CAPULONG. Client Activism in Progressive Lawyering Theory

Click here to load reader

  • date post

  • Category


  • view

  • download


Embed Size (px)

Transcript of CAPULONG. Client Activism in Progressive Lawyering Theory

  • 7/27/2019 CAPULONG. Client Activism in Progressive Lawyering Theory


    + 2(,1 1/,1(

    Citation: 16 Clinical L. Rev. 109 2009

    Content downloaded/printed from

    HeinOnline (

    Tue Jul 27 12:21:53 2010

    -- Your use of this HeinOnline PDF indicates your acceptance

    of HeinOnline's Terms and Conditions of the license

    agreement available at

    -- The search text of this PDF is generated from

    uncorrected OCR text.

    -- To obtain permission to use this article beyond the scope

    of your HeinOnline license, please use:


  • 7/27/2019 CAPULONG. Client Activism in Progressive Lawyering Theory



    Fosteringactivism ha s always been central to progressive law-yering theory. Every approach to the progressivepractice of law ha scontemplatedas an essentialingredientsome form of client activity-be it collective mobilization, civic participationor simply empower-ment. This Article traces the conceptualizationof client activism inprogressive legal scholarship and argues that its complex and dy-namic naturehas been undertheorized.Historicizingand disaggregat-ing its variousforms, the Article calls for a socially contextualizedanalysis and differentiationof divergent aims and methods as precur-sors to defining the lawyer 's role in popularactivism and fundamen-tal socialchange.

    INTRODUCTIONFostering activism has always been central to progressive law-

    yering theory. Without exception, every approach to the progressivepractice of law has contemplated some form of client activity or con-nection with other activism-be it mass movement and mobilization,militant protest, direct action, organization-building, civic participa-tion or simply individual empowerment-as an essential ingredient.For many progressive lawyers, in fact, client activism is the primaryobject of legal advocacy. It is both means and end, powering efforts atreform and fulfilling the promise of democracy-even revolutionarytransformation. For these lawyers, the key question driving legal prac-tice is not what will ensure legal victory, but what will motivate, sup-port and further effective activism. Only organized, politicized massaction from below, these lawyers hold-not law reform-producesfundamental, lasting social change. Indeed, this unique objective dis-tinguishes progressive lawyering from liberal-legalist practice, whichfocuses intently on legal reform, secured by expert litigators, policy

    * Assistant Professor of Law, University of Montana. I ow e an enormous debt to manypeople for reading and commenting on earlier versions of this paper: the 2007 NYU Law-yering Faculty, especially Tigran Eldred and Brent White; and the 2008 Clinical Law Re-view writers' workshop, especially Ascanio Piomelli, Mary Helen McNeal, Kate Kruse andSteve Berenson. I also thank Diana Yoon, Rina Pal, Derf Johnson and Amanda Hill fortheir excellent research assistance. Finally, I thank Rebecca Weston, who not only read,commented and provided invaluable insight on this paper, but also sustained me through-out the long process of writing it.

    HeinOnline -- 16 Clinical L. Rev. 109 2009

  • 7/27/2019 CAPULONG. Client Activism in Progressive Lawyering Theory



    analysts and lobbyists.'1 In this Article, I use the term "liberal-legalist practice" to describe lawyering aimed

    primarily at legal reform. As Karl Klare describes, liberal-legalism isthe particular historical incarnation of legalism ("the ethical attitude that holdsmoral conduct to be a matter of rule-following"), which characteristically serves asthe institutional and philosophical foundation of the legitimacy of the legal order incapitalist societies. Its essential features are the commitment to general "democrati-cally" promulgated rules, the equal treatment of all citizens before the law, and theradical separation of morals, politics and personality from judicial action. Liberallegalism also consists of a complex of social practices and institutions that comple-ment and elaborate on its underlying jurisprudence. With respect to its modern An-glo-American form these include adherence to precedent, separation of thelegislative (prospective) and judicial (retrospective) functions, the obligation to for-mulate legal rules on a general basis (the notion of ratiodecidendi), adherence tocomplex procedural formalities, and the search for specialized methods of analysis("legal reasoning"). The rise and elaboration of the ideology, practices and institu-tions of liberal legalism have been accompanied by the growth of a specialized, pro-fessional caste of experts trained in manipulating "legal reasoning" and the legalprocess.Liberal legalist jurisprudence and its institutions are closely related to the classi-cal liberal political tradition, exemplified in the work of Hobbes, Locke an d Hume.The metaphysical underpinnings of liberal legalism are supplied by the centralthemes of that tradition: the notion that values are subjective and derive from per-sonal desire, and that therefore ethical discourse is conducted profitably only in in-strumental terms; the view that society is an artificial aggregation of autonomousindividuals; the separation in political philosophy between public and private inter-est, between state and civil society; and a commitment to a formal or proceduralrather than a substantive conception of justice.

