White, Lucie

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In the Interests of Justice: A Digression

Fordham University School of Law

Fordham Law Review Volume 70 Issue 5 Article 28 2002 In the Interests of Justice: A Digression Lucie White Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Lucie White, In the Interests of Justice: A Digression, 70 Fordham L. Rev. 1921 (2002). Available at: https://ir.lawnet.fordham.edu/flr/vol70/iss5/28 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. In the Interests of Justice: A Digression Cover Page Footnote Lewis A. Horvitz Professor of Law, Harvard Law School. B.A., 1971, Radcliffe College; J.D., 1981, Harvard Law School. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol70/iss5/28 IN THE INTERESTS OF JUSTICE: ADIGRESSIONLucie White*I. OPENING QUESTIONSWhat can be done to teach law students the skills they need towork, throughout their legal careers, in the interests of justice? Howcan the work we do as law teachers motivate law students to take thepossibility of justice seriously throughout their professional lives?How can our teaching help law students take the hope of justiceseriously, over the long haul, without eventually retreating intocynicism, denial, or despair?I. JOB CHANGESWhen I decided to go to law school, I was trying to teach low-income youth to read at a community college in a stressed urbanneighborhood. I had encountered three obstacles to my students'capacities for effective learning and good citizenship, and I thoughtthat the law could somehow help us overcome these obstacles. Mystudents' hope was stymied by the interlocking problems of economicinequality, social exclusion, and political powerlessness. This knot oftroubles seemed to sap their enthusiasm for learning or civicinvolvement. The notion that they were supposed to feel and act likeenfranchised citizens seemed, to these young people, like a messagefrom Mars.We all know that poor people have little or no money to paylawyers. Thus, when I graduated, I signed up for the obvious job forsomeone with my inclinations: working for Legal Aid. Legal Aidpaid rock-bottom salaries. My starting salary, in the fall of 1982, wasapproximately $12,000 a year. Even then, my law school classmateson Wall Street were making a lot more. In order to sit for my state'sbar exam, I had to swear to the Bar Examiners that I had not willfullydefaulted on my law school student loans. This was before the era oflow-income protection plans.Money, however, was not the only problem I encountered whileworking for Legal Aid in that era. The endless forms we had to fill* Lewis A. Horvitz Professor of Law, Harvard Law School. B.A. 1971, RadcliffeCollege; J.D. 1981, Harvard Law School.1921FORDHAM LAW REVIEWout to keep track of our clients posed an even greater challenge. Thepaperwork was worse than what my sister faced as a first gradeteacher in a Texas public school. And it was almost as bad as what thewelfare workers in my county dealt with.1 The forms and rules wereaimed at restraining us in two ways. First, they made us show themthat our clients actually were poor. And second, they made us swearwe were not getting too bold in our efforts to help them.There was also the problem of bad vibes on the shop floor. In justabout every Legal Aid office of that era, including my own, the whiteguys ran things and handled the important lawsuits. They called thesethe "impact" cases. The white women, like me, worked on the highvolume cases, such as evictions, divorces, and welfare terminations.They called our work the "service" cases. And the black womenhandled the high-stress, low-wage clerical and paralegal jobs. Thewhite women, who had put off having children in order to work longhours, would often whisper among ourselves that the black women inthe front office seemed to lack the passion that we brought to ourjobs, and we didn't know why.Finally, there was the law we had to work with; the intricate rulesthat made us treat our clients like Bingo cards, intruding into theirlives so we could fill up the boxes to get them some cash.Thus, five years out of law school, I decided to jump ship on LegalAid to teach law. My defection was the result of a cool cost-benefitcalculation: I figured that the subsidy I could get to work with poorpeople from inside a law school carried fewer strings than a Legal Aidwage. I also had the idealistic thought that at a law school, I couldfind some young folks to help me. And, after five years at Legal Aid,I knew that I needed their insight to keep me naYve enough to beeffective.Through all of this calculation, it hardly crossed my mind that myjob as a law professor would include the task of teaching these youngpeople "the law." It hardly crossed my mind that I might want toteach them something about using law to work against injustice. I justwas not thinking about my reasons for moving from Legal Aidpractice into law school teaching in those terms.III. SUBVERSIONSAs a novice law professor, I wanted to draw my students intoworking with low-income people against injustice. At the same time,however, I felt a gut-level aversion to the notion that this work hadanything to do with "exposing" these students to the "realities" ofpoverty. I guess I did not believe in the "reality" of poverty. Norcould I imagine why such "exposure," if it could be carried out, would1. Ronald Reagan put most of the paperwork in place. Talk about irony.1922 [Vol. 70A DIGRESSIONhelp students become more attuned to the art of working againstinjustice. I also rejected the notion that my job should involverecruiting students to "serve" the poor. I have always felt uneasyabout such missions. My grandmother's people, good Methodist folksfrom the hills of Carolina, had dispatched entire families from theirclose-knit congregations to the missions they had set up in the Congo.All I knew for