Home » Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 7 – Alizabeth Newman, Scott L. Cummings, Ingrid V. Eagly, Mark Kessler, and Troy E. Elder

Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 7 – Alizabeth Newman, Scott L. Cummings, Ingrid V. Eagly, Mark Kessler, and Troy E. Elder

Excerpted from Alizabeth Newman, BRIDGING THE JUSTICE GAP: BUILDING COMMUNITY BY RESPONDING TO INDIVIDUAL NEED, 17 Clinical L. Rev. 615 (2011):

“In the 1970s, scholars explored litigation as a tool for social and political change, focusing public concern on systemic problems and creating momentum for legislative or administrative change. Regardless of its good intentions and often favorable legal outcomes, litigation disempowered poor communities in the long run by reinforcing a dependence on the legal system to redress injustice.”

 

“Since that time, a myriad of titles and definitions have been generated to describe lawyering practices designed to address systemic change but that are rooted in community. ‘Rebellious lawyering,’ coined by Gerald López, describes work grounded in the lives and the communities of the subordinated that continually evaluates the interaction between legal and non-legal approaches to problems.”

 

“Community lawyering,” the more common term for the 21st Century construction of social justice lawyering, shares the same critical paradigm as rebellious lawyering.”

 

“The most recent trend in the progression of “rebellious,” public interest lawyering is mobilization lawyering, which aims to redress the imbalance in political, economic, and social power between the haves and the have-nots.”

 

“Collaborative individual law (CIL) combines the principles of rebellious lawyering with individual representation. Rebellious lawyering scholars recognized that different classifications of lawyering models may overlap and that it is possible to practice rebellious lawyering in individual cases. In the CIL model, the attorney partners with a social justice organization to increase its membership and to build leadership, while still serving the immediate needs of individuals.”

“Using a different strategy, some rebellious law and organizing efforts strive to reach social change by directing their legal support to community economic development efforts or toward organizations engaged in movement struggles, in some cases exclusively.”

 

“In the best of rebellious lawyering traditions, the collaborators sought to establish a non-hierarchical collaboration, grounded in the community.”

 

 

 

 

Excerpted from Scott L. Cummings, COMMUNITY ECONOMIC DEVELOPMENT AS PROGRESSIVE POLITICS: TOWARD A GRASSROOTS MOVEMENT FOR ECONOMIC JUSTICE, 54 Stan. L. Rev. 399 (2001):

 

“…Gerald López proposed a new form of ‘rebellious’ lawyering that rejected the conventional lawyer-client hierarchy and sought to empower local community members to develop their own capacity to challenge injustice. Accepting the postmodern conception of power, López argued that rebellious practice should not privilege lawyer narratives over those of their clients. Rather, poverty lawyers should integrate clients into social change processes by valuing their stories and educating them to use their own problem-solving–or ‘lay lawyering’–skills to redress social problems.”

 

 

Excerpted from Ingrid V. Eagly, COMMUNITY EDUCATION: CREATING A NEW VISION OF LEGAL SERVICES PRACTICE, 4 Clinical L. Rev. 433 (1998):

 

“In his book Rebellious Lawyering, López introduces two different models of lawyering, ‘regnant’ and ‘rebellious.’ The ‘regnant’ model is reminiscent of the traditional approach currently employed in most LSC-funded agencies. In this model, which López argues dominates poverty law practice, the lawyer “helps” the poor by crafting litigation strategies that will expand access to statutory rights.”

 

“In contrast, ‘rebellious’ lawyers collaborate with low-income community members in ways that encourage their participation and involve their skills. López advocates that lawyers adopt the “rebellious” form of lawyering, rather than traditional litigation strategies, in order to develop nonhierarchical partnerships between lawyers and clients. Some examples of activities that rebellious lawyers might engage in include grassroots community organizing and community education to teach “self-help and lay lawyering.” By learning to help themselves, clients become empowered to devise their own solutions to problems without relying exclusively on lawyers.”

