Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well.
In these chapters, lawyers and the establishment and enforcement of individual rights play at most a supporting role. The law may be of central importance in structuring the opportunities for exercising leverage to achieve a desired outcome, but this may be in the form of a state of local ordinance or a federal policy already in place, not the outcome of lawyer-led litigation. In short, the lead singer in the long struggle to make Los Angles a more equal place may be a community organizer or a coalition of local advocacy groups, with lawyers playing tambourine. Cummings’s title is actually a play on words, indicating that lawyers may, and arguably should, have to get used to not being the leaders in the struggle for social justice. There may be only an equal place for lawyers, and that may be a very good thing, given that the roots of economic inequality are mostly structural and not the sorts of problems that can be addressed by adding or applying legal rights here and there.
As we know, lead singers aren’t always well behaved. In an influential critique of the involvement of lawyers in movements for social change, Derrick Bell envisioned public interest lawyers as caught between the interests of their clients and social movement goals.1 One of the fundamental ethical ideals informing the lawyer’s role is client autonomy. Lawyers are agents, duty-bound to pursue the lawful objectives of their principal. Social-movement lawyers, however, may feel a stronger allegiance to the interests of a group or wider policy objectives. In pursuit of equality for all, lawyers may be tempted to sacrifice or downplay the interests of their clients. It would be a deeply ironic outcome for lawyers who claim to be motivated by the desire to rectify imbalances of power in society to act in ways that systematically disempower their clients.
I use the term social-movement and public-interest lawyers advisedly here, knowing there is a longstanding debate over how to define public-interest lawyering. For example, what about lawyers who represent classes of claimants in consumer-protection or product-liability litigation, or lawyers who represent individual plaintiffs in employment-discrimination or constitutional-tort cases? Highly compensated plaintiffs’ lawyers may plausibly see themselves as working in the interests of social justice. Then there is the issue of viewpoint: Do conservative legal organizations, such as the Pacific Legal Foundation and the Alliance Defending Freedom, count as public-interest groups?2 They recognize that the idea of public-interest lawyering is contestable, but the core of the concept includes serving those individuals and groups who are shut out of the private market for legal services and seeking to advance the collective interests or political position of some defined group or constituency, whether liberal or conservative. The debate over the public-interest title shows that public interest lawyers claim a distinctive normative vision, in which the actions of lawyers are not justified on conventional, neutral-partisanship grounds – that is, by the promotion of the objectives of clients, whatever they happen to be.
The involvement of lawyers in social movements presents an additional risk, summed up by the cliché that every problem looks like a nail if all you’ve got is a hammer. Lawyers are trained and socialized to employ the tool of litigation, seeking to establish legal rights through judicial decisions. The mythology of the Civil Rights movement centers on the Brown v. Board of Education decision, the culmination of years of carefully planned litigation by the NAACP Legal Defense Fund. As historians and political scientists have argued, however, the role of courts in political and social change is relatively limited.3 Many problems facing marginalized communities, such as lack of economic opportunities, cannot be effectively and comprehensively addressed by adjudication and the establishment of new legal rights. Despite the enduring mythology of the Warren Court, which historian Laura Kalman has claimed remains almost a cult among law professors, the entire project of legal liberalism, in which courts serve as the engine of large-scale social change in the direction of greater equality, now appears to be in disarray.4 The conservative retrenchment of the Roberts Court, including “new Lochner” assertion of constitutional rights to advance a deregulatory agenda on behalf of business interests, is one factor in the disenchantment of progressives with the Supreme Court. However, public-interest lawyers have adapted to the reality in which social justice may not be best served by the creation or enforcement of legal rights through litigation, and the training of these lawyers now emphasizes skills such as negotiation and community organizing.
