This is part of our symposium on the legal representation of poor people.
The question of how to put LPE into practice in legal services work naturally raises questions around methodology: who should elucidate and fulfill an agenda for life-affirming social change, and how should we go about it? More specific to lawyering, who should occupy the role of a lawyer fighting alongside her clients for racial and economic justice? These questions run together with epistemological questions about the origins of positions lawyers take on behalf of politically marginalized people, and they are central to today’s powerful movements, including movements building family power.
In reimagining the state- a central concern of LPE praxis- our anchor is always the people who know its brutality best. In other words, the law means what it means to those subject to it. A direct service lawyer’s proximity to these individuals and communities is an important social location, positioning them to illuminate practices on the ground. The value of this position depends on its relation to surrounding organizations. When part of a larger movement for social change, direct service lawyering can inform a movement’s agenda and serve as a pipeline to organizing for impacted people not already involved. When confined in the nonprofit industrial complex, or NPIC, the direct services lawyer can become isolated, depoliticized and demoralized.
The NPIC is a factor Professors Hershkoff and Loffredo argue accounts for at least some of aspiring attorney’s aversion to legal services work. It is true that the NPIC is alive and vile. It is a constellation of institutions subject to capitalist and state interests that use nonprofits to manage and control dissent by incorporating them into the state apparatus, functioning as a “shadow state” that reinforces the very structures groups intend to dismantle, writes Ruth Wilson Gilmore and others. But it is the institutional reality of most- but not all-direct services lawyering, and it must be approached strategically.
Rebellious lawyering that undermines the NPIC is uniquely difficult, even more so from within. It involves skills not valued or taught in most law schools, like coalition building, campaign development, and media skills. It also depends on a lawyer’s ability to self-educate, willingness to be humble, and creativity in leveraging their position. Usually it is not high-profile work, and, to Professor Hershkoff and Loffredo’s point, salaries are low and hours long. But of the axes to grind with legal services work, most glaring–and telling–is “status anxiety around ‘service’ work.” Perhaps these lawyers know themselves well enough to predict that in a legal service lawyer’s role they would eschew the approach necessary to truly animate the position. I would agree that such lawyers who fret proximity to clients would do well to stay away, lest their work undermine struggles for racial and economic justice.
To be sure, the violence inherent in legal services practice is not lost on me. As a new attorney I practiced in the grotesque arena of family regulation. In order to be effective, attorneys are required to develop relationships with judges and other attorneys, people who embody the system we oppose. Raising racial inequities or unfairness in individual cases, even when specific examples exist, is highly discouraged and disfavored. Attorneys are advised by supervisors, and indoctrinated through the culture of family court practice, to encourage clients to participate in the government’s services in order to “speed up” the case, and to develop and maintain a good relationship with the caseworkers. These practices are emblematic of NPIC-driven lawyering, protecting the status quo and furthering harms.
Activists and scholars are finally beginning to expose what families subject to state intervention have long known: players in the family regulation system are foot soldiers of the neoliberal police state. Through its roots in racialized capitalism and market ideology writ large, the system exploits crises and chaos of its own making, simultaneously abandoning and controlling race-class marginalized people. And so to grasp contemporary family regulation, one must school themselves on the history of American slavery, Native American genocide, attachment theories, poverty, perhaps take a crash course in the science of abusive head trauma, and so much more, all while serving clients and working against the forces of the NPIC.
Family defenders’ arsenals are stocked with other powerful tools beyond history, theory, thematic knowledge and mean cross examination skills sharpened in emergency hearings that fling attorneys into on-the-spot trials. Their knowledge is grounded in their daily work in courts and in partnership with their clients–rich sources of information and knowing. Unsurprisingly, powerful movement building and scholarship are born from these practices and relationships. And growing networks fighting against family regulation can support other movement’s responses to state shapeshifting maneuvers, like where politicians responding to calls to defund police seek to shift those funds to “youth services” and social workers. Strong coalitions–comprised in part by family defenders–are deeply capable of exposing these mutations masquerading as transformation.
But most lawyers don’t arrive to practice with the experience that would allow them to responsibly participate in drawing blueprints for radical social change; they learn from their clients. My colleague Greg Louis acknowledges the debt we owe our clients who teach us that “the law” is not jurisprudence; that it is legal actors, not statutes or decisions, that disenfranchise the poor. I agree and would draw culpability even broader: families are not destroyed by a single judge or caseworker, so much as by American traditions, values and prerogatives. “The destroyers are merely men enforcing the whims of our country, correctly interpreting its heritage and legacy,” writes Ta-Nehisi Coates. Deep understanding of the systems we intend to transform is not possible without proximity to the execution of the law on the ground.
LPE-oriented lawyers know that when practiced in connection with a movement, legal services work is anything but boring. It is multi-faceted, complex, and challenging to traditional ideas of the role lawyers play in the larger picture of transformative social justice. It draws on what Adam Liptak refers to as “the music rather than the logic of law,” and what Kiese Laymon calls “echo”. Recent reforms to New York’s Social Services Law are one example. A coalition of parent’s rights activists, family defenders, and others successfully campaigned to shorten the time before records of neglect are sealed and raise the standard of evidence officials need to escalate an investigation. This approach to lawyering might appear to involve work situated at differing degrees of abstraction- engaging narrow questions of law in a particular case while also parlaying that information to larger scale efforts- but an essential part of our work is to draw connections between them; to evaporate the distinctions between theory and practice in a field soaked in decontextualized, disembodied praxis.
As we create a framework that ensures “conditions of possibility” we ask those who have experienced a profoundly anti-democratic state to dream. Legal services lawyers stand beside their clients every day, pushing forward dreams that may seem incremental, or not big enough, to those unfamiliar with the visceral nature of violence, the only language the state speaks to politically marginalized people. Bearing witness to and participating in this violence will cause discomfort, and my guess is that those concerned with prestige will be loathe to embrace it. But in the world I want to live in–and I’m certain readers of the blog will agree–intergenerational joy is a worthy dream, and it is big enough. Lawyers have a place at the messy, frenetic, stunning table where we will build out this dream, but only if they are willing to occupy different and multiple chairs, or sometimes, none at all.
Julia Hernandez is Assistant Professor of Law at CUNY School of Law.