“Despite increasing discussion of ‘rebellious’ lawyering in the academic literature, most contemporary Legal Services programs subscribe to the traditional model of practice. Increasingly, scholars are questioning whether the LSC model, which currently is focused almost entirely on individual representation, can improve the overall status of the poor.”

“Although, on balance, community education work has the potential to be a positive force in the lives of some low-income clients, it is not without its own problems. Reflecting on my experience with the Chicago program has forced me to consider a number of questions about its efficacy–questions that do not, in the end, undermine its validity, but instead offer challenges to lawyers who seek to practice within the rebellious model.”

 

“[E]ven in the best case scenario, a rebellious relationship will never completely eliminate the inequality of power between lawyer and client. This is, of course, a constant tension for lawyers practicing within the rebellious model, who are ‘living in the contradiction’ between privileged professional and promoter of social change. However, rather than leading us to reject the project of experimenting with progressive legal strategies, I think that the recognition of the inevitability of power imbalances is better viewed as a source of the rebellious model’s vitality. If we are to become better public interest practitioners, we must be able to acknowledge how power suffuses our relationships with clients. At our best, we struggle to negotiate these hierarchies, to identify our mistakes and seek new ways to correct them. While we must remain always vigilant in challenging the dynamic of our day-to-day interactions with clients, we should not allow this recognition of power to paralyze progressive action on behalf of disadvantaged people.”

 

“…I found that pursuing community education within the rebellious ideal did meet the needs of many clients, such as those clients who would not have come to my downtown Legal Services office for consultation, and those whose problems were not amenable to traditional ‘legal’ solutions.”

 

 

 

Excerpted from Mark Kessler, LAWYERS AND SOCIAL CHANGE IN THE POSTMODERN WORLD, 29 Law & Soc’y Rev. 769  (1995):

 

“Gerald P. López’s Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice and Maureen Cain and Christine B. Harrington’s edited volume, Lawyers in a Postmodern World: Translation and Transgression appear at a time when faith in the progressive potential of law has been badly shaken. Progressive court decisions of the 1960s and 1970s have been routinely modified, weakened, or reversed by more conservative federal courts operating in a more conservative political climate. Living conditions in inner cities for many members of racial minorities continue to deteriorate, despite court decisions guaranteeing formal legal equality. Public schools resegregate, despite court pronouncements that segregation is unconstitutional.”

 

“Although quite different in many important ways, the volumes by López and Cain and Harrington help to set such an agenda by exploring traditional questions about the role of lawyers in society in novel, innovative ways. Influenced by contemporary critical theories, especially postmodern legal theory and writings on ideology, both books focus special attention on the role of legal professionals in social change processes. Both books, each in its own way, are concerned about the relationship of law and legal scholarship to progressive politics. Neither reflects the abandonment of concern for social justice issues. On the contrary, both volumes are clearly committed to furthering our knowledge of existing inequalities and injustices and how they may be challenged.”

 

“[T]hey succeed in placing a familiar and significant topic in new and different frameworks. Elements from each volume may be brought together to suggest new approaches to the study of lawyers in society that have the potential to contribute to transformative politics. Thus, both books may be viewed as part of more general efforts to redirect sociolegal research.”

 

Both books examined here may be viewed as attempts to redirect the study of lawyers by moving beyond theory and research on the structure and function of legal practice and work that separates and contrasts ideals of legal practice (practice norms as expressed in ‘law in the books’) and ‘actual’ legal practice (practice norms ‘in action’). Both employ ideological approaches to understand the political implications of lawyers’ work. Although the books share an interest in legal discourse and ideology, they employ postmodern insights about the role of discourse in constructing social reality in different ways.”

 

“López… explores how legal and popular cultures create an ideology of legal practice that constitutes professional norms of legal activity. His book is an argument that progressive lawyers must fight against this vision of the ‘good lawyer’ to advance the causes of their clients.”

