Home » Rebellious Lawyering, Law Pedagogy and Practice: Alfredo Mirande Gonzalez, Ashly Hinmon, Harold A. McDougall, Katherine Hunt Federle, Mitchell A. Kamin

Rebellious Lawyering, Law Pedagogy and Practice: Alfredo Mirande Gonzalez, Ashly Hinmon, Harold A. McDougall, Katherine Hunt Federle, Mitchell A. Kamin

Excerpted from Alfredo Mirande Gonzalez, ALFREDO’S JUNGLE CRUISE: CHRONICLES ON LAW, LAWYERING, AND LOVE, 33 U.C. Davis L. Rev. 1347 (2000):

“No me escribistes, y mis cartas anteriores no se si las recibistes. Tu me olvidastes, y mataron mis amores el silencio que me distes …. Haber si a esta si le das contestacion EUFEMIA! Del amor pa que te escribo. Aqui quedo como amigo. Tu atento y muy seguro servidor.

Carta a Eufemia, traditional Mexican song

You didn’t write to me, and I don’t know whether you received my previous letters. You forgot about me, and your silence has killed my love …. Let’s see if you will answer this one EUFEMIA! Why should I even bother to write to you about love. I remain your friend; your attentive and loyal servant.

Letter to Eufemia

 

“[A] concern is that I sense that some of the people in the class may be lacking ganas (passion). You know we are reading these great articles and trying to do something that is pretty innovative, and some people seem unfazed by the whole thing. I sometimes feel like the class is something that is being done to them, rather than something that they are doing. I just wish that there were more enthusiasm, more spark, more fire, more passion. Yes, I want passion! I need it to keep going.”

 

“Do you think I am being unfair? Are my expectations unrealistic? Am I expecting them to act like graduate students? They are, after all, undergraduate prelaw students. I thought about it, and I don’t think I am expecting too much because I have set the same standard before and people have met it. Let me give you an example. The other day we were talking about the frustration that comes from feeling that you are being exploitative with the various groups because you come in, use the group for your purposes, and then the quarter ends and you are gone. I asked what can you do? One of the students, Sabita, who has not talked much, paused thoughtfully and said, “you get them so that they can do things for themselves,” or words to that effect. This was such a simple answer, but the most profound answers are often that simple.  I thought it really was a great answer that kind of integrated a lot of the stuff that we have been reading about in Jerry Lopez’s book Rebellious Lawyering.”

 

“A final issue that arose in the class that has significant implications for rebellious lawyering and advocacy on behalf of subordinated groups centered around “voice,” representation, and authenticity. For some time now, critical race theorists, and more recently LatCrit scholars, have been arguing not only that subordinated groups have been excluded from law and legal discourse but that such groups have a unique voice and perspective that the law needs to incorporate. Narrative is a mechanism for attempting to incorporate the voices of the excluded into law.”

 

 

 

Excerpted from Ashly Hinmon, ACHIEVING JUSTICE THROUGH REBELLIOUS LAWYERING: RESTRUCTURING SYSTEMS OF LAW AND POWER FOR SOCIAL CHANGE, 6 Mod. Am. 15 (2010):

 

“A dynamic equilibrium of power exists between law and social movements. Our role in social-change lawyering is not only to focus on the law itself, but also to understand and transform the frameworks that create and maintain balanced systems of law in our society.”

 

 

“Racism, for example, impacts the legal system on many identifiable levels but is nonetheless difficult to eradicate because it is bound up within society’s mechanisms of power.”

 

 

“The law, as a societal institution, both allocates power and disciplines power-holders.”

 

 

“[S]ocial-change lawyering can most readily transform the hidden roots of injustice not only by shifting the rules, but also by shifting cultural understandings of justice.”

 

 

“To do this, we must engage on the micro-level. After identifying sources of power, we must increase the democratic potential of specific marginalized groups, in order to enhance their capacity to take control of their own identity and power.”

 

 

“[T]he metanarrative process …[is] rewriting the stories that society tells itself about what is ‘just.’”

 

 

“[T]hink locally and on specific issues….”

 

 

“[A]sk how to transform broad social structures that perpetuate injustice yet go unnoticed.”

