Reflections

...At the same time, though, we must ask exactly what is legitimized by reforms that, say, guarantee workers access to unemployment compensation or protect criminal suspects against self-incrimination...

...In 1977, a group of American law professors established the Conference on Critical Legal Studies to fashion a better theoretical perspective on law, legal practice, and legal education...

...Certainly law upholds many existing economic and political practices...

...that is, it does not respond solely and at all times to the interests of the ruling class...

...Two years later, the Lawyers Guild followed suit and established its own Theoretical Studies Committee...

...REFLECTIONS Bill Blum and Gina Lobaco The Left and the Law In 1905, at the founding convention of the Industrial Workers of the World, the credentials committee refused to seat socialist lawyer Louis Boudin as a New York delegate...

...Part of the lag between theory and practice stems from the lasting influence of the classical Marxist assumption that law, like the rest of the apparatus of the State, is simply an instrument of class domination...

...But despite impressive legal victories, the Left has produced little literature exBOB GALE plaining the significance of the legal system from a radical perspective...

...Even the major revisions in capital punishment law wrought by Furman v. Georgia (1972) did not occur until civil rights groups made the death penalty a major focus of their work...

...Undoubtedly there is some basis for such apprehension...

...The relationship between legal activity and mass movements has been addressed by Michael Walzer, co-editor of Dissent...

...Though no conclusive answers can be provided to these questions, even commentators on the Right have argued that progressive reforms tend to galvanize political activity on the part of oppressed groups, and thus help destabilize the political and economic system...

...However, that analysis overlooks the historically close connection between organizing outside the courtroom and legal victories inside it...

...minority bar associations Bill Blum is a Los Angeles lawyer and writer who has written for several national publications...

...To what extent, for example, do social reforms secured through legal advocacy actually fortify the existing order by giving it an aura of legitimacy...

...Left judicial victories, he contended, have been so profound, plentiful, and easy to come by that they have gone beyond the Left's actual political base...

...Another important area of concentration for the progressive legal community is assisting the growing numbers of the unemployed...

...For example, the National Resources Defense Council recently filed a lawsuit to prevent the Department of Energy from activating a nuclear plant in South Carolina where it hopes to produce plutonium and tritium for nuclear warheads...

...The 1980 political shift to the Right was a "populist reaction" against the effectiveness of leftist legal activism, according to Walzer...

...Still, even if we embrace the possibility of achieving social change through legal action, we must acknowledge that there are limits to such a route: Legal victories bring reform but not revolution...

...As the environmental and antinuclear movements continue to grow, courtroom victories are forcing corporations to clean up their hazardous wastes or reconsider plans for nuclear power...

...Success in the legal and political arenas has historically been mutual—or there has been little success at all...

...The interdependence of legal and political work is especially clear these days in the environmental field...

...Last year, the two joined forces to publish a collection of essays on legal philosophy, The Politics of Law, edited by University of Pennsylvania Professor David Kairys, in which the contours of an updated legal outlook are set forth...

...As sociologist Theda Skocpol noted in States and Revolution, the only feasible road to revolution in advanced capitalist societies may be through a long and gradual series of such reforms...

...But at the turn of the century, it was conventional wisdom on the American Left to be wary of lawyers...

...The decline of the civil rights movement, for example, has been accompanied by serious setbacks in death penalty and desegregation cases...

...Speaking against Boudin, Socialist Labor Party leader Daniel De-Leon, who would himself be expelled from the IWW three years later, declared: "If you admit a lawyer...

...Instead, it recognizes what practical experience should have made clear long ago: that law is, paradoxically, both a tool of social control and a potential channel for social progress...

...The Guild has also begun formulating an "Economic Bill of Rights" to prevent plant closings and establish the right to a job and a living wage...

...by what process of elimination can you exclude a policeman...

...Though this view hardly represents the last word on power in a modern capitalist society, it does shed light on why the State may occasionally pursue a course that runs counter to the wishes of corporate America—as the Roosevelt Administration did during the New Deal and as the courts have done on any number of occasions...

...They wish to thank Victor Rabino-witzfor providing them with the IWW anecdote...

...Taking account of massive state intervention into the economy, the revised view rejects the assumption that capitalist domination of the economic "base" gives business complete control of the ideological "superstructure," including the legal system...

...In the late 1960s and early 1970s, such European structuralists as Nicos Poulantzas and such neo-Marxists as Ralph Miliband asserted that the State remains relatively autonomous...

...Indeed, a progressive movement thrives within the legal profession itself: The forty-seven-year-old National Lawyers Guild serves as a bar association and political forum for progressive legal practitioners, and its 7,000 members regularly represent political activists...

