Progressive Lawyering in Politically Depressing Times: Can New Models for Institutional Self-Reform Achieve More Effective Structural Change?
American University Washington College of Law
January 24, 2008
This Essay examines both the promise and the drawbacks of new models of achieving institutional self-reform through voluntary, self-designed processes, such as those undertaken in a case study Susan Sturm presents of the National Science Foundation's (NSF's) ADVANCE initiative, a program designed to encourage universities to make progress in eliminating the severe under-representation of women in academic positions in the sciences.
The promise of such models is multi-faceted. Most important, they offer paths for bringing about institutional reform without extensive management from legislatures or courts. They bring together affected interests to find win-win solutions. Law supports the achievement of consensus through voluntary negotiation by presenting a normative background and, if necessary, a background litigation threat, but voluntary approaches allow the parties to avoid the gamesmanship and finger pointing involved in litigation and instead devote their efforts to finding creative solutions for the future. Such approaches are also more likely to generate the buy-in of those who must implement reforms; without such buy-in, lasting change is unlikely to occur.
As to the drawbacks of voluntary, self-designed processes, I argue that these may in many ways mirror their benefits. The central problem on which I focus concerns the vagueness of such models with respect to how to secure the participation of traditional outsiders who are the supposed beneficiaries of institutional change processes that take place through the efforts of actors operating within institutions. This vagueness leads to a host of unanswered questions: The central goal of the project Strum studies is to make institutions more open, but who decides to whom they should be opened, what kind of openness is appropriate, and how to balance openness with other institutional values? How much change is enough?
I also focus on Sturm's discussion of lawyers' potential in organizational catalyst roles under such alternative models, as further developed in a budding literature that promotes alternative paradigms for lawyers' involvement in institutional change processes. Drawing on an extensive legal ethics literature, I query the proper limits to the de-linking of lawyers' work from the representation of the self-articulated interests of actual clients or client groups.
Number of Pages in PDF File: 30
Keywords: democratic experimentalism, structural reform, lawyering
Date posted: February 3, 2008