Kendall, Walter J., III

English

The John Marshall Law School

Foreword - Alinsky Conference, 42 J. Marshall L. Rev. xxv (2009)

UIC Law Open Access Repository

UIC Law Review Volume 42 Issue 3 Article 2 Spring 2009 Foreword - Alinsky Conference, 42 J. Marshall L. Rev. xxv (2009) Walter J. Kendall III Follow this and additional works at: https://repository.law.uic.edu/lawreview  Part of the Legal Education Commons, Legal History Commons, Legal Profession Commons, Legal Writing and Research Commons, and the Organizations Law Commons Recommended Citation Walter J. Kendall III, Foreword - Alinsky Conference, 42 J. Marshall L. Rev. xxv (2009) https://repository.law.uic.edu/lawreview/vol42/iss3/2 This Symposium is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact repository@jmls.edu. FOREWORD - ALINSKY CONFERENCEWALTER J. KENDALL III*Thurgood Marshall criticized his colleagues on the Court forbasing interpretations of the law "upon unfounded assumptionsabout how people live."1  He was also troubled that theirinterpretation of the facts manifested a "callous indifference to therealities of life."2 Saul Alinsky, whose life's work models a methodfor political economic change that has come to be known as"organizing," shared Justice Marshall's insistence that the worldbe seen as it is. Together, they have alerted lawyers andorganizers of the need to be realists and to see the world as "anarena of power politics moved primarily by perceived immediateself-interests [where] laws are written for the lofty aim of the'common good' and then acted out in life on the basis of thecommon greed ... where [people] speak of moral principles but acton power principles .... -3One of the realities of life and the place of power in it,recognized by both Marshall and Alinsky, is captured in a quotefrom Frederick Douglass:If there is no struggle there is no progress. Those whoprofess to favor freedom and yet depreciate agitation...want crops without plowing up the ground, they wantrain without thunder and lightning. They want theocean without the awful roar of its many waters. Thisstruggle may be a moral one; or it may be a physical one;or it may be both moral and physical; but it must be astruggle. Power concedes nothing without demand. Itnever did and it never will."4Most recognize that the world as it is must be made better ifthere is to be human flourishing, freedom if you prefer. In otherwords, there must be changes in the relationships of power. In a* Professor, The John Marshall Law School.1. United States v. Kras, 409 U.S. 434, 460 (1973).2. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 471 (1988).3. SAUL D. ALINSKY, RULES FOR RADICALS 12-13 (Vintage 1971) (1989).4. Sheryll D. Cashin, The Civil Rights Act of 1964 and the CoalitionPolitics, 49 ST. LOUIS U. L.J. 1029, 1042 n.67 (2005).xxvThe John Marshall Law Reviewdemocratic society, relationships of power are created, sustained,and changed by organizing and by the law. Thus, the April 24,2009, Conference "Organizing Law in the Obama Era:Commemorating the 100th Anniversary of Saul Alinsky's Birth"and this symposium were created.Sandy Horwitt, Alinsky's biographer, 5 and Bruce Orenstein,producer of a video on Alinsky's life, introduced Alinsky as anorganizer, both verbally and visually, to the conference attendees.The conference consisted of panels organized around four themes:what it is that lawyers can do to help people's organizations andthe resulting tension; the relevance of Alinsky's thought and workto legal education; the limits of using litigation as a method ofsocial change; and, finally, the challenges and opportunities forAlinsky-inspired organizing in the Obama era. The conferencewas organized into four panels with a formal paper on a specifictheme followed by written, or less formal, commentary from anorganizing, lawyering, and academic perspective.The featured panelists were Dr. Corey Shdaimah, ProfessorScott Cummings, Professor Michael Seng, Mr. Michael Kruglik,Professor Barbara Bezdek, Professor Steven Schwinn, Mr. GabeGonzalez, Dr. Peter Dreier, Ms. Jackie Kendall, Mr. Barry Taylor,Mr. Gerald Taylor, Professor Gerald Rosenberg, Professor LauraBeth Nielsen, Mr. William McNary, Mr. Robert T. Gannett Jr.,and Mr. Howard A. Learner. The symposium also featured twopresentations: one by Mr. Sanford Horwitt and another by Mr.Bruce Orenstein.Lawyers and OrganizersCorey Shdaimah is a widely published scholar on socialmovements and the role of lawyers and researchers in thesemovements. 6 Her article began as a review of empirical research,but it was transformed when she became involved in a local schoolboundary dispute in her hometown. She opens with a quote fromPaulo Freire, imposing on academics the same commitment torealism that Justice Marshall and Alinsky demanded.7Despite this shared commitment, Alinsky had little patiencefor and was suspicious of both academics and lawyers. Shdaimahsummarizes the literature on organizers' views of working withlawyers.8 In brief, organizers found that lawyers seize control,diminish citizen participation, inhibit alternative tactics, and5. SANFORD D. HORWITT, LET THEM CALL ME REBEL (Knopf DoubledayPublishing Group 1992).6. Corey S. Shdaimah, Lawyers and the Power of Community: The Story ofSouth Ardmore, 42 J. MARSHALL L. REV. 595 (2009).7. Id.8. Id. at 598-607.