 

“López, a law professor and prominent critical race scholar, presents a series of fictional accounts of progressive lawyering in an effort to redefine and redirect activist legal practice…. López seems primarily interested in raising issues and questions for current and future practitioners.”

 

“Gerald López focuses his attention on public interest, or progressive, lawyering that takes place in a variety of practice settings. His book critiques orthodox notions about law practice that, he argues, are shared by many, if not most, progressive lawyers. His critique is grounded in his own life experiences growing up in the 1960s when the ‘first wave of self-consciously progressive lawyers’ arrived in his East Los Angeles neighborhood, ‘then the Chicano part of Los Angeles’ (p. 1). López saw these attorneys as ‘outsiders, white and male,’ who ‘all appeared to dress, speak, and act alike— or at least to dress, speak, and act not at all like us’ (ibid.). While praising the commitments and good intentions of the new lawyers, López found their notions about practicing law, ‘the idea of practice that shaped their offices, their priorities, their routines, their habits, their know-how, their sense of a job well done’ to coincide with the subordinating assumptions of a traditional legal and political culture ‘that for so long had kept Latinos, among others, at the margins and at the bottom’ (p. 2). Thus, according to López, by reproducing dominant cultural norms in their practice, progressive lawyers reinforced the conditions of subordination that they had traveled to East Los Angeles to change. In the 1970s, López attended Harvard Law School, became a law professor, and now writes in an effort to redefine and reorient a more “rebellious” progressive law practice.”

 

“López’s ideas about law and legal practice are related through stories of the lives and experiences of numerous fictional attorneys, citizen activists, and other clients. Readers learn about the dilemmas of public interest legal practice through the experiences of such people as Catherine, a 24-year-old, third-year law student contemplating her future legal career in the context of how other lawyers she has worked with do their jobs; Teresa, director of Advocates for Justice, an impact litigation firm where Catherine worked after her first year in law school; Jonathan, a housing lawyer for legal aid; Abe, an ‘old left’ labor lawyer; Sophie, an Irish Catholic immigration lawyer for legal aid who lives in the low-income neighborhood of Oakland, California, where she works; Amos, an African American who coordinates a new nonprofit organization in Oakland, United Help for Families; Lucie Fung, a newly appointed director for the Community Law Office, a nonprofit legal support center; Martha Fisher, a private attorney who occasionally represents clients pro bono; Dan Abrams, a ‘gay Jewish progressive lawyer’ practicing juvenile law with the Law Collective in Berkeley; and Etta Johnson, an ‘African-American lesbian citizen activist’ working for a local tenants’ union. In the course of several richly detailed, skillfully crafted, intricate, and revealing narratives of the ways in which these characters do their jobs and interact with one another, López presents provocative and potentially significant views about law and legal practice.”

 

“For López, law has many parallels to storymaking and storytelling. Indeed, he suggests that ‘law is not a set of rules’ or ‘a collection of definitions and mandates to be memorized and applied,’ but rather is “a set of stories’ embedded in ‘a culture composed of storytellers, audiences, remedial ceremonies, a set of standard stories and arguments, and a variety of conventions about storywriting, storytelling, argument-making, and the structure and content of legal stories’ (p. 43). Within this legal culture, lawyers construct stories that, they hope, ‘the audience will find understandable’ and that ‘will persuade the audience to grant the remedy sought’ (p. 39).”

 

“In their practices most progressive lawyers are guided by a set of assumptions and beliefs, emanating from the dominant legal and popular cultures and reinforced in law school and on-the-job socialization, that López refers to as ‘the regnant idea.’ ‘Regnant lawyers,’ those guided by conventional beliefs, see themselves as ‘the preeminent problem-solvers in most situations they find themselves trying to alter’; have only rare and sporadic interactions with other groups and institutions in their communities and then only in the context of work on a specific case; know little, if anything, about how legal change affects their client communities; see little use in providing community education; and believe that lawyers should ‘assume leadership in proactive campaigns,’ a posture that relegates clients to passive and insignificant roles. ‘Regnant lawyers’ see themselves as ‘heroic’ figures and they rely uncritically on familiar legal approaches to problems, especially litigation (p. 24). The qualities of the regnant lawyer are clearly in evidence in the progressive lawyers that López observed in East Los Angeles in the 1960s, lawyers who ‘tended to fit our needs and aspirations into preestablished frameworks that were neither animated by nor ultimately much responsive to the lives we were leading’ (p. 3).”