...If we have learned nothing else, we now understand that lawyers—like factory workers, artists, intellectuals, journalists, and teachers—are essential to the fortunes of the Left...

...Progressive legal work, he fears, may actually subvert the Left's ultimate goal of fundamental change by dulling popular discontent and inducing political acquiescence...

...a variety of nonprofit public-interest law firms work to secure rights for the handicapped, renters, women, consumers, minorities, the poor, the unemployed, and others of the disadvantaged...

...This lawyers' movement has changed the face of the profession and significantly expanded the rights enjoyed by all Americans...

...The Government, too, has been targeted by public-interest law firms when its policies threaten the environment...

...Michael Parenti expresses this concern in his popular book, Democracy for the Few...

...American progressives have come a long way since 1905...

...Such important triumphs as Brown v. Board of Education (school desegregation, 1954) and Roe v. Wade (abortion rights, 1973) took years of work by teams of lawyers, supplemented by diligent grass-roots organizing...

...litigate on issues of affirmative action, discrimination, and voting rights...

...There is a substantial gap between the Left's use of the law and its understanding of it...

...With the emergence of more complex and subtle theories of the State, however, instrumentalist notions of law have given way to more sophisticated formulations...

...Except for Boudin, Clarence Darrow, and a few attorneys associated with the Socialist Party, such as Louis Waldman and Morris Hillquit, lawyers ignored the socialist, labor, farm, or women's movements...

...the American Civil Liberties Union, made up of lawyers and nonlawyers, provides assistance to individuals and organizations deprived of their constitutional rights and lobbies to stave off assaults on the Constitution...

...But just as strong political movements provide the climate for legal victories, political weakness can lead to legal losses...

...The United States has become the world's most litigious society, and leftist lawyers are now on the cutting edge of many struggles for social justice...

...In every area where progressive attorneys have left their mark—in civil rights, civil liberties, women's issues, and protection of the environment—their triumphs have been preceded and accompanied by popular stirrings that raised public consciousness and heightened judicial sensitivity...

...In practical terms, of course, the political choice facing the American Left is not between reform and revolution...

...Unemployed councils are forming in the recession-wracked areas of the Middle West and Northeast, and Lawyers Guild attorneys are helping them obtain retraining grants or arrange worker buyouts of shut-down factories...

...In a 1981 article, Walzer criticized left-wing lawyers not for achieving too little but for achieving too much...

...Do these applications of the law bolster capitalist property relations, or do they fulfill democratic and egalitarian norms that are fully consistent with socialist ideals...

...And this reality continues to generate questions about the possibilities of working within the legal system...

...Victor Rabinowitz, an elder statesman of the radical legal community and a co-founder of the Lawyers Guild, says, "Legal victories are almost always made in conjunction with large-scale political activity...

...This was the thesis laid out by conservative Harvard Professor Samuel P. Huntington in his revealing study, The Crisis of Democracy: that as women and minorities wrest higher levels of social welfare benefits from government, their demands tend to escalate, not diminish into political passivity...

...It is not true that courtroom victories come with ease to the Left...

...Gina Lobaco contributes regularly to In These Times and is public relations director of a Los Angeles-based public-interest law firm...

...The alternative is to wait in vain for a cataclysmic upheaval that, like the Second Coming, never quite materializes...

...And to the extent that the latter are fostered, is political quietism necessarily the result...

...And Walzer's contention that left-wing legal victories precipitate right-wing reactions must also be placed in context: In a pluralist society, it should come as no surprise that the Right organizes to reverse the Left's gains...

...The United States will not soon be in a "revolutionary situation...

...Since the capitalist class is economically dominant, the reasoning goes, it can manipulate government policy and law at will...

...It is nearly impossible to win in the courts without a movement to educate the public and judiciary...

...I know of no lawyer who deserves any place in the labor movement...

...Another delegate opposed to seating Boudin, Lillian Forberg, was even more adamant: "The only thing an attorney ever did in this world," she insisted, "was to support the capitalist class...

...But history has a way of eroding even tenaciously held convictions...

...Today, such attitudes toward the role of lawyers as agents of social change seem dogmatic and unrealistic...

...Ultimately, the key to extending radical reforms lies not with lawyers but with social movements...

...Rather, our choices for the foreseeable future are between reforms that serve the interests of big business, such as Ronald Reagan's recent tax initiatives, and those that French Marxist Andre Gorz has called "nonreformist reforms"— changes that substantially enhance the democratic rights and power of average citizens in their daily lives as workers and consumers...