Lawyers, Loyalty and Social Change

Fundamentally, cause lawyers engage in their work to make social change. Scholars of cause lawyering have generated a robust and rich literature considering important issues, such as what kinds of advocacy strategies best generate social change and what features of the relationship between cause client and cause lawyer are critical to an engaged and mutual relationship. But, the literature has neglected a key aspect of the cause lawyer and client relationship: whether the particular kind of loyalty that exists as between them hinders or helps in achieving social change. This Article fills that void. It first illuminates the particular features of the kind of loyalty that is expected between cause lawyers and their clients, including features such as a mutually engaged relationship and a strict conception of friends and enemies. Labeling that loyalty as hyper-loyalty, this Article scrutinizes whether the extreme fidelity required by hyper-loyalty helps produce actual social change. Drawing on multiple fields, including negotiation and cognitive psychology, this Article demonstrates that hyper-loyalty impedes social change by limiting the range of relationships that can be explored as sites for problem solving. The Article offers a way forward, suggesting that hyper-loyalty be replaced by relational loyalty. The three key features of relational loyalty are: constructing the architecture of social change so that it is a connected web of relationships instead of dyadic and oppositional; approaching that web of relationships with curiosity instead of advocacy; and responding with compassion to all contained in the web of relationships. This Article argues that relational loyalty inculcates a helpful dynamism in relationships, which both preserves mutual engagement between cause lawyer and cause client, while also creating unexpected opportunities to craft innovative strategies or pathways to social change

What\u27s Love Got to Do with It?: Contemporary Lessons on Lawyerly Advocacy from the Preacher Martin Luther King, Jr.

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King\u27s religious values were not abstracted from their context, but rather gave life to a seemingly intractable contemporary problem of values clashing with law, so too can lawyers deploy contextualized religious values consistent with their professional obligations and roles. The article explores Dr. King\u27s essential concept, love in action, which he derived from his own Christian faith, and considers its corollaries in two other faith traditions, Judaism and Buddhism. The article then applies love in action in two typical lawyering situations - an initial client meeting and a settlement offer, and concludes that the preacher-like call of Dr. King for love in action can inspire lawyers as powerfully and appropriately as the calls to action of the advocate Dr. King

Are Clinics a Magic Bullet?

In the current conversation about reforming legal education, one of the constant refrains is that law schools must graduate students who are practice ready. Commentators go on to argue that for law schools to produce practice ready students, they must expand how they offer experiential learning. One potential way to do that is to expand clinical legal education programs. I worry that law schools (and others) are envisioning clinical legal education as a magic bullet that will solve all of the ills and imbalances present in current legal education. In this article, I demonstrate the unhelpfulness of the phrase practice ready, and dismantle the idea that clinical legal education, or any other singularly-focused intervention, can transform legal education. Building from key insights already made in clinical legal pedagogy, I offer an alternative vision of legal education as an ecology of learning, in which law school as a whole is understood to be an interconnected and interdependent system that is dynamic, changing, and in action. I articulate how understanding law school as an ecology of learning can advance innovative changes - both small and large - leading to graduates who have better chances of flourishing in the legal profession

Love, Anger, and Social Change

Emotions matter to social movement activists—including social movement lawyers. Emotions motivate activism and emotions sustain the long hard work of social change. Movement activists and lawyers know that from their own lived experiences. Further, when we listen to movement activists talk about their work, we hear them speak commonly about two emotions in particular—love and anger. To be a social movement activist (whether lawyer or non-lawyer) means to have passion about one’s cause, and to have a fire in the belly to keep going despite setbacks and slow progress. We hear activists and movement lawyers talk about how the love for their cause gets them out into the street to protest or keeps them resilient in the face of a hostile legal system. We also hear them talk about how angry they are about the wrongs they experience. What is missing is a clearer, more nuanced understanding and articulation of the role of emotions, particularly love and anger, in social movement work. This Article pulls together social science research studying emotions in social activism and political philosophy that considers the role of anger in society to challenge assumptions that we make about love, anger, and social activism. The Article demonstrates that we oversubscribe to love and anger in their reflexive, hot forms—the raised voice and rough gesticulations of anger, or the ardent loyalty of love that stridently demarcates “us” from “them.” Because we oversubscribe to the hot forms of emotion, when we intend to express emotion in its moral form (i.e., “I feel injustice.”), we mistakenly believe that form of emotion must also be expressed in a hot way. In other words, we discredit an activist, and activists discredit each other and themselves, as not really believing in the justness of the cause unless it is shown with hot emotions. This Article explores the problematic consequences of that oversubscription to hot, reflexive emotions. First, it is not clear empirically that hot emotions produce more social change or faster social change. Next, it is normatively fraught to base social change on anger. A constitutive feature of anger is its “payback wish.” As political philosopher Martha Nussbaum has articulated, anger’s payback wish means that change happens by one side denigrating the other rather than all sides finding a way to improve everyone’s lot. Dignity is better enhanced when all sides rise. The Article concludes that the better way forward for social movement activists and lawyers is to frame the motivating and sustaining emotion for their work as “fierce love.” Using the historical example of the work of Martin Luther King, Jr., and the contemporary example of “radical dharma,” the Article demonstrates how “fierce love” can generate dignity-enhancing, yet truly transformative, social change. The Article concludes by considering why and how fierce love is relevant to social change lawyers

Sensational Reports: The Ethical Duty of Cause Lawyers to Be Competent in Public Advocacy

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer\u27s commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization has built out its public advocacy

Transformative Silence and Protest

Social movement protests have become common place in the last several years. Images come easily to mind of protestors marching down streets holding signs and chanting. Just as easily, images come to mind of counter-protestors yelling back, and law enforcement engaging protestors, often trying to control them with notable force. This Article recognizes that protestors often engage with speech, silence and the law in very pragmatic, but important ways. How does a locality handle permitting for protests? Are there noise restrictions to know about? How likely will it be that law enforcement will be present and making arrests? If there are arrests, who will post bail? While those practical choices are important, focusing on those choices often means that protest gets framed as being about speech rights—who gets to speak and how, and who gets to control speech and how. That framing obscures that protest is as much about silence as it is about speech.That is true because protest is a deeply relational activity and choices about speech always involve choices about silence—or silencing. Similarly, the law is deeply relational as it sets up ways to order how people can, or cannot, engage and interact with each other. This Article posits that more carefully investigating the relationality involved in protest work unearths a new and powerful dynamic—transformative silence. The Article considers how transformative silence can upend the typical zero-sum qualities of protest, and can increase the possibility that protest can lead to social change

Sensational Reports: The Ethical Duty of Cause Lawyers to Be Competent in Public Advocacy

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer\u27s commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization has built out its public advocacy