Rules for Radical Lawyers
A practical primer for reclaiming our tools and dismantling the master’s house
A practical primer for reclaiming our tools and dismantling the master’s house
… survival is not an academic skill. It is learning how to stand alone, unpopular and sometimes reviled, and how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish…For the master's tools will never dismantle the master's house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.
— Audre Lorde
Law is, of course, the master’s tool par excellence, and for those of us who are lawyers, the hallowed halls of the master’s house are our preferred playing fields. Here we wield our coveted tools and training; here we analyze, we parse, we debate; here we maintain professional distance, suppress emotion in favor of intellect; here we argue any and every side. We rely on existing past precedent rather than reimagining the future, as we ask for incremental changes.
This isn’t what I thought I was signing up for when I went to law school. I became a lawyer because I believed in the ideals of truth, justice and the rule of law. I’d seen the movies, was inspired by the moral force of lady justice with her blindfold and balanced scales. It’s a lovely theory, but in practice our legal education prepares for a career in law, thus transforming us from dreamers to realists; from those who would use our privilege to change the system to those who become part of it.
We enter law school with big visions of fighting for the little guy and saving the world. But we leave as technocrats, with the ability to analyze and parse every detail, to assess and challenge every layer of procedure, and to argue any and every substantive nuance. Regardless of who or where we were before we got there, the law is an elite field, and we feel and absorb this status. Surrounded by this sense of privilege and power in the most ivory of towers, we are taught to think and behave like lawyers, and to cultivate the skills that will make us excel professionally. We become part of the fraternity preserving the very status quo we went in to change.
We enter law school advocates and humans. We leave as technocrats and lawyers. As a human and an advocate, you read a story and think automatically about the people, your values, what your relationship is to them, and what is right and wrong. As a lawyer, that story becomes a fact pattern, and you use your training to spot the issues, analyze the facts, place them in the context given, and assess their value to the side you are to represent.
Then you must win for whatever that side may be. As a lawyer, this focus on winning means you listen to argue instead of to understand; you analyze instead of empathize; you see things as win or lose. Big ideals like truth and justice are replaced with techniques, strategies – and, of course, paying back your student loans because learning how to use the masters’ tools does not come without a price tag.
How to square such an education with the realities facing our world? The urgency of every issue, case, and human struggle detailed in this book make it clear that, as Audre Lorde puts it, survival is not an academic pursuit. From villagers in Burma who worked and died as slaves for a US oil company, to sex workers and members of the LGBTQ community murdered in Kenya, to Black people in Ferguson and New York stopped and frisked and killed by the police, each knows that life, and death, can turn on who make the rules and who enforces them. And each chapter of this book makes equally clear how the elites who benefit from business-as-usual have used the tools at their disposal – in government, academia, media, finance, religion, the military– to resist change and preserve their power.
Law is the language of this power, and it is for this reason that it is one of the master’s preferred tools (or, one of the master’s go-tos). But if law is the language of power, can it be spoken in such a way that it strips away power from those who abuse it and unleashes it in those who have been abused? Can it shift or redistribute or reallocate power in society? This is the fundamental question this book has set out to answer: not just whether it is possible, but how it can be done. One answer is clear: it cannot be done in isolation. The power of law requires the power of people, and vice-versa, and when they are deliberately working in tandem, there is a quantum leap in possibility.
Power is at the center of every movement story and legal case. Whether advocating for racial justice, sexual and gender equality, human rights, indigenous self-determination, environmental protection, or corporate accountability— this book’s contributors, and the people they work with, are exercising and demanding power. And the privileged and elite few they challenge have sought to protect and entrench their power by marginalizing those without it – to preserve their own houses while keeping the others out, ultimately dooming the planetary house we all live on.
For the first 25 years of my professional life I have worked primarily as a “movement lawyer”, trying to bring about shifts in power by connecting the power of law to the power of people. Recently, I’ve shifted focus, myself, helping set up a new organization designed to fast-track climate solutions by supporting movements and frontline defenders fighting the expansion of fossil fuels. I still believe, passionately, in “the power of law”, but – like several contributors to this book – I too have become frustrated with the glacial pace of legal advocacy, when faced with the urgent existential threat facing us all. Nowhere is Audre Lorde’s truth about survival more relevant than around the climate crisis: if the arc of history is long but it swings towards justice, how do we grapple with the truth we just don’t have time for that arc to swing?