sure, when I started teaching law, was that what Ithought I knew about law and social justice was exactly what I did notwant my students to believe.That is not quite true. I did want to draw students into workingwith low-income people in ways that felt creative, upbeat, and alive.And I wanted to get across the upside-down notion that being honestwith themselves about the difficulty of the work could be theirgreatest source of power. I wanted to teach these students the power,indeed, the necessity, of critique as the only reliable ground for moralaction.I have thought a lot over the years about why I am at the same timesuch a critic and an activist. When I was working at Legal Aid, I usedto read critical thinkers like Foucault and Derrida to relax. Butcontrary to the warnings of the centrist legal academics, whodenounced the first generation of critical legal studies as a pathtoward nihilism, asking the kinds of questions that pull the rug outfrom under one's own grounds for action has not tied me up in post-modernist paralysis. Especially when the work gets really hard, it isonly these nay-saying, groundbreaking kinds of questions that cankeep it going.I know that a big part of my romance with critique must come frommy nature. Call it temperament, or quality of mind, or aphysiologically-based style of perception and cognition. Perhaps, asFreud said, biology is destiny.2 Yet, I also think my taste for critiquecomes from the world I grew up in-Jim Crow Carolina. That was aworld in which the moral ground never turned out to be quite what itwas cracked up to be. Behind every "scene" there always seemed tobe black people-silent, angry, hurting-but in no position to talkhonestly about what they knew was going on. This was a confusingkind of moral education for a little white girl: a set-up for learning todistrust one's own perceptions and convictions, especially the onesthat seemed most undeniably true. I guess all we can do, in the end,as lawyers and teachers inclined towards the interests of justice, is toteach from what we know.2. See, eg., Steven L. Winter, Human Vahes in a Postiodern World, 6 Yale J.L& Human. 233,246 n.58 (1994).2002] 1923FORDHAM LAW REVIEWIV. FIELD-BASED COURSESOver the years, I have taught a lot of field-based law school courses.These are small classes, in which students work with real people in theplaces where economic inequality, social exclusion, and politicalpowerlessness come together. In one of these classes, which I called"Work Opportunity and Well-Being," a clinical psychologist and Itaught a group of law and medical students who were working withpeople who had felt pressured to apply for Supplemental SecurityIncome ("SSI") disability benefits. These people were unable to findwork they could do in the national economy. As our students tookthese people through the demeaning steps of the disabilitycertification process, they kept journals of what, following MikhailBakhtin, we called "arresting" moments. We explained these asmoments when you are struck by an experience that refuses either tofit itself into the world that you thought you knew, or to go away.V. ARRESTING MOMENTSA few moments from my teaching immediately come to mind as Iwrite this:a The scene is the University of North Carolina Law School's LegalAid clinic in 1984, at the height of the federal government's campaignto weed malingerers off of the federal disability rolls. A law student isrepresenting an elderly African American couple in a claim toreinstate their SSI disability after an abrupt termination. Both thehusband and wife suffer from severe mental illness. At the end oftheir hearing, the couple gives the student a small token of theirgratitude. It is a 45-rpm recording, produced by the couple through amail order service, on which they recite love poems that they havewritten to each other over their forty-year marriage.o The scene is Los Angeles in 1989, the hey-day of homelessness.Law students are working with Vietnam veterans on Venice Beach.In the early mornings, many of these veterans can be found foragingfor food in the garbage cans along the boardwalk. The students takefood stamp applications from the few hungry men who are willing tocomplete them. They probe the others to understand their reasons forrefusing the federal assistance to which they are clearly entitled. Oneof the reluctant veterans, interviewed while rummaging through anoverflowing garbage can, explains his choice of foraging over foodstamps in the following terms: "I have too much respect for my owndignity to set foot in the West L.A. welfare office."a The scene is Boston, in the winter of 1996-97. A group of lawstudents, most of them from "historically underrepresented" groups,work at a local food pantry with elderly immigrants who have beenterminated from SSI by the recent federal welfare reform law. Theelders welcome the students' efforts. But the food pantry staff,1924 [Vol. 70A DIGRESSIONsecond-generation immigrants with European surnames and associatedegrees in human services, seem to distrust the law students' presence,perhaps because the students go to a powerful university that does nothave a good reputation in this local world. The workers express theirfeelings of distrust and the students get the message. The studentsgraduate from law school with hurt feelings about serving the poor.o The scene is Accra, the capital of Ghana, in the year 2000. Thenation is still recovering from the decade of "structural adjustment,"in which a bloc of "donor" nations required poor nations to unravelwhat was left of their social service programs in order to get foreignloans. A group of U.S. law students, most of them white, have cometo Accra to work with students from the University of Ghana's lawfaculty on a health rights campaign in a high-poverty area of the city.The 1990s brought spiffy new freeways, shopping centers, and