 

The propositions that comprise the ‘regnant idea’ of lawyering, then, privilege specialized professional knowledge and marginalize practical knowledges emerging from daily life. The regnant idea, writes López, ‘prescribes what counts as worthwhile knowledge and as praiseworthy work.’ What counts from this perspective is knowing ‘how things work and how to get things done’ (p. 26). Legal professionals possessing this knowledge embrace and perpetuate the regnant idea by word and deed, acts that serve to protect their own status and prestige and preserve their authority to speak the ‘truth’ about the sociolegal world.”

 

“López advocates a strikingly different type of legal practice—a ‘rebellious’ legal practice—that, among other things, will reimagine, contest, and ultimately transform dominant, taken-for-granted truths. To López, truth is not given or universal. Rather, truth is constructed, situational, contingent, negotiated, partial; no story ‘makes sense of everything in the world’ (p. 65). Rebellious lawyers realize the importance of gaining a perspective on truth from their clients, that significant practical knowledge may reside outside of their own situated understanding of the social world. Rebellious lawyers willingly abandon their own privileged professional position as they seek to learn about other ways of knowing and alternative realities. Thus, at the center of rebellious lawyering are closely collaborative relations with clients and communities: ‘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’ (p. 37).”

 

“López’s call for rebellious lawyering connects in important ways to his view of law as storytelling.

‘Regnant lawyers,’ he writes, ‘fail to see the ways in which subordinated people do not submit, belly up, to everyone and everything assaulting them.’ ‘Rebellious lawyers,’ on the other hand, benefit from their collaboration with clients by being able to ‘discover just how often subordinated people do deploy story/argument strategies, some remarkably ingenious and resourceful, to contest the roles others would assign them’ (p. 49).”

 

“Thus, to López, rebellious lawyers have much to gain from the practical knowledge of their clients. While lawyers typically know more than their clients about the legal culture, its stories, and its storytelling practices, the practical knowledge of clients emerging from the conditions of daily living sometimes runs counter to stories from the dominant culture and challenge their authority. Lawyers collaborating with subordinated people and communities, may create new stories and argument strategies that disturb and disrupt dominant ways of thinking and knowing.”

 

“López’s vision of rebellious lawyering, then, may be viewed as part of his critique of what counts as knowledge. He argues that a truly fruitful, collaborative relationship includes both partners challenging the other’s knowledge. According to López, ‘As part of a larger collective effort within the rebellious idea of lawyering against subordination, a client and a lawyer 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 they gained it, what each believes about it, and how each shares and uses it. In so doing, they work constantly (if often in unglamorous and fragmented ways) to change the very understanding most people cling to both about what clients and lawyers share and about how they use what each knows about living and lawyering’ (p. 53).”

 

“Unlike the regnant lawyer who relies on litigation to resolve disputes, the rebellious lawyer emphasizes nonlegal solutions. Rebellious lawyers help to fashion more explicitly political strategies, such as coalition formation, and identify other audiences, such as local elected officials, agency personnel, the business community, law enforcement officials, and sympathetic liberals, to whom stories should be told. Thus, rebellious lawyers need to learn ‘what stories and storytelling practices govern the remedial ceremonies’ of all potentially useful audiences (p. 191). Perhaps most importantly, López stresses the significance of lawyers demystifying law, making it more accessible for their clients. Demystification and accessibility contribute to greater client autonomy: ‘Helping people to see that they can identify, understand, and contribute to solving their own and others’ problems is one way of helping them gain more control over the life that we share’ (p. 70).”