The theoretical framework of the book is a comparative institutional analysis, in which litigation strategies are understood as complementary with political and other nonlegal alternatives. The broader objectives of a movement may be served by court decisions, rulemaking, legislation, or social changes, such as the establishment of new norms or changes in attitudes. Cummings usefully reorients the analysis around specific campaigns, considering the role of lawyers only secondarily. In some of these campaigns, lawyers themselves were mostly content to assume a secondary role in these campaigns. In others, however, the limits of a litigation-centered strategy revealed themselves. For example, in the campaign to secure equal rights for day laborers, the Mexican-American Legal Defense and Education Fund (MALDEF), filed a lawsuit seeking to recognize day-labor solicitation as protected commercial speech under the First Amendment. This litigation culminated in a victory in the Ninth Circuit, but the victory was narrow, and many municipalities reacted by simply passing new anti-solicitation ordinances which circumvented the Ninth Circuit’s ruling. The problem of abusive labor practices also persisted, even if day laborers did enjoy expanded rights to solicit employment.
One of the book’s strengths is the depth and detail in which Cummings treats each of the episodes he studies. The payoff for a patient reader of each of these case studies is an appreciation of the limits of legal liberalism. Consider, for example, the problem described in Chapter 4 on the redevelopment of the Figueroa Corridor in the vicinity of the Staples Center. The city government had decided to enter into public-private partnerships with real estate developers to transform a working-class neighborhood into a glitzy sports and entertainment hub. Community groups and labor advocates sought to ensure that the economic benefit of the Figueroa Corridor development would not go only to the developers, but would also provide sustainable employment for local residents. Community organizing and coalition building resulted in the nation’s first Community Benefits Agreement, under which the developer agreed to enter into written contracts incorporating public benefit terms, such as affordable housing, neutrality on labor organizing campaigns, green space, local hiring, and living wages. State and local permitting and approval processes provided avenues for community groups to oppose the redevelopment project, but informal action such as protests and public relations efforts provided further leverage on the side of the coalition in its negotiations with the developers. The result of the negotiations was an unprecedented agreement in which the community organizations agreed not to oppose the project in exchange for the developers meeting community employment, wage equity, housing, and environmental goals. (Pp. 185-87.)
Lawyers were involved in the negotiations and contract drafting associated with the Community Benefits Agreement, but they played a supporting role, providing technical expertise while the process of setting the agenda and defining the goals of the campaign were left in the hands of members of the affected community. As Cummings argues in his concluding chapter, there are considerable benefits to lawyers who are willing to play tambourine. Lawyers who have an equal place alongside community activists and organizers are more likely to serve collectively determined goals, as distinct from the objectives lawyers themselves may bring to the representation. (P. 481.) More theoretically, “rights-based legal mobilization was especially prone to reinforce the legitimacy of liberal individualism in ways that conflicted with deeper equality claims.” (P. 484.) The Figueroa Corridor campaign emphasized not right as such, but equality of access to opportunities to obtain jobs with fair labor standards and living wages. In addition, social change brought about through mechanisms other than litigation may prove more durable and legitimate in the long run. (P. 483.) Litigation was an ever-present threat, structuring the negotiated resolution of the controversies described in the book. (P. 487.) But agreement reached in the shadow of the law may prove to be more sustainable than court-ordered reforms.
As much as lawyers may have enjoyed their brief moment of public acclaim as heroes of the resistance to the travel ban, economic and social inequality is highly resistant to solutions that take the form of court decisions vindicating individual rights. An Equal Place is a welcome corrective to the liberal legal mythology running from the Civil Rights Movement and the Warren Court into the present. Successful, sustainable social change requires cooperation, organization, and creative synthesis of the contributions of many different professional disciplines. Lawyers may be indispensable members of the band, but they should not always sing lead.
- Derrick Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976).
- See Ann Southworth, Conservative Lawyers and the Contest over the Meaning of Public Interest Law, 52 UCLA L. Rev. 1223 (2005). One feature of conservative politics today is a sense of being a beleaguered minority, however implausible that may seem to other groups who understand themselves as being out of power. The idea of political power suggests that the title of public interest lawyers properly belongs to those who advocate or otherwise practice in the service of constituencies who lack access to political power via the electoral process or who cannot afford the services of retained counsel. Public-interest lawyering would then be justified in part as a means of rectifying a democratic-process dysfunction, by representing positions and interests that otherwise are not taken into account in determining what outcomes are in the public interest. Cummings has addressed the definitional issue in an earlier work, with his co-author Alan Chen, Public Interest Lawyering: A Contemporary Perspective (2012).
- Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991).
- Laura Kalman, The Strange Career of Legal Liberalism (1996).