Sunday, May 14, 2006

Random Thoughts on "Activist Lawyering"

A friend and I have been having an intermittent email dialogue on what it means to be an "activist lawyer" or a "radical lawyer." My interest in this conversation comes from the fact that one of the participants in my project has applied his professional skills as a lawyer to the cause of social change in Toronto and internationally for many years. My friend's interest is because she has been politically active for a long time and she is currently in the middle of law school.

You might have noticed that I haven't put up any original writing in the last week. I have something almost ready, but I read it over just now and it doesn't quite grab me the way I want it to so I'm going to let it sit for another couple of days. In the meantime, though, an email I wrote to my friend on this topic this morning might be of sufficient general interest to be worth sharing. Here it is:

Thanks for sending me your thoughts, and for forwarding that other email from _____. All of this is definitely helping to clarify my own thinking. It prompted me to go back and have a look at Staughton Lynd's book Living Inside Our Hope, where he talks in a few places about his decades of experience as a lawyer (and also as a historian, so I got distracted reading stuff about E.P. Thopmson as well).

I think one difficulty that I see emerging from our discussions on this issue so far is how we have been understanding the word "activist." In things that both of us have written, and in stuff you've forwarded me from _____ as well, we seem to be starting from a very privileged, middle-class version of what "activist" can/should/does mean. At various points all three of us have understood it to mean something like applying lefty politics to the lawyer's individual conduct in the course of representing an individual client, which has then been argued against by saying that to whatever extent that change in conduct makes a victory by the client less likely than if a strictly technical approach to lawyering was followed, it is unethical and should not be done -- don't sacrifice the client for some abstract greater goal that the client may or may not agree with. Fair enough.

I have had the sense from what you've said and from what you've forwarded an extreme wariness of the idea of an "activist lawyer" or a "radical lawyer." Often it has seemed the discomfort has been invested in questioning the appropriateness of linking those modifiers to the noun "lawyer." However, I think it might be better to use that wariness to deconstruct what we are assuming the word "activist" to mean, and to put together a broader and more liberatory definition. The idea of an activist waging a single-handed battle against Goliath, of activism understood largely as individual expression, is an idea grounded very much in privilege, I think. Rather, I think the modifiers "activist" or "radical" make much more sense if understood as indicative of being a member (loosely defined) of a larger collective or movement that is seeking certain goals. If understood in that sense, then being an "activist lawyer" or a "radical lawyer" is not at all inconsistent with focusing on the technical quality of the representation in a particular case or with genuine, collaborative listening to clients whose experiences of oppression have given them a much greater sense of political realities than the lawyer herself. Being an "activist" or "radical" in that sense means being part of a movement, and filling a role within the larger visions of the movement.

It also goes back to a point I made in an earlier email, that the tendency to narrow the idea of "lawyering" to "what you do in the courtroom" or "what you do with your client" is a symptom of precisely what makes me wary about the law, and about the ways that capitalism constitutes society in its functioning: the tendency to fragment, to separate, to make that which is whole and organic fit into arbitrary little boxes. Staughton Lynd choosing to live in a working-class neighbourhood, choosing to deploy his skills to the advantage of rank and file workers rather than of international union presidents or of capital, choosing to incorporate practices of radical listening and (in Lynd's vocabulary for something the latest email from _____ described beautifully too) accompaniment into both his lawyering and his work as a community-based historian -- all of that is part of "radical lawyering" it seems to me. He has chosen a social location in which to ground his practice, he has chosen to be part of a (admittedly at present loosely defined) movement, he has chosen to allow these collective realities to shape his lawyering even if, in the "courtroom moment" or the "giving advice to clients moment" he is informed only by technical considerations.

I would also add a couple of other factors that might contribute to "activist lawyering" or "radical lawyering." First of all, I think an openness to non-conventional tactics might be part of it. There is some history of integrating proceedings in courtrooms with mobilization in the broader community. Presumably, there are times when this sort of extra-legal support can be helpful and other times when it is not. I would imagine most "regular lawyers" would not be interested in such mobilization at any time, but an "activist lawyer" or "radical lawyer" would possibly have an analysis of when such mobilizations were a good idea, and would endorse them and even help organize them on such occasions.

As well, presumably one's lawyering -- and here I mean it in the narrow sense -- is informed by one's analysis of the law, which is presumably integrated with one's larger political analysis. Staughton Lynd's participation as a lawyer in community and movement efforts to socialize segments of the Pittsburg steel industry in the '80s were dependent on (a) him having political goals that include social control over the means of production, and (b) him having an analysis of the current legal framework that could be applied (and argued and expanded) to help make that happen. Lots of lawyers would not have either of those. It seems to me this is why the Christian Right has developed its own law schools in the United States in the last few years: to have environments in which lawyers-in-training are affirmed and reinforced in having particular political goals (their version of (a)) and there is effort put into developing and popularizing within the ranks of the legal profession arguments and analysis which can help shape the law in directions consistent with those goals (their version of (b)).

(Staughton Lynd, by the way, is a veteran activist in the United States, and was a minor icon in the New Left back in the '60s. He was an academic historian working in the south and he got involved in the civil rights movement. He did things like serve as one of the coordinators of the Mississippi Freedom Summer in 1964. He ended up leaving the academy, became a lawyer, and spent thirty years involved in workers' struggles in that capacity, and has more recently become involved in supporting the struggles of prisoners. He visited Hamilton back when I was doing a radio show, and I had the pleasure of doing an hour-long interview with him. In fact, his concept of "long-distance runners" in social change, which he talks about in the book I mention above, helped me when I was initially defining how I wanted to focus my social movement history project.)

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