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 Abstract

Excerpted From: Luz Herrera and Louise G. Trubek, The Emerging Legal Architecture for Social Justice, 44 New York University Review of Law and Social Change 355 (2020) (241 Footnotes) (Full Document)

The publicity generated by lawyers' resistance to the Trump administration has again brought lawyers to the nation's attention as defenders of justice. People chanted, “let the lawyers in” at airports across the country after the enactment of the travel ban against individuals from seven Muslim countries. Public interest organizations such as the American Civil Liberties Union (ACLU) led the litigation against the travel ban with substantial support from immigration law scholars, immigrant rights clinics, and pro bono lawyers. The “Me Too” movement is another widely known social justice campaign generating lawyer activism. Women from all economic backgrounds are speaking up about longstanding injustices in the workplace, and their activism is leading to legal action.

In the Trump Era, we see the complexity of law. Law helps to fight injustice, but it also sanctions abuses. For example, executive privilege can both provide temporary relief from deportation to minor undocumented children and also shield corruption. The new progressive activism among lawyers is shedding light on an ongoing transformation of public interest law. Where public interest lawyers once primarily relied on a legal liberalist perspective to orient and justify their practices, a more inclusive strand of public interest thinking is making its way to the forefront. While law and lawyers continue to be important in defining and defending the rule of law, critical lawyers are approaching law differently than did prior generations by engaging more with communities, capitalizing on technology, and broadening their base of support to achieve sustainability.

In 1991, Professor Trubek coined the term “critical lawyers” to refer to lawyers who sought “to empower oppressed groups and individuals” and focused on forging a path to achieve “a more just society.” She argued that in approaching their work, critical lawyers should “encourage participation, personalize the issues, be skeptical of bureaucracy, be unbiased in approach to advocacy arenas, organize with other lawyers, and apply feminist and anti-racist analyses.” Almost thirty years later, we resurrect the term 'critical lawyer’ to describe lawyers who care about social justice and who are establishing law practices that are transforming public interest practice. These lawyers view themselves as central to the future of the legal profession. They regard law as just one tool for combating inequality and abuse of power. Today's critical lawyers are interested in advancing social justice by introducing new approaches to law practice. These practices represent a shift in generational thinking about how to be a progressive lawyer. We use the term 'critical lawyer’ to distinguish the more traditional public interest law models and other social justice inspired models such as movement lawyering.

Influenced by social entrepreneurship principles, critical lawyers are more innovative in their practices, sustaining themselves through a wider range of resources. They draw on their non-legal experiences and their communities to inspire their visions, and they seek to develop scalable models. Today's critical lawyers build practices that have broad coverage, flexibility, and long-term sustainability. These practices do not resemble the dominant public interest law model of past decades. They offer a more diverse, more connected, and more grassroots understanding of how law can support the quest for justice for disenfranchised populations. To democratize law practice, they engage more directly with clients and communities, encourage diversity and inclusion, and utilize a broad spectrum of resources. These new law practices are often members of networks that offer peer support for similarly situated practices across geographic boundaries. These law practices seek to build a more just society by amplifying the voices of the communities they represent.

This Article presents three examples of law practices that illustrate the differences between the old public interest approach and the emerging critical lawyer model with its new social justice mission. The first example of a critical social justice law practice is Beyond Legal Aid, formerly known as Community Activism Law Alliance. Beyond Legal Aid is a network of community-allied lawyers in Chicago that work with community organizations to provide needed legal services to the organizations and their constituents. Beyond Legal Aid advances a vision of community-based change through local alliances. It provides legal services to underserved communities through group activism lawyering, as opposed to direct legal services. Recently, a Beyond Legal Aid lawyer worked with an individual referred by the Vietnamese Association of Illinois who had been waiting years for a decision on his U.S. citizenship application. Beyond Legal Aid successfully helped the client obtain citizenship after filing a lawsuit to ensure their application was processed. The representation involved client self-help, advocacy by a community group, and traditional lawyering. Lam Ho, the founder of Beyond Legal Aid, views himself as a social entrepreneur. To advance his work, he accepts funding and volunteers from a broad base of supporters. He understands that power comes from working collectively. His life experience as an Asian-American from a poverty background informs his politics and his law practice.

The second example, Law for Black Lives, is a national network of “radical lawyers and legal workers committed to building a responsive legal infrastructure for movement organizations.” Law for Black Lives works on a variety of issues supporting the Black Lives Matter movement, including policing reforms and reparations. The organization stresses inclusion of the experiences of women and gender non-conforming individuals. Identity and community power are essential for Marbre Stalhy-Butts, the executive director of Law for Black Lives. Stalhy-Butts views lawyering as political and believes that it is important to use the law to help grassroots movements achieve their legal and political goals. Law for Black Lives employs technology to connect community organizations with lawyers and law school resources, such as clinics and pro bono projects. Through these connections, community organizations seeking social justice reforms can secure legal resources. While it currently supports itself primarily through foundation funding, the organization is exploring how to become self-sustaining through a membership model.

A third example of public interest law transformation is TIME'S UP Legal Defense Fund, a national group that addresses sexual harassment. TIME'S UP is part of the #MeToo movement that seeks to end sexual harassment in the workplace. TIME'S UP connects individuals with sexual harassment experiences to a network of private practitioners and pro bono lawyers who address legal issues related to sexual harassment. Numerous nonprofit organizations with a history of working with women to eliminate sexual harassment collaborate with TIME'S UP to connect survivors to a network of lawyers who can provide legal and non-legal support. TIME'S UP assists in identifying and funding lawyers when needed, provides media assistance, and helps gather other community resources for the clients. It creates alliances with labor groups, people of color, and LGBTQ clients. It also connects lawyers to “know your rights” trainings and other activities essential for their constituencies. TIME'S UP created a project to research and craft policies to combat sexual harassment and other forms of workplace discrimination. Its chief executive is an experienced figure who says, “we are having a global conversation around the workplaces, around the role of women and gender equity in a way in three decades I've never seen before.”