    Karl Klare, Law-Making as Praxis,40 TELOS 123, 132 n.28 (1979). See also LAURA KAL-MAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996) (confining definition of legalliberalism to court-oriented reform). Thomas Hilbink calls this type of practice"proceduralist" or "elite/vanguard." Thomas M. Hilbink, You Know the Type...: Catego-ries of Cause Lawyering, 29 LAW & SOC'L INQUIRY 657 (2004) [hereinafter Hilbink, Cate-goriesof Cause Lawyering]; see also Thomas Hilbink, The Profession,the Grassroots& theElite [hereinafter Hilbink, Profession,Grassroots& Elite] in CAUSE LAWYERS & SOCIALMOVEMENTS 60-83 (Austin Sarat & Stuart A. Scheingold, eds., 2006) [hereinafter CAUSELAWYERING III].Th e prototypical example of this type of practice is that done by the National Associa-tion for the Advancement of Colored People Legal Defense and Education Fund or theAmerican Civil Liberties Union, in which lawyers choose cases-and plaintiffs-based onsocial change strategies they formulate with little or no input from clients and client organi-zations. For other summaries of liberal-legalist practice, see Sameer M. Ashar, Law Clinics& Collective Mobilization, 14 CLIN. L. REV. 355, 413, n.224 (2008) (summarizing AscanioPiomelli's description of liberalism as marked by "its extreme preference for individualrather than group identity, analysis, and remedies; its aversion to focusing on issues ofpower, rather than formal rights; its discomfort with radical democracy and its fear of pop-ular passions/excesses; its assumption that the legal system alone is sufficient to make thevery small, incremental adjustments necessary to move from status quo to social justice; itspresumption of rational expert professionals' greater ability to diagnose, design, and imple-ment necessary social remedies; and its concomitant skepticism or hostility toward the abil-ity of low-income and working-class people to do the same; its valorization of judicialreview and the importance of checking popular opinion and democratic agitation") (inter-nal citation omitted); Ruth Margaret Buchanan, Context, Continuity,& Difference in Pov-erty Law Scholarship,48 U. MIAMI L. REV. 999, 1020-22 (1994) (describing liberal legalistpractice as "incremental and procedural" in nature). It bears noting, however, that even

    [Vol. 16:109

    HeinOnline -- 16 Clinical L. Rev. 110 2009

  • 7/27/2019 CAPULONG. Client Activism in Progressive Lawyering Theory


    Client Activism in ProgressiveLawyering Theory

    Yet legion though the literature is that has enshrined this bedrockcommitment, progressive lawyers and theorists have paid insufficientattention to the full range of factors that define this unusual profes-sional project. At times, client activism is an unexamined given, war-ranting no more mention than as a perfunctory, even utilitarian,statement of purpose. 2 And when progressive scholars, practitioners,activists and other commentators do examine it, they tend to do sowithin the confines of formalist, apolitical and transhistorical legal andorganizing method, imparting important-indeed, for those of us com-mitted to this project, canonical-lessons, but remaining disappoint-ingly impressionistic about their analyses of the attendant, extra-legalforces that shape their mercurial objective.This should not be surprising. After all, client activism is not for-mally a province of traditional lawyering theory. Mainstream prac-tice-individualist to begin with-contemplates a passive client reliantupon an attorney who acts, typically alone, on his or her behalf. In-deed, it is only with the "lawyering" 3 and "law and organizing ' '4 litera-ture that client activism has cohered as a distinct focus of scholarlyinquiry.

    But there are other reasons. Although birthed by the socialmovements of the 1960s and early '70s, progressive lawyering the-ory-the broad set of strategies and tactics progressive lawyers andtheir activist partners have developed to advance their cause 5-ma-liberal-legalist practice has roots in and is intertwined with client activism. See, e.g., SA-MUEL WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU (1990)(discussing grassroots activism t