 

“The complex, richly textured, and very human characters López develops in his beautifully written narratives promise to engage and inspire the lawyers and law students for whom he writes. This book raises extremely significant questions about how to work with clients and what it means to represent, or (re)present, ‘others.’ In most of his stories, López explicitly identifies the gender, race, and ethnicity of both lawyers and clients, permitting him to sensitively assess how one’s subject position may intrude on lawyer-client interactions. For example, in one story, Martha Fisher, a white woman attorney, represents Jesse Cruz, a Latino. Showing a characteristic attention to the details of interaction, López suggests that Fisher’s formal introduction of herself as ‘Ms. Fisher’ in the initial meeting helps Cruz to speak with a woman in this position of authority, while simultaneously heightening his discomfort with her whiteness (p. 178).”

 

“Throughout the book, López offers useful, detailed descriptions and prescriptions for lawyer-client relations. For example, in discussing Martha’s work with Jesse, López cautions that ‘a responsible representative … must do more than mechanically translate her client’s story into language that the court or other relevant audience will understand and respond to. While respecting Jesse’s knowledge of and hopes for the situation, Martha must encourage him to explore alternative versions of what is going on and what would amount to an improvement.’”

 

“López pushes the lawyer to consider the client’s perspective as solutions are fashioned:  ‘The core of the process is the representative’s effort to understand the client’s story in his own terms, to use her knowledge to help the client refine his own understanding, and at the same time to begin to think about the stories she might tell on behalf of the client—or might coach the client to tell on his own behalf—to various audiences.’”

 

“López goes on to outline several rules of collaboration: ‘The lawyer must be educated about what the client needs, about what the client wants, about the transactions and relationships into which she will intrude, and about how to work with this particular client. At the same time, the client must be taught how to collaborate: sometimes how to testify but, in all circumstances, how to recall and communicate the details and texture of his story and how to bring lay know-how to bear on collective problem-solving.’ Because it is often difficult ‘to determine precisely what elements of the client’s story are relevant to potential solutions,’ the lawyer ‘must—with the client—pursue both those elements that the lawyer hypothesizes may be relevant and those that the client feels are important’ (p. 173). López’s narratives and commentaries force all who serve as representatives, in whatever capacity, to think seriously about who they are in relation to others, how they appear to those they represent, and what assumptions they bring to their relations with clients.”

 

“While López’s stories will effectively engage, stimulate, and challenge legal practitioners, social scientists may legitimately question their accuracy. Such skepticism could have been minimized with a fuller and richer development of López’s personal experiences as a lawyer and observer of public interest attorneys. Because he ends an autobiographical account opening the book at the time he enters law school, the reader is not informed about what elements of his own experience, beyond his early years in East Los Angeles, contribute to the stories he tells.”

 

“In general, López’s book exhibits a curious ambivalence about social science and empirical research. At one point, López writes that the set of stories he relates in this book ‘hardly substitute for the many situated studies we need’ (p. 27). At least some of these studies exist, and many are listed in an extensive appended bibliography that López seems careful to separate from his stories. López’s narratives contain no references or notes linking the stories or the arguments he makes to social science research. Thus, for example, a discussion (p. 45) about the reluctance of subordinated people to mobilize law and seek professional assistance could have been supported and enriched by the work of Kristin Bumiller (1988), work that is listed in the bibliography. He does not discuss those studies that directly address the central concerns of the book, public interest practice (e.g., Handler et al. 1978; Katz 1982; Kessler 1987, 1990) and lawyer-client interaction (e.g., Rosenthal 1974; Bell 1976; Hosticka 1979; Olson 1984; Sarat & Felstiner 1986; White 1990; Sarat 1990). Confidence in the accuracy of his description of regnant lawyering would be enhanced by drawing explicit links to empirical research that supports the view created in the stories. For example, López’s description of one regnant lawyer’s file—a file ‘meant to help her quickly place each case into one of the five or six predefined categories of ‘landlord-tenant situations’—appears strikingly similar to descriptions of public defenders who impersonally place their clients, even before meeting with them, into crime categories based on their reading of police records (Sudnow 1965).”

