Rebellious Lawyering and History

On February 21, I organized a group of students to attend the 20th annual Rebellious Lawyering Conference. Hosted by Yale Law School, the two-day event featured prominent public interest lawyers, activists, and academics discussing and reflecting upon their current social justice work. Students chose which sessions to attend during the day, but all convened to hear keynote speeches from Robin Steinberg of the Bronx Defenders and Cristina Tzintzún of the Worker’s Defense Project.

Both speakers explored the conference’s theme: what does rebellious lawyering mean? Robin Steinberg, pioneer of Bronx Defender’s “holistic approach” to criminal defense, presented a nuanced answer. A rebellious lawyer, she said, should never strive to change the system from the top, since “the only way to get to the top is to be changed by the system.” However, if the system extends an invitation to join, a rebellious lawyer should not automatically reject it on principle because sometimes “history can catch up with you.”

Steinberg illustrated her point by describing three once-ostracized rebels who evolved into accepted leaders while still advancing their cause—Nelson Mandela, John Lewis, and, lesser known to me, Clara Shortridge Foltz. In 1878, Foltz became America’s first practicing female lawyer, successfully arguing on her own behalf that California should admit her to the bar. Soon after, Foltz began promoting another unheard-of idea, a “public defender system” that would provide free, quality representation to indigent criminal defendants. History eventually caught up to Foltz, and at the age of 61, she accepted an appointment to become America’s first female deputy district attorney, instituting numerous reforms to treat prisoners more humanely.

In contrast, Cristina Tzintzún provided a more uncompromising view. A longtime organizer and current executive director of Worker’s Defense Project, Tzintzún emphasized that rebellious lawyering means not only conducting legal services work but connecting that work to larger social change. Focused on the Texas construction industry, the Worker’s Defense Project leverages policy, consciousness, and service in order to build membership-based movements that transform.

Yet despite her holistic approach, Tzintzún did not imply that a rebellious lawyer could some day join a system that opposed her. Since her model defines social change as building power, even if developers proactively negotiated with workers, rebellious lawyering might still require conflict, not to secure short-term gains but to cultivate a lasting movement.

So what to make of these diverging views? Should rebellious lawyers accept an invitation to join history or refuse because social change always requires outpacing it?

I share Steinberg’s sentiment that rebellious lawyers should not automatically reject cross-system movement, especially out of any sort of identity politics that views formal authority as inherently immoral. To paraphrase Dr. King, power is neither evil nor desirable per se, instead what matters is how that power is used.

That is important, because transforming our world is going to take everyone—public, private, and nonprofit/non-governmental—as every sector wields its own kind of power.

Significantly though, the power of ordinary Americans—specifically poor and working people—has reached its lowest point in years: America is now the most unequal nation in the developed worldworking class wages have stagnated over the last four decades, and nearly 50 million people live in poverty.

At the same time, there have been no recent mass movements on the scale of those of the last century—whether labor, civil rights, women’s rights, or anti-war. Occupy Wall Street provided a vocabulary but sputtered and even the gay rights movement has been more legalistic than participatory.

I do not believe that these two developments—waning economic power and disappearing mass movements—are coincidental. Instead I agree with scholars who argue that neoliberal economic policies have reduced the role of government, causing social justice work to be shifted to nonprofits, the corporate funders of which prioritize managing the worst effects of injustice rather than transforming the fundamental conditions that give rise to them.[1]

Therefore, I believe that membership-based economic empowerment is necessary for independent, sustained, and structural transformation across a broad range of issues, including discrimination.

So did Dr. King. Fifty years ago he made it a point to march for “jobs and freedom,” and at the end of his life he promoted a “Poor People’s Campaign” that moved beyond civil rights because “what good does it do to be able to eat at a lunch counter if you can’t buy a hamburger?”

That is why I believe that rebellious lawyering must not only permit inter-system movement but also build lasting mass movements that can exert their own power. History may not necessarily catch up with this conception of a rebellious lawyer, but at least he or she can be assured that it will be written the right way.

[1] Spade, Dean. “Law Reform and Movement Building.” Normal Life. Brooklyn: South End Press, 2011. 171-180. Print.

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