For decades, the “problem” of climate change was relegated to the world of scientists and lawyers, speaking through graphs and spreadsheets in the language of metric tonnes and parts per million, or the arcane language of international agreements. We have had more than enough data and facts from academia to know what we need to do to protect us, more than enough protocols and agreements to regulate our behavior, and yet it's not enough. Increasingly, those of us who seek radical and meaningful change understand that movements are the answer, with the sweeping, rapid change they demand and then have the potential to deliver.
Transformational change is not an academic pursuit driven by the sharpest analyst, or the best debater, in the room. The changes we need, to save ourselves from the crash course we are on must be be led by those fighting to protect what they love and honor, and to reclaim and redress what they’ve lost. The youth climate movement made that perfectly clear, after doing more to focus global attention and action on the climate crisis than the scientific and legal “experts” did in 30 years. From the climate movement and the Movement for Black Lives, from the stands of indigenous people against corporations across four continents, from protestors on the streets of Warsaw fighting for the rights to abortion and those on the streets of Beirut fighting for political accountability, from the successes of the South African AIDS movement and the potential of a global movement against female genital cutting, the message of this book is clear. The revolution we need to ensure our own survival – or at the very least the rights and freedoms we deserve – will most definitely not be litigated alone.
What does that leave those of us who are trained in the law, and who still believe in its transformational power?
Those of us who are trying to think differently about our roles in the world – and the movements we are part of – need to unlearn the behaviors, skills, and practices so coveted by, and drilled into, lawyers. We must relearn how to be human and advocates first, and lawyers and technocrats second. Whether we call ourselves “movement lawyers”, “public interest lawyers”, “radical lawyers”, “cause lawyers”, or even “judicial activists” we must see ourselves differently. If we are going to help make the radical change our world needs, we must learn to use our training in a very different way. And a first step, according to Audre Lorde, would be to find ourselves in common cause with those “outside the structures” we inhabit – rather than simply opening doors or sharing access, temporarily, with “those others, be they clients, movements, or both.
Rules for Radical Lawyers is a starting point for this unlearning and relearning process. It’s a way to be proud of what you do as well as good at it.
As a high school student awakening to my activism during the anti-apartheid movement of the 1980s, I wanted not only to know what to do, but also how to do it, and why. I read all the “how to” books, devouring every “manifesto” I could find. Looking back on it, I see my pre-lawyer tendencies, wanting to understand the theory and practice of social change, and needing to develop a level of expertise that lawyers spend careers honing in other subjects. Back then, Saul Alinsky’s Rules for Radicals: A Practical Primer for Realistic Radicals” was the progressive activists’ lodestar, and for many it still is.
I responded then, and still do, to the word “radical”. Its literal meaning is “root”, rather than what many today think of as “extreme”, and I’ve always understood a “radical” agenda as one that either addresses root causes, brings us back to our roots, or both. I also love its implication of change that is sweeping and transformational rather than incremental or ordinary – and of course its slang meaning: “cool!”. But especially for a budding pre-lawyer like myself, I now realize that what also attracted me was the whole alliterative package of Saul Alinsky’s book title: the pairing of “radical” with “rules” and “realism”. Rules are a lawyer’s home turf, and realism – a strategic assessment of what is possible – is the very best of our training.
When I got to law school, seeking to be a realistic yet radical vehicle for truth and social justice and the rule of law, I encountered lofty legal theory, judicial opinions, and one hypothetical fact pattern after another presented by brilliant law professors. But where was my practical primer about how to make real change for real people? Certainly not in the legal textbooks filled with Supreme Court decisions. I yearned for something based on lived experience, and reflective not only of laws and precedents, but of their contexts and impacts. This was why I set out to make this book: to add to the library of any law student or lawyer – in fact, any person at all interested in how to use the law as part of their activism – something that was so painfully missing, from mine, when I set out.