 

“Throughout the stories he develops in the book, López employs a scientific discourse to demonstrate how his characters learn about the world. For example, Lucie Fung, the new executive director of the Community Law Office, conducts a “study” of the organization’s operations and shares her ‘findings’ with the reader. Like a competent social scientist, she describes her methods and tools of research—tape recording the interactions of lawyers and receptionists with clients—and presents and analyzes the transcripts produced. She also qualifies her findings, as in this excerpt from her description of one lawyer study: ‘Again I had my tape recorder as well as my eyes and ears. But I ended up with only a little more than two weeks to cover all this territory, and that turned out to be less than I really wanted. So I didn’t get to review most of the lawyers’ IOLTA support work, particularly on the telephone. And I didn’t get to watch them operate in the field, at brainstorming sessions, around conferences.’ (P. 102) López’s description of the fictional characters’ ‘findings’ never imply an acceptance or awareness of his belief—stated elsewhere in the book—that truth is socially constructed, historical, or contingent.”

 

“López’s stories of the ‘rebellious lawyer’ suggests ways in which Cain and Harrington’s framework may be applied, at the level of lawyer-client interaction, to investigate both the limits and potential of law and lawyers for social change. In particular, the ‘rebellious lawyer’ engages in ‘transgression’ through ‘translation’ of client needs and desires into new stories told to a variety of audiences. According to López, rebellious lawyers engage in ‘bicultural and bilingual translation’ (p. 44), moving ‘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’ (p. 43). The rebellious lawyer’s challenge, then, is to ‘translate’ in ways that truly ‘transgress’ established practices and social relations.”

 

López’s discussion highlights the importance of examining legal practice from the client’s perspective, or from the bottom up. His work thus has much in common with postmodern scholarship examining local resistance to domination. Summarizing the significance of looking to the margins in postmodern studies of social change, Ewick (1992:761) writes: ‘if we are to understand social change, either the incremental or revolutionary, we must begin by examining ‘where people are at’ and seriously consider the role of daily acts of resistance and subversion in the constitution of consciousness and, thus, in the formation of collective movements.’’”

 

“López’s ‘rebellious lawyer’ considers ‘where people are at’ and seeks to develop counterhegemonic stories that encompass clients’ lived experiences. His fictional stories of how successful rebellious lawyers translate client stories into transgressive action encourage empirical research that explores the nature and outcomes of interaction and collaboration between progressive lawyers and their clients. Such work will necessarily examine lawyers’ work that is ‘nontraditional,’ work that falls outside of the legal system’s conventional boundaries. But it should also examine the extent to which traditional legal work, such as litigation, may change conventional understandings, shift the terms of debate, contribute to feelings of empowerment, and/or assist in political mobilization (e.g., Schneider 1986; Williams 1987; Scheingold 1989; McCann 1994).”

 

 

Excerpted from Troy E. Elder, POOR CLIENTS, INFORMED CONSENT, AND THE ETHICS OF REJECTION, 20 Geo. J. Legal Ethics 989 (2007):

 

“Writing at a time when poverty lawyers had endured more than a decade of assault by anti-progressive forces in government, theoretics scholars challenged the ‘regnant’ idea of lawyering on behalf of the poor. According to the theoretics scholars, regnant progressive lawyering amounted to little more than conventional lawyering on behalf of subordinated groups.”

 

“The term [regnant] was coined by Gerald Lopez, and to some extent, it has served both as a rallying cry and a wake-up call to a generation of poverty lawyers. See LOPEZ, REBELLIOUS LAWYERING, supra note 122; Gerald P. Lopez, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 GEO. L.J. 1603, 1609 (1989).”


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s