Case Study 1: Movement Groups with Flat, Innovative Governance Structures

Black Lives Matter, Occupy Wall Street, the global justice/anti-globalization movement, the radical environmental movement of the 1990s, and other organizations have moved away from traditional hierarchical models of leadership within their movements in favor of more horizontal, “leader-full” structures or network models. More horizontal or network models have been used even when a group of people is engaged in what might ordinarily be considered “service” work, like disaster recovery and feeding the hungry. Relatedly, organizers of mass mobilizations may engage the support of lawyers even before these actions crystallize into a movement or formally structured organization—as informal governance structures exist in the planning and execution of these mobilizations. One example is the Ferguson Legal Defense Network, which formed under the direction of trusted lawyer contacts amidst the mass mobilizations in Ferguson in the aftermath of the police killing of Michael Brown Jr. This short contribution examines some of these non-traditional, social movement-based lawyer-client relationships, evaluates the accompanying professional responsibility challenges, and offers preliminary approaches. These challenges—though not insurmountable—require thought and a foundational understanding of the goals and methods of social movement organizations

Democratic Norms and Governance Experimentalism in Worker Centers

There is renewed focus on the means by which workers organize against extreme economic inequality and autocracy at work. Social movement organizations, first on their own and, more recently, in collaboration with labor unions, have originated creative sectoral bargaining strategies matched with workplace activism and direct action tactics. These organizations, called worker centers by activists, scholars, and funders, remain largely outside of the literatures on law and social movements, labor law, and non-profit law. These formations\u27 increasing salience in civil society invites empirical study of whether or how they promote worker voice and autonomy. This paper reports findings of a preliminary foray into such a study. Based on in-depth, semi-structured interviews with a mix of lawyers, executive directors, and organizers deeply involved in a variety of worker centers nationwide, we find these organizations are pluralistic in terms of their commitment to, and modes of incorporating, worker voice and worker leadership. We note variations among the organizations correlated with a range of factors, including racial, gender, lingual, and legal status characteristics of workers and organizational leadership. We find a major commonality among all organizations studied: worker centers pursue internal democracy because leadership deems it both instrumentally and intrinsically beneficial to the cause of improving working conditions and creating a more equitable political economy. We further examine implications of worker center governance models with regard to continuities and discontinuities with labor unions, in shaping organizational democracy and advocacy tactics, in confronting the iron law of oligarchy, with regard to scalability, as affecting social and political democracy beyond the organization, and in relation to legal regulation and funding models

DACA, Government Lawyers, and the Public Interest

This article examines why the U.S. Department of Homeland Security moved away from a prosecutorial-discretion model to the Deferred Action for Childhood Arrivals program (DACA) to screen immigrants out of the removal pipeline. This Article adds an empirical dimension to the extant conversation on that shift. Drawing from seventeen interviews with political appointees within the executive branch during the Obama administration, as well as documents obtained under the Freedom of Information Act, this Article makes two points. First, our findings tend to confirm a “centralization” thesis. Our interview subjects — political appointees within the Obama White House and DHS — tended to confirm that DACA was intended at least in part to neutralize the influence wielded by frontline ICE officers, who tended to embrace an aggressive approach to enforcement. Second, this Article draws attention to an element of the DACA story that has thus far appeared intermittently or as an afterthought: the role of lawyers in the enforcement and administration of our nation’s immigration laws. Our data shows that political appointees embraced competing notions of government lawyering as they attempted to find relief for immigrants through regulatory channels. In trying to provide them with relief before DACA, the executive relied on a vision of lawyering commonly associated with the prosecution of criminal laws. This contrasts with the vision of lawyering at the heart of DACA. The period preceding and leading into DACA provides a useful opportunity to advance the discussion of the ethical basis for government lawyering, particularly in light of the successive attacks within the literature on the viability of an animating conception of the “public interest.

Movement Law

In this Article we make the case for “movement law,” an approach to legal scholarship grounded in solidarity, accountability, and engagement with grassroots organizing and left social movements. In contrast to law and social movements—a field of study that unpacks the relationship between lawyers, legal process, and social change—movement law is a methodology for scholars across substantive areas of expertise to draw on and work alongside social movements. We identify seeds for this method in the work of a growing number of scholars that are organically developing methods for movement law. We make the case that it is essential in this moment of crisis to cogenerate ideas alongside grassroots organizing that aims to transform our political, economic, social landscape.In articulating movement law as a methodology for undertaking and shifting the scholarly enterprise, we identify four methodological moves. First, movement law scholars pay close attention to modes of resistance by social movements and local organizing. Paying attention to resistance is in itself significant, for it meaningfully diversifies the voices and sources relevant to legal scholarship. Second, movement law scholars work to understand the strategies, tactics, and experiments of resistance and contestation. By studying the range of strategies, tactics, and experiments—including but not limited to traditional law reform campaigns—movement law scholars engage new pathways to and possibilities for justice. Third, movement law scholars shift their epistemes, away from courts and silos of legal expertise, and toward the stories, strategies, and histories of left social movements. Adopting the episteme of social movement horizons denaturalizes the status quo and allows more radical possibilities to emerge—beyond the status quo, and toward political, economic, social transformation. Fourth, movement law scholars embody an ethos of solidarity, collectivity, and accountability with left social movements, rather than a hierarchical or oppositional relationship. Writing in solidarity with social movements displaces the legal scholar as an individual expert and centers collective processes of ideation and struggles for social change