About half of the contributors to this book are not lawyers at all, but reflect on their experience, as activists and movement-builders, of using the law to bring about change. They repeatedly remind us that movements are messy and that there is no formula for social change. The other half of us are lawyers – graduates of law schools in the US and the United Kingdom, in France and Russia and Mexico and China and Kenya. None of us are “typical” but all of us nonetheless search for patterns and predictability amidst the chaos of life. It’s in our nature, and it’s in our training. Think of the phrase “Law and Order”: the latter is presumed to follow the former. And because of our training, we understand that if we are going to help co-opt the masters tools on the march for the many towards genuine change, we may need something to satisfy that craving for rules, and ways to organize our thoughts.
And so here are my “Rules for Radical Lawyers”: a starting point for relearning the qualities that movement lawyers must possess and cultivate, as well as the skills that they must prioritize, develop and practice—in law school, on the job, in life.
Lawyer means advocate, and every movement leader, activist, protestor, and “radical” is an advocate for a cause. The myth of neutrality is one of the first to reject if you’re seeking genuine change by dismantling the house and building back a better one. You’re not neutral: you came to your life’s work because it’s personal to you, so take it personally! In spite of this, one of the first skills you learn in law school is to be able to argue any side of a case and your legal education trains you to do that. The emphasis on intellect over emotion and professional distance over empathy, while critical to remember and practice when appropriate, is often a mismatch to the movement lawyer.
Movements are born of pain and rage, and sustained by the powerful urge to protect and fight for what we love. Lawyers disregard this force at their peril, and must cultivate empathy and connection by grounding their practice in their own lived experience of trauma, injustice, and love. This does not mean that you make your legal work about yourself (even though, as with many contributors to this book, you may well be part of the community you seek to help and represent). On the contrary, empathy requires that you take a step back, and think deeply about what “those others” have experienced as if it had happened to you. Failing to do so can miss the point entirely—as when my co-counsel and I celebrated our first major victory in Doe v. Unocal: we rejoiced in making legal history, until we were reminded that our victory made no immediate tangible difference for our clients from Burma, who were still living in poverty, in exile, and in even more danger than before because of the heightened attention—and targets on their backs—that this legal victory came with. Planning for these tensions, and leveraging the combined power of personal connection and empathy, while also applying our traditional legal skills, can bring about the holy grail for which we movement lawyers search: getting justice for our clients, rather than simply winning the case.
Martin Luther King did not say “I have a hypo to think through”. Nor did he say “I have a minor problem that needs some tinkering.” He proclaimed: “I have a dream”.
Lawyers and law students start with fact patterns, legal issues, and technical questions, then spend hours, even lifetimes, debating their implications on fictional scenarios (“hypos”). They rely on past precedents from existing case law to develop legal strategies that influence the outcomes of the situations that they’re presented with. More often than not, their job is to convince a judge, jury or other decision-maker that they are not really asking for change, but instead that the outcome they seek rests on the rational order of past precedent.
Movements are similarly grounded in facts, but focus on actual injustices of the here and now, to urge and advocate for the necessity of a radically changed future. While lawyers come up with legal theory and apply the facts of their particular case to convince a judge or jury to side with their client, movements aim to mobilize the masses around a particular incident or injustice, and then build and sustain momentum by connecting that initial outrage to an inspiring vision of societal change. A lawyer’s case ends with a verdict—for or against a particular perpetrator who has harmed a particular person. We may have achieved a legal victory in forcing Unocal to pay reparations for the human rights abuses our clients alleged happened on their pipeline; but the work of the movement for corporate accountability, human rights, and indeed democracy in Burma was certainly not finished.
All the movements described in this book have demanded fundamental, transformational change—and articulated a vision for a world that addressed the root causes of the injustices they were fighting against. Movement lawyers understood and decried not only the injustices against Michael Brown in Ferguson and Jane Doe 1 in Burma, but also the police impunity, white supremacy, and unregulated corporate power that allowed for, and even encouraged, those abuses in the first place.
Martin Luther King did not say “I have a hypo to think through”. Nor did he say “I have a minor problem that needs some tinkering.” He proclaimed: “I have a dream”.