[42:xxvcreate false hopes.Shdaimah focuses on reflecting back on her experience as an"indigenous organizer" (I suspect Alinsky would use the term'leader") and determines how these negatives can be moderatedand even reconceptualized, thereby turning the relationship into amore positive one. Scott Cummings, in his commentary onShdaimah's reflections, addresses two concerns about workingwith lawyers, especially when using litigation. 9 One concern is afear that the people-empowering purpose behind organizing is lostwhen turning power over to an unaccountable professional. Theother is an almost intuitive understanding of Gerald Rosenberg'spoint about the ineffectiveness of litigation; as Cummings puts it,"a legal campaign may change law on the books, but not practiceon the ground."10 Cummings presents a catalogue of twenty-eightfactors that underlie the lawyer-organizer relationship. Afterconsidering these factors, there can be little doubt as to two things.First, there can be no general rules, as the organizer-lawyer-organization relationship is situation specific. Second, legaleducation, as currently configured, inadequately prepares lawstudents to represent what Alinsky called people's organizations.Legal Education and OrganizingIn her article, Barbara Bezdek envisions the challenges facinglaw schools trying to develop curricula and pedagogies from anAlinsky perspective.' 1 Specifically, Bezdek highlights Alinsky'sdistinction between a people's organization and a communityorganization.12 Alinsky was concerned that a communityorganization was too locally focused on too narrow a range ofissues to effect systemic change.In contrast, people's organizations operate across a broaderrange in order to achieve systemic change. Organizational actionsare "heated, defiant, righteous, and (most importantly) intended tobe empowering to those who engaged in" them.' 3 It is this "ironrule" that distances organizers and lawyers. This distancing isreinforced by the inherent conservatism of the law itself and theabstracting, almost dehumanizing, nature of legal reasoning.Bezdek sees Alinsky, if he had been a law student, as the onewho would have perhaps sparked the transformative journey thelegal academy has had since the late 1970s.14 The Critical Legal9. Scott L. Cummings, A Pragmatic Approach to Law and Organizing: AComment on the "Story of South Ardmore," 42 J. MARSHALL L. REV. 631 (2009).10. Id. at 633.11. Barbara L. Bezdek, Alinsky's Prescription: Democracy Alongside Law,42 J. MARSHALL L. REV. 723 (2009).12. Id. at 727.13. Id. at 734.14. Id. at 730.2009] Foreword xxviiThe John Marshall Law ReviewStudies scholars sought to crash through the ossified Langdellianstructures; later activists in the legal academy like Gerald Lopezmore positively articulated a range of lawyering skills beyond thealmost exclusive focus on litigation skills that still dominates mostlaw schools.Bezdek further argues that governance has fundamentallychanged. 15 Centralized command and control approaches havebeen replaced by more flexible, local approaches. This, in turn,has led activists and their lawyer allies to emphasize collaborationand power sharing, a more "experimentalist approach." 16 She alsodiscusses the new structures and characteristics of poverty andthe poor, including the significance of identity issues.17Frankly, this notion of power sharing is the antithesis of theunderstanding of power relationships implicit in the quote fromFrederick Douglass at the beginning of this essay review. Unlessthose challenging the powerful have power themselves, nothingwill change. This is not to deny the necessity for compromise in adiverse society. But, as Alinsky asserted, compromise is possibleonly between the powerful.One can applaud the insights for reforming legal educationprovided by the collaborative post-Katrina work between theMississippi Center for Justice and Bezdek's colleagues andstudents at the University of Maryland Law School. Her briefdescriptions of "community lawyering" and the post-Katrinaexperiences of the lawyers and law students suggest that the basiclaw school goal of training students to think like a lawyer needs tobe supplemented in two fundamental ways. First, students needto receive some real hands-on clinical experience with clients whoare more or less marginalized. This is essential because most ofthe rules and procedures of the law assume a participating,consenting, and resourced individual sharing certain social values.This assumption obviously is not valid for many, perhaps anincreasing number of people and communities today. Second,there is too little attention in the current curriculum to the actualpower relationships operative in today's society. Public power ispresented as almost exclusively negative. Further, there is littlerecognition of the existence of private economic power, whatRobert Hale referred to as coercion. sThis summary would be incomplete without an enthusiasticrecommendation to read the endnotes to Bezdek's article. 