I was asked recently, “Well if litigation is the death of organizing, then what’s a radical lawyer to do?”
It is a great question and one worthwhile to explore since we just celebrated, May 1st – International Workers’ Day.
Law is conservative by nature. “Law” is a complex system designed to regulate and discipline on both a large scale, “population” level, and at an individual level. It defines and reinforces the power of certain groups of people, like the creation of individualized property “rights” for those that the legal system deems as “owners” of such property. The legal system also reinforces and codifies state power over both the population and the individuals. For instance, it defines the legal rights of those that are defined as “citizens” and those that are not and these designations and definitions change over time according to many factors, like labor needs, racism, and political power.
As attorneys, we must, at least at some level, operate within the regulatory system, in fact we become “officers of the court,” sworn to uphold this regulatory regime. Attorneys are supposed to believe in the law’s ability to define right and wrong, legal vs unlawful, distribute justice and retribution. The regulatory system we know as “law” is a human constructed landscape where boundaries are defined as “real” and therefore unchallengable rather than social constructs that reflect distribution of wealth, power, and control. I like to compare it to the Matrix, from the movie, – our regulatory system called “law” feels and looks real because we tacitly agree to its existence.
If the legal system is like the Matrix, attorneys are the maintenance workers within the Matrix. Most Liberal attorneys, the ones who want to “do good” are like benign architects of the Matrix. Liberal attorneys still “believe” in the law, they believe that some reform will can make law better, but they still believe that lawyers, courts, and judges have the right to construct the boundaries, define and distribute justice.
Radical lawyers then need to be able to operate within the Matrix but without reifying it or justifying it. Part of that is our own, individual way of operating within it. Do we accept our “special” titles as attorneys? Do act like our knowledge makes us superior to others? Do we minimize people’s actual EXPERIENCE of the “Law” vs. what we learn in books? Do we actually believe that we deliver justice? Do we police movements by telling them all the legal why’s of what they want to do won’t work? In other words are we urging people to only work/color between the lines of the Matrix?
Before becoming an attorney, I was a union organizer for 10 years. I realized that I actually knew a lot about the law because I worked within its confines and OUTSIDE of it. A good organizer pushes the boundaries of the law and the best lawyers are the ones who explain the boundaries and risks of jumping those lines and then LEAVES the room.
Back to May Day – The International Workers Day. May Day commemorates workers’ collective victory for the 8-hour work day in 1886. This was not a litigation strategy, this was decades before workers in the US had the “right” to join unions or strike under the National Labor Relation Act which was passed in 1935 (but workers didn’t actually the anything until many years later, more on that below). Back to 1886, during this time, the act of workers getting together to fight collectively was often considered a “civil conspiracy” under the law to interfere with the boss’ property rights. If workers had followed a legal strategy they would first had fought for recognition to the “right” to gather together as labor under the law. This would have been working within and by the rules of the Matrix and under the rule of law. Instead, they took the right to organize as labor against capital as their own rights, they didn’t need a lawyer, judge, court to tell them they had that right.
They didn’t need experts or studies to show/prove that 8 hours was the maximum amount that work should be in a day. They had their own experiences, their own analysis. They fought through withdrawing their labor from the equation – they struck. Not surprisingly, strikes are traditionally viewed with suspicion by the legal establishment. In one case, when fisherman decided to strike on the open sea, the court called it economic extortion and it was taught in my law school class as an example of contract made under duress and therefore invalid. Even today some strikes are still illegal, the Taylor Act in NY declares it illegal for the transit workers to strike, and when they did recently, their president was put in jail for calling the strike. It is now “legal” for the boss to hire replacement workers to break a strike. Under our broken labor law, unions can’t strike at the locus of power – the customers which is called a “secondary boycott”, workers in unions can’t have solidarity strikes, workers can’t refuse to cross picket lines. Labor law has become a way to capture, subdue, and break labor.
Judging the May Day strike for an 8 hour work day – we must call it a resounding success. If I was a movement lawyer in 1886, the best thing I could have done would be to leave the room during planning, since all their plans and dreams were outside the margins of the law. Imagine workers in the middle of the industrial revolution in a “conspiracy” to dream that their lives would be more than work, that 8 hours was all they should give to capital, that they had the right to withdraw their labor until their demands were met. Big, “impossible” dreams – dreams outside the Matrix of the law.
It is there, at the margins, that radical lawyers must operate and dream – one foot inside the Matrix and one foot outside, with organizers and the people leading the way to the outside.
Today at this May Day, let the people dream big and let us attorneys stop being the architects of the Matrix but rather the architects of the People’s dreams.