rebellious lawyering advocated by Gerald Lopez, although his central argument addresses the dangers of lawyers dominating the poor people they mean to serve. Lopez urges public interest lawyers to ‘ground their work in the lives of the communities of the subordinated themselves’ and pursue, alongside their neighbors, collective responses to community problems. One superb example is the Workplace Project, a nonprofit center, which has organized over 200,000 Latino immigrants on Long Island to challenge exploitation at work. The project has used litigation, lobbying for new legislation, work stoppages, media campaigns and the exchange of individual legal services for client participation in the collective project. Community organizing is a key element; lawyers may help or else collaborate with others better trained in organizing.”

 

 

Excerpted from Loretta Price, Melinda Davis, SEEDS OF CHANGE: A BIBLIOGRAPHIC INTRODUCTION TO LAW AND ORGANIZING, 26 N.Y.U. Rev. L. & Soc. Change 615 (2000-2001):

“For lawyers who are convinced that winning a more democratic and equitable social order is only possible in the presence of widespread organization at the grassroots level, the question of how law and lawyering relate to organizing is a crucial one.”

“The phrase ‘rebellious lawyering’ is intended to invoke Gerald López’ widely-read book of that name (a book that touches on the importance of organizing and critiques what López calls the ‘regnant model’ of lawyering for subordinated groups). From the large literature on legal education and legal pedagogy, this section selects a set of materials that bear–some directly, others indirectly–on the question of how law teachers might better prepare future lawyers to work effectively in support of organizing efforts.”

 

 

 

Excerpted from Carwina Weng, MULTICULTURAL LAWYERING: TEACHING PSYCHOLOGY TO DEVELOP CULTURAL SELF-AWARENESS, 11 Clinical L. Rev. 369 (2005):

“Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client’s culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client’s culture. It therefore suggests that multicultural lawyering training should begin with the lawyer’s self-analysis of his/her culture and its influences on the lawyer.”

“[S]uggestions to improve client-centered lawyering also draw on the theory of rebellious lawyering and theoretics of practice to change the underlying discourse between lawyer and client. With rebellious lawyering, the emphasis is on the client: how the client’s life – including her membership in an outsider group and her group’s history of subordination – defines the legal problem, generates the solutions, and determines the course of action. With this emphasis, the client might more effectively participate as an equal in the decision-making process.”

“Both rebellious lawyering and theoretics of practice describe approaches to bridging the gap – cultural and power-based – between lawyers and clients who are different from each other. Building this bridge is not an easy task. Empathy and active listening may elicit more details from the client, and questioning the premises of the American legal system may help the lawyer consciously to avoid its biases. But the lawyer’s cultural lens will operate automatically to filter this information and to create expectations about the lawyer-client interaction. So, unless the lawyer understands her own culture and the ways it affects her interactions with others, she risks perpetuating the status quo of discrimination.”

“Training in multicultural lawyering brings together the approaches championed by rebellious lawyering, theoretics of practice, and the comprehensive law movement by ‘combin[ing] personal growth with content learning and skill development.’”

 

 

 

Excerpted from Sarah O’Rourke Schrup, THE CLINICAL DIVIDE: OVERCOMING BARRIERS TO COLLABORATION BETWEEN CLINICS AND LEGAL WRITING PROGRAMS, 14 Clinical L. Rev. 301 (2007):

“The incidence and importance of collaboration across law school programs and, in particular, between legal research and writing (LRW) programs and clinical programs have generated increased discussion in recent years. Part of the heightened scrutiny stems from a  mutual dissatisfaction with student performance and experience from the end of the first year and into the final two.”

“Using broad generalizations… differences are defined on the clinical side by a progressive or ‘rebellious’ approach to lawyering that is at odds with the more traditional or ‘regnant’ approach that is adopted in many first-year LRW classes. In addition, collaboration is impacted by other practical barriers including physical separation, status issues, lack of communication, competing demands within the law school, and the reality of how little collaboration presently occurs.”

“Turning first to the concept of client-centered lawyering, one unifying feature of clinical practice is that it seeks to teach students to ‘empower clients to make important decisions at each step of the legal process.’ The client is given autonomy over the case, while the lawyer concomitantly relinquishes control and instead focuses on teaching the student to help the client make decisions that are consistent with the client’s values. Client-centered lawyering thus proposes ‘a relationship that is more egalitarian than is found within the traditional power structure of a paternalistic attorney-client relationship.’ These tenets are tied to the ideal of ‘rebellious’ lawyering, which seeks to empower subordinated clients. Rebellious lawyering is defined by consciously disavowing lawyer-client relationships that disempower the client, investigating novel, even non-legal, approaches to problem solving, and actively collaborating with the client and community professionals to effect social change.’ The combination of client-centered, rebellious lawyering in clinical legal education along with the resurgence of social-justice concerns in clinics, both of which place the client and lawyer together in the decision-making process, has become the pedagogy of choice for many clinicians because it effectively satisfies both their educational missions as well as their ethical duty of client representation.”

