Academic journal article Yale Human Rights and Development Law Journal

The Lawyer's Baggage: Engaging the Oppressor Within

Academic journal article Yale Human Rights and Development Law Journal

The Lawyer's Baggage: Engaging the Oppressor Within

Article excerpt

For at least fifty years, lawyers have examined what professional role to play in movements to end oppression. First, lawyers criticized the impact litigator: ducking in and out of movements, the litigator represented a client to advance a cause. These lawyers could deliver a gut punch to an oppressive regime, yet winning a court case could defuse organizing power and lead to push-back. The lawyer, not the client or movement, was in charge. Then, criticism swung against the community lawyer seeking to empower marginalized people. That lawyer served individuals who were confronting systemic discrimination, going person by person to make a change. While the community or individual had more control over reform efforts, the lawyer was often seen as only serving the immediate issue, just holding the oppressive forces at bay.

Movement lawyers have since learned better ways to engage the oppressors. Movement lawyers are now, as Professor of Law Scott J. Cummings argues, collaborating more often with activist organizations. (1) In these collaborations, movement lawyers apply their skills to any number of activities: organizing, educating, and advocating for change to name a few. Collaboration and a broad skill-set are critical next steps in movement lawyering. In this new phase of movements, activists are looking for answers about what baggage keeps movements from confronting oppressive forces. Lawyers must own their own baggage: the tensions that remain inherent in movement lawyering.

A Choice Of Voices In A Movement

Like every lawyer, movement lawyers choose their clients. However, movement lawyers do not choose their clients based on market forces, like transactional lawyers, or due to need, as in direct service. Movement lawyers do not have a unifying theory of change for which clients in a movement need representation. To select clients, the movement lawyer makes a value-laden decision about which individual or organization is making the changes that the lawyer believes will benefit the overall movement.

In a perfect world, every voice that wished would be empowered by legal counsel and every activist would engage the oppressor in a constructive way. The real world is far messier. Many movements in the United States, at their core, are now often coordinated by well-organized, large-scale activist organizations. These organizations have the capacity and knowledge to direct a lawyer, engaging that lawyer in any variety of education, litigation, and advocacy initiatives.

A perfect criterion for why a lawyer should choose the perfect client is impossible. Nevertheless, lawyers should not get a free pass to ignore the impact that their choice may have on the movement itself. In a movement of many voices with varying centrality and power, a lawyer may tip scales to favor those voices that the lawyer sees as having the right values or approach towards change. A lawyer may empower certain critical voices, but in building power for some, the lawyer strengthens some narratives as opposed to other important voices. That client selection process can replicate oppressive dynamics that the movement is already struggling with.

A Zealous Advocate For Many Movements

A lawyer may have multiple clients as long as a lawyer can be a zealous advocate, free from conflicts of interest. Nothing except time, resources, and possible conflicts keeps a lawyer from working on many movements. Movements do not always have neat borders: take the civil rights movement, for example, in which the fight for racial justice also overlapped with the fight for economic rights, as well as with many other struggles. With too few movement lawyers, this flexibility can allow a good movement lawyer to match their skills and ideology across movements.

In a movement, a critical question is what values a person must hold to participate. Yet, nothing says that a lawyer must wholeheartedly endorse, or even strongly agree with, the activist or organization. …

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