19 Theyare an invitation into the experience and deep reflections of15. Id. at 735-37.16. Id. at 735.17. Id. at 747.18. Robert L. Hale, Coercion and Distribution in a Supposedly Non-CoerciveState, 38 POL. SCI. Q. 470, 470-78 (1923).19. See Bezdek, supra note 11.xxviii [42:xxvseveral generations of law professor-activists on how to trainlawyers so they can effectively work with and for persons andorganizations, seeking justice in our changing unstable world.Limits of LitigationEarlier I mentioned Gerald Rosenberg's critique of litigationas an ineffective method of sustainable social change. 20 In hispresentation and paper, he embraces Saul Alinsky and applies aRosenberg-Alinsky approach to the campaign to win the right tosame-sex marriage. He concludes that by failing to listen toAlinsky, the movement used "the wrong tactic at the wrongtime."2 1 In his view, the litigation strategy has resulted in anenormous backlash and little or no increase in public support forsame-sex marriage. Additionally, he asserts that there was analternative-less damaging approaches that comply with Alinsky'srules for successful social change.In contrast, Laura Beth Nielsen in her commentarychallenges Rosenberg in three fundamental ways. First, sheargues that Rosenberg exaggerates the dependency of themovement on litigation.22 She briefly describes the history of thegay rights movement pointing to a wide range of tactics used otherthan litigation.23 Importantly, she points out that like all socialmovements, there are myriads of large and small goals beingsought and supported by folks favoring different tactics.24 Second,Nielson challenges Rosenberg's cramped view of the effectivenessof litigation. 25 Indeed, litigation is a claim of right. For people onthe outside, the claim of right is to assert a presence and todemand a response from the powerful. Often, litigation assists inthe survival of social change organizations.Organizing in the Obama EraFinally, Peter Dreier offers some reflections on organizing inthe Obama era.26 Few doubt that the election of Barack Obama asPresident could be a transformative moment in American politicaland social history. But can the calls for change that resonated sopowerfully with the electorate be transformed into policy andprogram? Certainly, the entire conference and all of its papers20. See supra pp. 102-03.21. Gerald N. Rosenberg, Saul Alinsky and the Litigation Campaign to Winthe Right to Same-Sex Marriage, 42 J. MARSHALL L. REV. 643, 653 (2009).22. Laura Beth Nielsen, Social Movements, Social Process: A Response toGerald Rosenberg, 42 J. MARSHALL L. REV. 671, 672 (2009).23. Id. at 673-76.24. Id. at 675-76.25. Id. at 679-80.26. Peter Dreier, Organizing in the Obama Era: A Progressive Movement ora New Progressive Era?, 42 J. MARSHALL L. REV. 685 (2009).20091 Foreword xxixThe John Marshall Law Reviewmake it clear that organizers will be essential if change is to occur.Dreier alludes to the history of social change movements inAmerica. He emphasizes that successful movements have alwaysrequired both outside and inside strategies "to gain any significantreforms, activists and politicians need each other."27Dreier also offers a detailed critique of the current strengthsand weaknesses of organizing as well as the various schools ornetworks. He describes them as a "fragmented mosaic."28 He seesthe concept of organizing as still in recovery from the 1980s, withits attacks on government at all levels and its support for privateeconomic power.In Dreier's view, the labor union movement was andcontinues to be the key social force for "progressive" change. 29 Hesees it at the center of organizing and its empowerment as aprecondition for the successful seizing of the Obama movement.One Last QuestionFinally, this article raises a question not addressed in theconference or symposium. Specifically, is organizing a neutralmethod of social change independent of the changes sought? Or isit inherently "progressive" as that term is used today in politicaldiscussion and debate? Certainly, as Dreier points out,conservatives have used grassroots organizing to mobilize peopleand to support their agenda. He seems to assume that organizingas such is a neutral method that can be used to advance anyagenda. I wonder.Certainly, Alinsky was clear that organizing was aboutempowering people who otherwise did not have power. It wasabout changing relationships of power. Further, organizations'goals, priorities, and actions were to be determined by the peoplein them. From that perspective, organizing as a method forachieving change is inherently reformist. The powerful can reachout to mobilize people at the grassroots, but such activity is notorganizing in the Alinsky sense of changing relationships of power.27. Id. at 690.28. Id. at 713.29. Id. at 707.[42:xxvxxx

https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1114&context=lawreview

Foreword - Alinsky Conference, 42 J. Marshall L. Rev. xxv (2009)

Abstract

Similar works

Full text

Available Versions

The John Marshall Law School

UIC Law Open Access Repository