 

 

 

Excerpted from Harold A. McDougall, FOR CRITICAL RACE PRACTITIONERS: RACE, RACISM AND AMERICAN LAW (4TH ED.) BY DERRICK A. BELL, JR., 46 How. L.J. 1 (2002):

 

“See Lopez, Rebellious Lawyering…. Lopez’s principal focus is the individual lawyer and his or her choices to identify with the oppressed or to identify with the system. The former he calls ‘rebellious’ lawyering. The latter he terms ‘regnant’ lawyering, and he finds it occasionally even among lawyers who have the oppressed as their clients…. Lopez’s work has sparked much commentary.  See generally Angelo N. Ancheta, Community Lawyering, 1 Asian L.J. 189 (1994); Ann Southworth, Taking the Lawyer Out of Progressive Lawyering, 46 Stan. L. Rev. 213 (1993); Milner S. Ball, Power From the People, 92 Mich. L. Rev. 1725 (1994). Together, they seem to be saying that changing one’s individual attitude and lawyering style is an important step, but it must then lead to a re-evaluation of the lawyer’s role in a particular minority community’s empowerment and development, as well as protection. In this regard, lawyers become organizers, with a real appreciation not just for the impact of their own approaches, but also for the unique strengths and weaknesses of the particular communities they serve.”

 

 

Excerpted from Katherine Hunt Federle, LAWYERING IN JUVENILE COURT: LESSONS FROM A CIVIL GIDEON EXPERIMENT, 37 Fordham Urb. L.J. 93 (2010):

 

“We often adopt approaches that place full responsibility on those least able to meet these demands because, as a society, we feel less communal responsibility for the poor, who often are contradictorily portrayed as shiftless, lazy, criminal, and easily duped. For those proponents of a civil right to counsel, this view about poverty structures the debate concerning the existence, nature, and extent of that right (that is, who gets a lawyer, what cases warrant the appointment of counsel, and who pays for the representative). But it also alludes to a deeper question about what it means to be a good lawyer for the poor and the degree to which the lawyer must facilitate client autonomy.”

 

 

 

 

 

“For many lawyers…the idea that the attorney must advocate for the client’s express preferences when that client is a child runs counter to common sense. Largely because the question of who gets to decide is inextricably linked to notions of competency and autonomy, the child client is peculiarly disadvantaged. This emphasis on capacity suggests that the child may be incapable of making reasoned decisions and may thus be unduly susceptible to coercion and manipulation….[W]hat the child wants may be subordinated to some vision of the child’s best interests and what is a ‘good’ or ‘right’ decision.”

 

 

“It is this insistence on capacity that has structured much of our discussion about rights and ethical issues in lawyering….”

 

 

“Lawyering in juvenile court offers some lessons to those who seek to extend the right to counsel for the poor in civil cases. Not only do juveniles in delinquency cases have the right to counsel as a constitutional matter, but that right is, explicitly, a civil right….”

 

 

“We must directly confront our views about the poor and rethink the ways in which these perceptions allow us to construct images of clients as flawed, less capable, and less worthy of our respect. By reimagining the client as competent and valued, we open lawyering to the possibility of client-directedness. This commitment to client autonomy is essential if we hope to provide the poor with meaningful access to courts.”

 

 

“Lawyering models implicitly engage in rights talk: what the lawyer is to do (or not) for the client depends primarily on how one constructs and values rights.”

 

 

“A coherent theory of rights…recognizes the connection between powerlessness, hierarchy, and exclusion. In this sense, rights flow downhill toward the least powerful in any given relationship and seek to remedy the exclusion and marginalization of the powerless through the redistribution of power.”

 

 

“It is indisputably good that the client’s voice is heard without a filter, not only because it gives the client a sense of having participated in the decision-making process but also because it adds a dimension to the court’s understanding of the facts that otherwise might be lost.”

 

 

“Bluntly put, rights provide access to justice. A client-directed lawyer is thus in the best position to ensure that the client’s voice is heard and taken seriously by facilitating client autonomy as a means to greater political empowerment.”

