Critical Legal Consciousness in Action

Abstract

This Comment is a reply to Professor Orly Lobel's The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937 (2007). Her central insight - that all forms of social action "potentially have cooptive as well as transformative effects" - is elegant in its simplicity and yet radical in its implications. Lobel argues that just as earlier reformers may have been seduced by the "myth of rights" into privileging legal reform over political action, the current scholarly orthodoxy - which she identifies with "critical legal consciousness" - is overly determined by an equally pernicious "myth of activism" that devalues the contributions of legal reform to transformative efforts and instead promotes "extralegal" activism. I want to build upon the foundation that Lobel has painstakingly erected to illuminate a scholarly perspective that understands legal reform strategies as presenting a set of basic tradeoffs analogous to those presented by other techniques of social transformation. I do this by grounding Lobel's theoretical account in the practical reality of contemporary public interest advocacy. In particular, I contend that if we look to what lawyers are doing in practice, we see a more optimistic picture of legal activism, one in which lawyers and their allies are quite thoughtful in their power analysis of legal strategies and skillful in their navigation of the shoals of cooptation. This practical vantage point allows us to reframe Lobel's analysis in two important ways. First, it challenges some of the assumptions underlying the critique of legal cooptation. Specifically, what we know about practice suggests that while some lawyers surely push legal activism at the expense of movement energy, there are many who defy that categorization. Second, attention to practice complicates Lobel's story about the turn to "extralegal" activism "outside" the law. A broader view of contemporary practice reveals a response to the critique of legal cooptation that is not trapped "outside" the law, as Lobel argues, but rather is sophisticated in operating across "legal" and "non-legal" fields. It is in this sense that current practice has outstripped Lobel's critique of extralegalism, embracing a version of what I call constrained legalism, which strategically deploys law in a way that is neither utopian in its hopes for legal reform or rejectionist in its dismissal of legal avenues of transformation.

Keywords: public interest law, legal profession, law and society