While it’s a critical first step, it’s not enough to just “want” to make the world a better place, or to to believe in the vision of “truth, justice, rule of law”. Putting that vision, and the legal theories that underpin it, into practice requires you to be able to map the connections between your work and the specific, fundamental—radical—change you seek to create. Theory without practice and vision without specific goals and strategies is operating in the world of fantasy and waste. Aside from or along with litigation, your legal strategy may include legislative advocacy, developing public policy, media activities to influence the “court of public opinion”, or even constitutional reform.
Law school provides ample training and exposure to various legal strategies, but often fails to connect a “winning strategy” to a broader vision, or to ask the fundamental question of whether the strategy achieves any desired outcomes besides the winning. How many law students actually know whether Brown ever enjoyed the benefits of school desegregation, or whether Miranda ever benefited, himself, from the limits the case in his named case eventually put on police questioning? Radical lawyers must not only focus on a winning legal strategy, like a jury verdict or a judicial opinion that sets precedent, but must also be intentional about how and whether those strategies fully serve the broader outcomes, and societal changes, sought by their clients or the movements they connect to.
Power-mapping is a cornerstone movement strategy, and one that lawyers either skip or are unaware of. Ask yourself not only who has the power (that should be obvious), but how they have it, and how this power can be shifted and reallocated, using the law and other levers. If you define yourself as a lawyer seeking social justice, racial justice, gender justice, environmental justice—any kind of justice – your role must be that of a legal Robin Hood, disrupting the power and privilege of institutions and individuals that use such power to abuse and exploit.
The lawyers in this book also teach us that our role is not just to hold power to account. We must also focus our work to help our clients realize the power that they already have; to provide access to new tools, including legal ones, and help our clients wield them powerfully; and to create opportunities for clients and movements to unleash that power on the systems and structures that seek to suppress it. This is not the work of building power, but rather acknowledging that the power is already there, and unleashing it in the most impactful way the law allows for. This could be by creating opportunities for people who have been silenced to raise their voices and tell their stories; or providing a forum for those who have been harmed to seek relief for themselves and create change for others; or buying time for movements to organize themselves and mobilize additional support; or using their access and training to reform unjust laws and legal systems justice for a movement lawyer is fundamentally about disrupting and shifting power. I saw this in Unocal when I watched Jane Doe I confronting the American oil corporation’s lawyers in her deposition, knocking them off their game and leaving them speechless; or when John Doe V proudly showing us the school and community center he built with the money he received in the settlement in that case. They were no longer passive victims, but active survivors who took charge and had a say, literally, over their own lives, their families, and their communities.
Just as I urged alignment with your clients around vision and strategy, you need to be able to connect the dots between your legal work and the ultimate goals and vision of the movement. In theory, you are already doing this because you are client-driven, and your professional responsibility to put your client’s needs first can serve as a powerful reminder here. This can become a complicated issue in the movement lawyering context, when, as in the my experience with Doe v. Unocal, the client interests may sometimes evolve to contradict or even undermine the interests of the movement. The lawyer is, of course bound to the rules of professional responsibility and ethics codes in each respective jurisdiction. Nevertheless, they must make every effort up front to work with clients and movements alike to ensure the greatest synergy and alignment possible. Ultimately, you must serve your client, while understanding the goals of the movement, and staying accountable and being transparent with it as well.
This takes time that lawyers trained to value their time in 10-minute increments might not offer, and humility that the “argue to the death” mentality is trained out of us in law school. Lawyers trained in listening to argue by pulling out and parsing pieces of what we hear to determine whether it supports our case, weakens our opponents, or both. But listening to understand is a different kind of listening, and one that the contributors in this book did over visits to clients’ homes, canoe trips to their villages, sharing family stories and breaking bread, returning time and again rather than swooping in and disappearing.
