'Elite Capture' as a Systemic Framework to Evaluate Social Change Lawyering

Abstract

This Article applies the frameworks of elite capture and deference politics (epistemic deference), as articulated by philosopher Olúfẹ́mi O. Táíwò, to long standing debates about the efficacy and accountability of lawyering for social change. Much of the existing literature on law and social change critiques current models of social change lawyering. Prominent critiques include lawyers’ domination over individual clients; lawyers’ lack of accountability to impacted groups; lawyers’ focus on issues amenable to court challenge (reinforcing existing power hierarchies); and lawyers’ moving issues to elite dispute-resolution professions. In effect, each of these dynamics individualizes rights claims away from the subversive energy and authentic leadership that could bind social movements. Core strands of law and social change literature suggest that lawyers defer to movement organizers and center-impacted community members to remedy these problems—the assumption being that social movements would create unmediated problem-to-change architecture, if only lawyers would get out of the way.

The concepts of elite capture and deference politics, as described by Táíwò, are related. “Elite capture” describes structured social systems as more responsive to the people at the top than to the larger group as a whole. Táíwò identifies “deference politics” as the attempt to shift the distribution of power in the rooms we operate within by deferring to marginalized people in the rooms. These conceptualizations problematize the solutions that law and social change scholars propose. First, Táíwò finds elite capture endemic in human interactions involving decision making. In every space, elite capture diverts attention to the interests of the most advantaged, sublimating all other adjacent interests and obscuring the fact that outsiders also might have interests. The existence of lawyers at the table does not negate elite capture but, instead, likely increases its presence. Second, lawyers’ attempts to remedy elite capture by deferring to those most marginalized in the room, in actuality, have the undesired effect of augmenting elite capture. The room itself operates as a capsule of elite privilege as even entry into the room requires some social advantage. Applying Táíwò’s analysis, in order to mitigate elite capture, lawyers (and others) must leave the room entirely in order to obtain diverse and contrary input, thereby challenging the dynamics that otherwise would play out in the room.

Our point in applying Táíwò’s conceptualizations to movement lawyering is neither to let lawyers off the epistemic hook nor to imply that thoughtful lawyers have been wasting their time worrying about
dominating social movements. If anything, the urgent value of Táíwò’s work is to sharpen the focus on the threat lawyering poses to social movements and to extend our inquiry onto the ways in which power hierarchies are replicated and reinforced in all relationships. By passing off decision-making to organizers or relative micro-elites in grassroots movements, lawyers cannot evade the deeply deleterious effects of elite capture; the systems in which lawyers are working to create change are themselves shaped by and feed upon elite capture and epistemic deference dynamics.

Elite capture and deference politics create dysfunctional communication not only on the static individual level, but also at movement and societal levels. Táíwò’s concept of elite capture as an inextricable constraint on liberatory communication expands the conversation by demanding a systemic analysis. On an interactive power systems level, paying attention to the distortions of elite capture and deference politics shifts lawyers’ perspective. A bounded power-and-systems approach to law and social movements guides us in analyzing the elements—institutions, roles, and artifacts—that sustain systems resistance to change.

This Article further explores how social change lawyers might analyze their role at a systems level that focuses on the construction of power hierarchies in order to confront and even leverage the dynamics that produce elite capture. As part of this exploration, we describe three concrete programmatic law-and-social movement attempts to disrupt elite capture: (1) a Boston-area project in which refugees are legally trained and accredited to represent other forced migrants in immigration proceedings, hearings, trials and appeals; (2) the role of lawyers—a role we have previously called catalytic lawyering—in constructing the fractal logic of the 2010-2014 campaign to end the Secure Communities program; and (3) various conceptions and possibilities in restorative and transformative justice. Despite the wide difference in contexts, scale, institutions, roles, and methods, these three examples are united in their view of the larger power systems they are trying to affect. Each example cautions lawyers to move away from identity-based politics and toward a broader conception of community and radical empathy for all interests represented in impacted communities.

In the end, as Kurt Lewin’s dictum eschews, to understand a system, we must first try to change it. We land where Táíwò’s admittedly non-optimal advice leaves us—identifying and appreciating the roles elite capture and deference politics play in sustaining dynamic networks of relationships, institutions, roles, and path-dependent habits of mind. Moving forward, lawyers must be able to identify elite capture and deference politics. Once identified and acknowledged, lawyers can account for both “in-the-room” and “beyond-the room” dysfunctions through radical empathy; fostering alternative systems of relationships with grassroots membership embedded in democratic structuring; courageous experimental praxis: and a resuscitation of identity politics in service of bridging relationships among communities defined by common fates.

Keywords: elite capture, deference politics, social change lawyering, community lawyering, movement lawyering, collaborative lawyering, rebellious lawyering, cause lawyering, social change, client-centered lawyering, law and social change