“The central impediment to the goal of seamless collaboration between LRW and clinical programs is each discipline’s unique structural development and thus their divergent approaches to teaching and scholarship. Generally speaking, the development of law-school clinics ultimately resulted in teaching methodologies that encapsulate their ‘rebellious,’ public-interest and social-justice origins and commitment to experiential, reflective, and organic learning. LRW programs, on the other hand, which in recent history are guided by learning, discourse and composition theories, teach students prescriptively to write to an audience with specific expectations regarding form, style, structure and voice, which often results in a ‘regnant’ approach to lawyering. Examining the historical development of the programs, their goals, and their teaching methodologies and scholarship shows that there are fundamental pedagogical differences between the disciplines that impact the ability of students to seamlessly integrate learning from each and that inhibit the communication and collaboration between departments that could ease such a transition.”

 

 

 

 

Excerpted from Eduardo R.C. Capulong, CLIENT ACTIVISM IN PROGRESSIVE LAWYERING THEORY, 16 Clinical L. Rev. 109 (2009):

“A contending school of thought sees little problem with lawyers functioning as both technicians and organizers. In his influential book, for example, Gerald López calls for ‘rebellious lawyers’ to be ‘co-eminent’ practitioners with their clients. Instead of a hierarchical attorney-client relationship in which the lawyer always formally represents the client, López envisions a problem-solving, collaborative approach in which the client’s expertise is accorded equal weight.”

“López’s 1992 book, Rebellious Lawyering, was perhaps the most influential work to offer a systematic approach in this regard. Criticizing what he termed ‘regnant’ lawyering, he argued for a vision of ‘teaching self-help and lay lawyering’ and of ‘co-eminent’ practitioners of lawyers and clients. The ‘rebellious lawyer,’ López argued,

‘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 in contact, particularly about the traditions and experiences of life on the bottom and at the margins.’”

“López argued that rebellious lawyers must ground themselves in the communities and lives of the subordinated, continually evaluate legal and nonlegal approaches, know how to strategize, build coalitions—and appreciate how all that they do with others requires attention not only to international, national, and regional matters but also to their interplay with seemingly more mundane local affairs. At bottom, the rebellious idea of lawyering demands that lawyers (and those with whom they work) nurture sensibilities and skills compatible with a collective fight for social change.”

“As Angelo Ancheta summarized in his review essay of López’s book: ‘Lopez’s rebellious lawyers . . . are deeply rooted in the communities in which they live and work. They collaborate with other service agencies and with the clients themselves; they try to educate members of the community about their rights; they explore the possibilities of change and continually reexamine their own work in order to help their clients best. Rebellious lawyering thus redefines the lawyer-client relationship as a cooperative partnership in which knowledge and power are shared, rejecting a relationship limited to an active professional working on behalf of the passive, relatively powerless layperson.’”

“López anchored his theory on a narrative-based understanding of persuasive problem-solving. The use of narrative and story-telling became a dominant feature of postmodern scholarship in the 1990s. Eschewing structuralism and ‘meta-theory,’ some proponents–though not López–even argued that the very act of telling marginalized and silenced stories would destabilize existing institutional arrangements. Persuasion was key. As López himself explained: ‘We see and understand the world through “stock stories.” These stories help us interpret the everyday world with limited information and help us make choices about asserting our own needs and responding to other people. These stock stories embody our deepest human, social and political values. At the same time, they help us carry out the routine activities of life without constantly having to analyze or question what we are doing … . To solve a problem through persuasion of another, we therefore must understand and manipulate the stock stories the other person uses in order to tell a plausible and compelling story – one that moves that person to grant the remedy we want.’”

“Lopez’s approach was very influential. Indeed, his approach crystallized the progressive critique of liberal public interest law practice as undermining, rather than furthering, client activism. Many activist lawyers now self-consciously aspire to practice ‘rebelliously.’”

“For López, grand narratives were suspect. His larger project emanated simply from the lawyer-client collaboration and ‘as an instrument of practical problem-solving and daily living.’”


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