It’s a step that lawyers often skip as they develop a legal strategy to win their case, and seek out clients and witnesses whose “facts” align with a strategy for legal victory. But this emphasis on addressing past harms, rather than working towards a vision of a better future, limits our impact as a movement lawyer. Your client intake must, include specific and targeted questions to ensure you have the right combination of facts and law to mount a successful legal strategy. But it should also happen over multiple conversations, in their community and environment, and include open ended questions like “what does winning mean to you? What does success look like for you, your family, your community? What change are you seeking and what will be different for you after this case” The legal system might not be right system to deliver these goals, but the lawyer can still share them, and support or help facilitate their achievement. Shared values with clients and movements, and the long term change strategies that can serve everyone, come through personal relationship cultivated and tended over time.
Over the years, I have asked clients and potential clients why they want to bring a case, and what they hope to achieve. The answers are as diverse as the people and places they come from. But there is one thing they all say: I want to tell my story. The vast majority of clients and communities that movement lawyers serve are marginalized, pushed aside, and ignored, and having their day in court is already a profound shift that the legal system offers. It bestows dignity on storyteller, who is fully in control over the narrative that she chooses to share and highlight; it requires the defendant—or at least their attorneys—to listen; and it bestows a level of gravitas and importance the harms that they suffered. Storytelling is at the core of every culture and tradition, and the legal tradition is no exception. Stories are the lifeblood of every legal case and movement, and certainly provide critical content for the media whose bread and butter is stories. For our clients, telling their stories validates their claims, their experience, and their suffering even if the ultimate outcome of their case doesn’t. Their proverbial tree does fall in the forest when somebody listens. Whether this happens in a trial, in a deposition, during client intake, or even a settlement negotiation, it doesn’t matter—either way. Storytelling is a form of justice.
Attention to detail is one of our strengths, and a skill that we spend years perfecting. Ironically, for a profession that, perhaps more than any other, rises and falls on our ability to manipulate these details with the right language and rhetoric to “win the case” makes us sometimes lose sight of what our work—and our words – really mean. We are so good at parsing when reading and writing in briefs, and we’ll spend hours on a single word or semicolon, interpreting and arguing and debating its meaning to opposing counsel and judges. But where is this attention to detail when thinking about our clients?
Is a remedy really a remedy? For example, can money damages ever “compensate” someone for their dead family members, or the the loss of dignity and security that rape or other human rights survivors endure? And what are “damages” really? For a lawyer, it’s the money we demand for our clients—but for our clients, it’s actual damage—to their health, their family, their home, their culture. Damages are the lived experience—often unspeakably terrible—of our clients. Lawyers’ “evidence” is our clients’ lived experience too, and a “great case” to make systemic precedent-setting change is the absolute worst for our clients who never wanted to be the center of a precedent-setting case. Likewise, gathering client and witness testimony is another way of asking people to recount and relive their trauma. Storytelling can, indeed, be a form of justice, but it’s a double-edged sword, for the legal system’s emphasis on witness and client testimony requires people to be retraumatized by telling their story over and over again.
Audre Lorde’s words can be discouraging to a proud radical lawyer such as myself, seeking to overthrow an exploitative “master” that values corporate rights over human rights, that destroys people and dooms the planet to a wasteland. But as I have been working on this project, engaging with the people who contributed to this book and their ideas, and reading my own damned rules, I remind myself to stop isolating issues, and to consider Lorde’s words in their context and totality. So I return to the less often quoted part of her statement: “Make common cause with those others identified as outside the structures”. This is a far cry from the professional distance we’re trained to maintain, as we put own views, opinions and causes aside in order to effectively serve (but not ally with) our clients. And rather than rely on existing law and precedent to advance our client’s case, Lorde urges us” to define and seek a world in which we can all flourish”
Here is how I read Lorde and apply her to my own life and work: Once we (1) use our master’s tools to “define and seek” a new world (rather than tweak what we have, relying on existing precedent) and (2) envision this world to be one in which “all” (not only our clients) flourish, then we too can be vehicles for transformative change that brings down the master’s house.
In my own work as a movement lawyer and as the coordinator of this extraordinary project on “The Power of Law, The Power of People”, I have learned that we can use the law, very effectively, to beat the master at his own game—and we must. Once we understand and take our place in a movement in which our legal tools are just one part of a rich and diverse ecosystem of skills, knowledge, wisdom, beauty, rage, pain and joy, we can bring about genuine change.