 

 

“In short, the poor must be empowered in our society if they are to be respected and taken seriously. Empowerment means letting the impoverished be active participants and stakeholders. At bottom, it means rethinking approaches that talk about the poor and enabling the poor to speak for themselves. Lawyers are critical to this endeavor because they are a means by which the poor have access to justice. At some point, we need to accept that communal responsibility for the impoverished in our society is not only morally right but socially responsible and fiscally sound. How, then, do we move beyond notions that poverty is the fault of the poor? I think the answer is straightforward–albeit not simple. The voices of the poor, like those of children, need to be heard.”

 

 

 

 

 

Excerpted from Mitchell A. Kamin, review of GERALD P. LOPEZ’S REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRESSIVE LEGAL PRACTICE, 28 Harv. C.R.-C.L. L. Rev. 237 (1993):

 

“Gerald López envisions a world where lawyers have no corner on the market of lawyering for social change. In López’ world, lawyers collaborate with the subordinated clients they represent and draw on their clients’ skills and knowledge to address specific legal problems as well as broad social problems.”

 

“In Rebellious Lawyering, Professor López transposes his prescription for progressive legal practice to a theoretical context. He does not propose some ‘‘truth’ that makes sense of everything in the world,’ but rather he examines cycles of practice and theory in an effort to build a theory from the ground up. (p. 65) López illustrates, through anecdotes and characters, how the problems of a poverty law practice can be addressed and alleviated. He also attacks the barriers of traditional legal analysis by opening it to previously excluded, yet crucial, voices.”

 

 

López defines ‘lawyering’ as a method of problem solving that persuades others to act in desired ways, such as getting someone to fix a roof or filing a suit against the city for nonenforcement of its housing codes. (p. 39) López uses this definition to buttress his argument for an inclusive model of progressive lawyering that acknowledges and employs the varying expertise of all of the participants in the struggle for social change.”

 

 

“López explores the predominant method of progressive lawyering, ‘the regnant idea of the lawyer for the subordinated,’ through descriptions of legal characters. The ‘regnant idea’ operates when a lawyer ‘formally represents’ clients through ‘legal’ avenues such as litigation.

 

 

“The lawyer’s collaboration ‘with clients (and others) comes to life through practical moments on the job that others disregard or underestimate.’”

 

 

“López proposes to join legal theory and practice by scrutinizing specific lawyer-client situations which illustrate the limitations of the regnant idea. By using ‘situated microdescriptions of lawyering practice.’ López gives his readers, mostly lawyers and law students, concrete examples to reflect upon and critique. On a practical level, this approach is important because it allows lawyers to examine how and when they deploy power. It grants them insight into what they do and why, and it demonstrates how they might change their conceptions about the practice of law.”

 

 

“At the heart of the rebellious model is the notion that ‘no person, no group is ever absolutely powerless in any relationship….’”

 

 

“Everyone has made use of the persuasive storytelling skills required to be a ‘lawyer,’ whether they tell these stories in the context of applying for a driver’s license or enrolling a child in school.”

 

 

“Unlike the more traditional conceptions of power in modern society, López’ theory rejects notions of the dominant class’ absolute hegemony and casts the world as ‘networks of competing power strategies.’”

 

 

“‘[T]heory becomes a habit of ongoing conversational reflection about how to describe the problems, make alliances, devise strategies, and thus move together toward a better world.’”

 

 

“This brand of theory by definition does not yield ‘static artifacts’ such as articles and books; it ‘is enacted in those elusive moments of insight that mark good conversations, or in those tactical innovations that work.’”

 

 

“By illustrating possible manifestations of these ‘elusive moments,’ as well as examples of the failures of those working within the regnant idea, Rebellious Lawyering provides both an example of, and a catalyst for, rebellious legal analysis.”

 

 

“Ultimately, this book is about investing lawyers who work against subordination with a new sense of responsibility for their work.”

 

 

“López’ ultimate message to those who work within the legal system is not a prescription for specific acts—‘do these things’—but rather a call to be aware, to ‘check out what’s around you.’”

 

 

“….López recognizes that lawyers can, by taking a hard look inward, overcome the regnant idea and change the practice of poverty law for the better.”