2009 Lawyer activism, Eduardo Capulong, from the Scholarly Forum @ Montana Law

This should not be surprising. After all, client activism is not formally a province of traditional lawyering theory.  Mainstream practice – individualist to begin with – contemplates a passive client reliant upon an attorney who acts, typically alone, on his or her behalf.

Indeed, it is only with the “lawyering” and “law and organizing” literature that client activism has cohered as a distinct focus of scholarly  inquiry.  But there are other reasons.

Although birthed by the social movements of the 1960s and early ’70s, progressive lawyering theory – the broad set of strategies and tactics  progressive lawyers and their activist partners have developed to advance their cause – matured during a subsequent period of prolonged political conservatism that has been defined largely by the absence of sustained mass movements and the eclipse of the radical political ideologies and militant organizations that propelled them.

For the past three decades, neoconservative and neoliberal politics have reigned supreme.  In this period, two divergent, but equally  limited, theoretical currents emerged.  On the one hand, under the banner of liberal public interest law, lawyers substituted their own  advocacy and leadership (usually through litigation) for grassroots activist efforts.  On the other hand, influenced by postmodernist, poststructural and identity-based social theories, many progressive lawyers turned inward, to ideological and parochial concerns, eschewing “meta” theories –  the political economy and class analysis in particular – in favor of a narrower preoccupation with the local dimensions of political activism, the lawyer-client relationship and the lawyer’s professional role.

Despite key differences – the most important of which is the explicit centrality of client activism in the latter approach – both theoretical currents share common ground.  First, notwithstanding progressive lawyering theorists’ commitment to fundamental social change and social movement-building, proponents of both camps either accept existing institutional arrangements (albeit critically) or are reluctant, unable or unwilling to articulate alternative normative visions.

Second, while scrutinizing legal practice, progressive theorists, like their liberal-legalist rivals, undertheorize the concomitant historical, social, economic and political forces at work and the state of client activism writ large.

And third, while committed to grassroots activity, progressive lawyering theorists rely presumptively – and often uncritically – on a similarly narrow band of approaches – “community organizing” and “mobilization,” rather than litigation and policy advocacy – as the primary and, at times, only models for political activism.

In short, progressive legal scholars have paid too much attention to lawyering (by which I mean professional role) and too little attention to carefully scrutinizing client activism – in particular its aims, contexts and methods.

The result: mechanical prescriptions that, at best, reinforce formalist (if pluralist) strategy and, at worst, miscalculate the lawyer’s role in promoting client activism and social change.  In this Article, I argue that the aims, contexts and methods of client activism are paramount in progressive lawyering theory, and therefore precede and define the question of how progressives should lawyer.

Progressive lawyering scholarship – in the fields of poverty law, clinical practice, critical theory, public interest law, and law and society – is  an invaluable resource for activists. Making full use of this literature, I suggest, requires precursory paradigms that:

• clarify the ultimate political goals to which activism is and should be directed;
• analyze the social conditions shaping and defining grassroots activity; and,
• specify and systematize the myriad methods that can and should be used to further these ends.

Progressive lawyers engage in these analyses by necessity and know intuitively that there are no mechanical lawyering formulae to building, sustaining and growing client activism.

In critiquing prevailing theoretical formulations that relate to these considerations, I argue that progressive lawyers need to go beyond law, lawyering, community organizing, mobilization and social movement-building, and develop a framework for more finely analyzing political aims, contexts and activist methods.

In Part I, I summarize the various, at times conflicting, lawyering approaches to fostering activism.

In Part II, I trace the evolution of these approaches since “people’s” and “poverty” lawyers began addressing the question in the 1960s. Situating discussion of lawyering theory in historical context, my aim is to sketch an intellectual history of progressive lawyering and illustrate the decisive role of social, political and economic circumstances on theoretical development and emphases.

In Part III, I critique the theoretical limitations I have identified and argue that activists need to clarify their alternative normative visions, carefully analyze the overarching nature of ever-changing social conditions, and broaden, deepen and systematize their understanding of popular activism.  Here, I join the efforts of other scholars to situate the development of progressive lawyering theory in historical context and move it in a broader, interdisciplinary direction, including taking such “macro” historical factors into account,” examining its political  foundations and “pass[ing] through the door” of social movement and organizing literature.