These examples reveal a transformation of law practices engaged with social justice movements. They reflect ideas and institutions that are still developing. Their visions differ from the mainstream public interest discourse of previous generations. Each is unique and still finding its way, but we highlight three common elements. The first is their ability to integrate lawyer identity into their approach. As more lawyers enter the profession with backgrounds similar to their clients, new ideas can emerge. The second is the centrality of community and client engagement for effective legal practice. Alliances with community and client groups are essential for social justice lawyering. The third is the exploitation of all possible resources to achieve sustainability. The new practices do not eschew traditional nonprofit funders, but they also include for-profit models, campaigns for small donations, and greater use of volunteered expertise. Their innovation is based on their willingness to engage public and private resources to advance their social missions in innovative and entrepreneurial ways. TIME'S UP is particularly interesting since it is housed in the National Women's Law Center--a traditional public interest law center founded in the 1970s. New critical lawyer practices are giving shape not only to Beyond Legal Aid and Law for Black Lives, but are also influencing the more traditional public interest law practices.

Their approach to social justice requires the participation of empowered communities. These lawyers work with communities by offering their technical expertise to interact with the legal system. The sustainability of these law practices relies heavily on the engagement of the community they are built to support. These law practices expand the capacity of their work by engaging networks of contributors such as donors and volunteers to help build and maintain their organizations. Critical lawyers create and engage networks through the use of technology. Their practices operate and grow through a system of nodes and networks. The practices themselves are community-powered nodes that bring more than legal expertise to the task of social justice advocacy. They use technology to grow and connect with peers across geographic distances in ways that earlier generations of lawyers and organizers were unable to do. They create or embed themselves in national and global networks that amplify the impact of their work. This nodes and networks architecture relies on peer support and multiple sources of leadership for sustainability.

This Article describes the emerging legal architecture for social justice law practice. Critical lawyers are refashioning the tools created by the public interest law and access to justice movements in order to deal more effectively with the complex challenges of social justice lawyering. These practices represent a shift in generational thinking about how to practice and influence law. We refer to these as 'critical law’ practices to distinguish them from the earlier public interest law models.

Part II.A explores how legal liberalist theories influenced public interest law and describes critiques of those models. It briefly outlines the legal theories that contribute to the critical law practice perspective that challenges the traditional public interest law approaches. Part II.B reviews the environmental factors that serve as drivers for the new social justice practice architecture. The drivers are shifting law school demographics, evolving priorities for legal education, and incorporating new tools in the practice of law.

Part III explores the key elements of critical law practices. These elements are interest in building inclusive workplaces, integration of community and client collaboration in legal work, and financial sustainability plans that include a broad base of resources. Part III also explores the changing interests and profile of today's philanthropic contributors.

Part IV explains the components of the new architecture that critical lawyers are using to build social justice law practices. We argue that the architecture links critical lawyers with communities as collaborators, and that critical lawyers use a system of nodes and networks facilitated by technology to expand their reach. The system permits scaling up regionally, nationally, and potentially globally. The Article concludes by showing how law schools and peer support groups are essential to support the architecture that these lawyers and practices need to be successful.

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This article offers an overview of the theoretical foundations and the environmental factors that inform critical lawyers. Many of these lawyers are emboldened by the racist, sexist, and xenophobic policies and sentiments of the Trump administration, and they are encouraged by the political awakening occurring among moderates around issues of race, gender, immigration, and inequality. They are seizing the moment to move beyond outdated models of public interest law that no longer fit our technology-driven, diverse world. Some of these lawyers are tapping into their identities to help advocate for similarly situated individuals. The current cadre of social justice-inspired lawyers are part of a larger cohort of individuals who believe that it is time for previously marginalized ideas to become mainstream. The legal liberal vision of how law can effectively produce a just society is outdated and ineffective. Critiques of that vision now serve as a basis for new practice methods. Critical lawyers, in alliance with community organizations and clients, are finding new ways to use legal resources to facilitate a more just society.

The practices we highlight are reconceptualizing how to use law to empower immigrants, to collaborate with women harassed at the workplace to tell their stories, and to fight back against mass incarceration. Partnerships with communities and causes are democratizing how lawyers work with clients and communities. Broadening the funding base and working with activists is creating a more equal relationship between lawyer, cause, and client. Critical lawyers envision an architecture that permits cross-boundary relationships, collective action, and a more democratic utilization of law. The lawyers, practices, and architecture we describe contain the seeds of viable and scalable models to advance social justice in today's milieu. These practitioners' visions are not limited by traditional views on who can support their efforts or how to advocate. They understand that the emergence of a social justice architecture requires an entrepreneurial approach that engages a variety of donors, plugs into networks, and sustains itself through peer support. Law schools can be key transmitters of this architecture by supporting social justice efforts. They can provide space, administrative support, and more post-graduate entrepreneurial opportunities. These new critical lawyers are emerging as essential elements for the future of U.S. society.

Luz E. Herrera is a Professor and Associate Dean for Experiential Education at Texas A&M University School of Law.

Louise Trubek is Clinical Professor of Law Emerita at the University of Wisconsin Law School. 

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