The Transposition of Power: Law, Lawyers and Social Movements

Various groups of people have been the victims of oppression throughout time and across national borders and cultures. Many forms of oppression continue to exist all over the world today, including in the United States. I have been particularly concerned with oppression on the basis of race. The responses to oppression have taken many forms, ranging from passivity and acquiescence to rebellion. Much of the response, however, takes place between these extremes, often in the form of ongoing collective action by more or less organized groups. Broadly speaking, these actions have come to be known as social movements, and they have been the subject of a great deal of scholarly examination. Through this scholarship, we have learned much about the nature of social movements, who joins them, and how they have been able to succeed. We have not learned as much about how the law and lawyers affect such movements and how, if at all, law and lawyers contribute to their success. I would like to examine these issues in an effort to elucidate the relationship between law, lawyers, and social movements and to better understand how lawyers can be helpful (or detrimental) to such movements. My own interest in this field is somewhat more narrowly confined. For example, I have been skeptical of movements and lawyers who set as their goal the establishment of new or expansion of existing legal rights. New rights do not seem to have much social or political impact on subordinated groups, unless the holders of those rights have the power to enforce them. As an alternative to the rights discourse, I have been interested in the acquisition and utilization of power by marginalized and oppressed groups in the United States. Even more narrowly, my research has focused primarily on issues affecting the urban poor. Historically, there has been a significant intersection connecting social movements to urban poverty. The Civil Rights Movement, the Welfare Rights Movement, the Affordable and Fair Housing Movements, the Affordable Health Care Movement and the Black Lives Matter Movement among others, have had significant impetus from and impact on the urban poor. Many of these movements succeeded in creating new rights for various groups. Many were successful in changing, to some extent individual lives and social environments. Nevertheless, we see today a society where wealth and well-being are even more polarized, often on the basis of race, and groups of people who remain subject to the same forms of intergenerational oppression as those faced by their long departed ancestors. These groups continue to exist on the wrong side of what I have previously called the “power deficit.” If this assertion is correct the dedicated and well-intentioned efforts of lawyers have had only marginal results. Thus, I take the position, as do several others, that lawyers who work with oppressed groups must assist them in gaining and using power rather than pursuing rights as an end in themselves. That being said, there is little consensus among social scientists, philosophers, and lawyers on the meaning of power and virtually no legal literature on how it can be obtained and used (although a fair amount exists on the need to obtain and utilize it). “Of all the concepts used by sociologists, few are the source of more confusion or misunderstanding than power.” My intention in this paper is to dispel some of that confusion and to attempt to illuminate some issues concerning power in relation and as a response to oppression

Community Economic Development and the Paradox of Power

This article starts from the premise that poverty is a growing problem in the United States. Intergenerational poverty, the entrenchment of a class of very poor people, is a major sub set of that problem and is tied very closely to the issue of race. The author claims that missing in the fight by the poor and their allies against stratified poverty is the creation and utilization of power. This paper examines the disparate ways in which commentators have defined power. It suggests that those seeking to obtain power must understand the concept’s varying meanings and direct their activities to meet their own understanding of the concept. Community Economic Development (CED) may be nothing more than a re-affirmation of existing power relationships or it may be the cause and the result of a change in those relationships. This paper attempts to make sense of this apparent paradox

Another Model of Low Income Housing Tax Credit Development: Building Housing and Building Capacity

This paper was first delivered at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School. It addresses the creation of community institutions able to acquire and wield power in the affordable housing realm. While this ability has generally been associat4ed with buildings purchased and operated by tenant groups, the paper suggests other affordable housing situations, particularly those developed under the Low Income Housing Tax Credit program, in which the accretion of power can occur. It proposes a model of tenant involvement in development and operation of affordable rental housing that can, in certain circumstances, create the type of durable institution normally associated with ownership

Community Economic Development: A Reflection on Community, Power and the Law

In this Article, Professor Diamond explores the nature of community. He specifically examines the potential for economic development as a means for achieving the growth of political power and institutions in economically depressed neighborhood communities and the proper role of the neighborhood attorney in facilitating this expansion

Criminal Responsibility of the Addict: Conviction by Force of Habit

This article addresses questions of criminal responsibility of drug addicts in light of Robinson v. California, holding criminal sanctions for a status of drug addiction to be unconstitutional under the eighth amendment. The article evaluates key court cases relating the insanity defense, and argues that in cases where addicts commit criminal acts as a result of drug addictions, the addict should not suffer criminal penalties but should instead be treated through rehabilitation facilities or other methods

Affordable Housing: Of Inefficiency, Market Distortion, and Government Failure

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities. My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units that are currently missing. I suggest a series of reasons why, in the face of this potentially inefficient outcome, the market/society does not produce the required units. The essay is conceptual in nature, not empirical. I recognize the issues associated with the quantification of often opaque costs and with their causal relationship to the lack of affordable housing. It is clear, however, that the costs are sizable and the correlations are strong and therefore, I believe, the hypothesis requires empirical study

Community Lawyering: Introductory Thoughts on Theory and Practice

There are several fundamental questions that one might ask in seeking the meaning of the term community lawyer. Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term community. For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the former. In this essay, I would like to elaborate on both of these issues and then bring these ideas together to develop a concept of community lawyering. I will then discuss some practical applications of community lawyering in the context of an affordable housing program I run at the Georgetown University Law Center

Affordable Housing and the Conflict of Competing Goods: A Policy Dilemma

This paper, which was the keynote address at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School, is designed to point out the conflicts between various competing social “goods” in relation to the provision of affordable housing. In a world of finite resources in which competing goods cannot both be maximized at the same time, when the goods are incommensurable, how ought a society choose among them? The paper focuses on such issues as preservation of affordable housing and wealth creation; affordability and handicapped accessibility or green development. It examines various methods of societal choosing and provides a critique of each such method. It then cautions policy makers to be conscious of these incommensurable goals and to determine how to prioritize them

Leaders, Followers, and Free Riders: The Community Lawyer’s Dilemma When Representing Non-Democratic Client Organizations

This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups

Community Lawyering: Revisiting the Old Neighborhood

Lawyering for poor and subordinated clients has been the subject of significant re-examination over the past decade. Many commentators have provided a critique of traditional lawyering models and some of them have developed new patterns of “community lawyering.” Too often, however, these new models incorporate many of the shortcomings of the traditional model. In particular, they often see the law as a significant part of the answer to the problems of poverty and subordination. While they speak in terms of client empowerment, they focus primarily on the relationship between a lawyer and a client (who is typically an individual). Even when they focus on the products of the lawyer-client relationship, the product tends to be the creation or enforcement of legal rights. This paper argues that a relational or rights based analysis of the lawyer\u27s role is insufficient to address the real problems of poverty. It begins by reiterating a position that is widely held among progressive lawyers; that the struggle against subordination requires community organizing and collective action. It goes on to discuss the definition and nature of community and the role of a lawyer who seeks to represent “community” interests. Communities are not monolithic and incorporate many different, often competing, views. How should a lawyer distinguish between these views and choose clients so as to maintain a coherence in his or her practice? How should a lawyer relate to a group once a client is chosen? And most importantly, what role should a lawyer play in assisting a client to plan and implement strategies? The paper argues that these strategies often need to be political, not merely legal, and that community lawyers or, as the author has dubbed them, activist lawyers, must participate in building an integrated strategic plan and in its implementation