five-starhotels to central Accra. Yet the community of almost one millionpeople in which the students are working came out of the 1990s withfewer public services than it had before structural adjustment policieswere imposed. Thus, there is little garbage pick-up, sewage disposal,water treatment, or primary health care in this vast urban village.Instead, the people tend to use traditional remedies for cholera andtuberculosis and to defecate in plastic bags. The Ghanaian studentsdo not want to admit to ever having set foot inside this quarter, whichthey refer to as a "slum." They have trouble understanding why richAmerican students would come all the way to Ghana to spend time insuch a place unless the American students are spies, and they let theirfeelings be known. The American students get the message,reasoning that their Ghanaian counterparts cannot deal with povertyin their own country because of class bias. The American studentshave come to Ghana for the summer because it has become cool forjustice-minded U.S. law students to spend their summer vacations inexotic places like Ghana, working with "indigenous" communitygroups on human rights campaigns.a A few days have passed. The Ghanaian slumlord who is rentingspace to the indigenous human rights organization that is hosting theAmerican students informs his tenant that because white folks arehanging around the group's office, a new source of money must besomewhere in the picture and threatens to raise their rent.a The scene is Harvard University in the Spring of 2001. Studentstake over the Provost's Office to protest the university's refusal to paysome of its custodial workers what the students consider to be a livingwage. Other students host conversation sessions with small groups ofthe workers whose welfare the protesters seek to further. The leaderof the conversation project writes a paper that recounts repeatedmoments during the protest in which eloquent, monolingual students,impatient with the pace of simultaneous translation, eclipse theworkers' voices.2002] 1925FORDHAM LAW REVIEWa The scene is today and tomorrow. A group of single mothersmeet weekly with law students and teachers in a low-incomeneighborhood in Cambridge, Massachusetts, to stave off the demonsof despair. The students invite the women to meet with the law schoolseminar that wraps around the project. The women's words make itclear that they are every bit as astute and articulate as these futurelawyers. The students get the message. They are gracious andresponsive, as their values dictate, but they are thrown off by thewomen's eloquence. They are uncharacteristically flustered,awkward, and at a loss for words.VI. LESSONSWhen I started teaching law, I thought hard about how to teach thetheories and skills that lawyers need to work in the interest of justice.I imagined young law school graduates moving into the professionknowing how to use the law against the sort of inequality, exclusion,and powerlessness that the law itself has helped to design. Thus, Itried to create the appropriate pedagogical settings for this kind ofteaching project. I tried to erect the appropriate pedagogical"scaffolding" to support this kind of learning. I sought assessmenttools that could ascertain whether good learning was taking place.More recently, I have begun to ask different kinds of questions:Why do some moments from my teaching seem to arrest me, stickingso stubbornly in my mind? Does time really go around in circles, inspite of the path of the law? And what about the interests of justice?What have those interests been up to over the last several decades?Why does the knot of inequality, exclusion, and powerlessness seemso bound up with the question of justice and so resistant to it? Whydo I distrust questions that seem to presume their own answers?Last spring, on the last day of one of my field-based courses, thestudents asked me to say a few words about why I was teaching theclass and what I had hoped the students might learn from it. I talkedabout a seminar that I had taken, while in graduate school, with theFrench literary critic Roland Barthes.In the first class of that seminar, Professor Barthes asked us to givehim words that we had fallen in love with. We vied with each other tobring our favorite words to his attention as he wrote, furiously, on theblackboard. Suddenly, he paused and began to circle the words fromthe list that intrigued him. Those words became our syllabus for theten-week course. We spent the first three classes on caft, which, welearned, was at once a beverage, a system for gender-ordering publicspace, and a site of resistance to colonial hegemony. We then turnedto a word that he had chosen: addas. He told us that addas comesfrom the Arabic language and means any word that means both itselfand its opposite, at the same time.1926 [Vol. 702002] A DIGRESSION 1927By the end of that seminar, I knew I had learned somethingimportant about undoing the knot of inequality, exclusion, andpowerlessness in the interests of justice.We started the Accra health rights project with a week-longseminar, in Ghana, for U.S. and Ghanaian law students. The studentsworked together to design and facilitate the seminar, which probedsome of the intersections of economic policy, social and economicrights, and democratic participation. One of the ground rules thatthey set for themselves was that whenever someone spoke, she had toaddress the previous speaker by name-a fairly simple rule. At theend of the week, one of the students, from Ghana, said that he hadnever before been in a classroom in which he felt that his voice wastaken seriously.By the end of that seminar, I knew I had learned somethingimportant about undoing the knot of inequality, exclusion, andpowerlessness in the interests of justice.Notes & Observations

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