I. Introduction
Apparently, in countries like Australia and the United Kingdom, it’s common for defense attorneys and prosecutors to refer to each other as “my friend” or “my learned friend.”[1] Earlier this semester, I participated as a pretend-juror for a mock trial, and I was surprised to hear an LLM student use the phrase when describing their opposing counsel, another student in the role of the prosecutor. I only barely kept myself from blurting out, “I think your friend over there is trying to throw your client in prison.” Apparently in some countries, trial attorneys will often go back and forth as prosecutors and defense attorneys,[2] which makes this kind of terminology understandable since the opposing counsel could literally be a friend of theirs. In the United States, however, the term “friend” seems incredibly inappropriate. In the US, being a defense attorney isn’t merely some arbitrary choice of occupation. At least today, it’s a position almost always inextricably linked with abolitionism; a broader ideological understanding of the criminal legal system, its practice, and its foundations as oppressive, bigoted, and extremely harmful. Public defenders in the US are often explicitly self-identified “abolitionists” and see their work as one piece of a broader movement fighting for broad legal and social change. The defense attorney, then, arguably should not or perhaps cannot be a true “friend” of the prosecutor. They’re not merely doing a job. They’re working towards contradictory visions of the future.
The idea that progressive attorneys aren’t merely doing a job, but are contributing toward broader positive change obviously goes well beyond public defenders and includes movement lawyers and civil rights lawyers, § 1983 lawsuits against government entities and class action lawsuits against large corporations, etc. I intend to pursue broad positive change, myself, as a housing attorney after graduation. What all of these attorneys have in common is the importance of not missing the forest for the trees; not losing sight of the way our individual work should contribute toward broad positive change. Occasionally, however, in an effort to maintain sight of the forest, we lose sight of the trees.
Dr. Cornel West’s article on the “Role of Law in Progressive Politics” is an incredible work of scholarship which argues for a kind of leftist optimism.[3] It elegantly and concisely explains how America’s conservative underpinnings limits the efficacy of liberalism as a means of achieving substantive democracy and positive change, but how progressive lawyering and Critical Legal Studies can help. It details some of the strengths of progressive lawyering and how progressive lawyers can work to benefit progressive movements. However, the article says disappointingly little about the value of defensive lawyering outside of its place in the broader movement. In its focus on the forest, it loses sight of the trees.
II. “The Role of Law in Progressive Politics”
The goal of Dr. West’s article is to “carve out a vital democratic space left between the Scylla of upbeat liberalism that harbors excessive hopes for the law and the Charybdis of downbeat leftism that promotes exorbitant doubts about the law.”[4] The hopes for upbeat liberalism are excessive because liberalism lacks the efficacy for significant positive change. West emphasizes the importance of acknowledging the historical roots of American culture: that “American society is disproportionately shaped by the outlooks, interests, and aims of the business community, especially corporate America” and has a “chronically racist, sexist, homophobic, and jingoistic nature.”[5] Although liberalism can pay lip service to racial and sexual issues of inequity, the “sacred cow of American Liberalism” is “economic growth achieved by corporate priorities,” meaning that the ideology is unwilling to address “the fundamental cause of social misery—the maldistribution of resources, wealth, and power in American society.”[6]
Opposite the unrealistic positivity of liberalism is the pessimism of leftism. West points to two “ways out of this labyrinth” of a conservative status quo for leftists. Either poor people rebel and exercise “anarchic expression” or progressive politics “find[s] a way of channeling the poor’s talent and energy into forms of social motion that can have impact on the ruling powers.”[7] Leftists tend to look at these options with pessimism. Today, liberalism has a kind of cultural hegemony or a monopoly on what are perceived to the be the legitimate mechanisms for change. Effective social movements are often dismissed as unrealistic while legitimated liberal methods for change like political campaigns often feel hopeless. West highlights the campaigns of Jesse Jackson as an example. West says that these campaigns “reveal the weaknesses of American progressive politics: the obsession with media visibility and the inability to generate social motion outside electoral politics.”[8] In the face of these seemingly hopeless campaigns against the systemic problems liberalism is unwilling to address, leftists are left pessimistic. West, however, argues that there is still room for a lot of positivity.
Dr. West outlines the role that progressive lawyers can play in creating substantive democracy and broad positive change.
First, past victories encoded in the law must be preserved in order to keep alive the memory of the past, the struggle in the present, and the hope for the future. Second, this preservation, though liberal in practice, is radical in purpose. It yearns for new social motion and movements that can enact and enforce more progressive laws before repression and incorporation solidify. In this regard, radical American legal practice is a kind of Burkean project turned on its head: it fosters a tradition not for social stability, but to facilitate threats to the social order; it acknowledges inescapable change not to ensure organic reform, but to prepare for probable setbacks and defeats. Third, the new memories and victories inscribed in new laws -are kept alive by the defensive work of progressive lawyers to help lay the groundwork for the next upsurge of social motion and movements.[9]
Progressive lawyers work defensively in order to preserve the successes of prior radical movements from conservative attack, they prepare for potential setbacks and lay the groundwork for potential victories, and they defend those victories from additional attacks. Although these lawyers must necessarily work within the bounds of a liberal system (the law), they work toward radicalizing that system by “put[ing] forward interpretations of the precious ideal of democracy that call into question the unregulated and unaccountable power of corporate America” and they “expose the authoritarian attitudes of cultural conservatism.”[10]
III. Some Additional Praise for Defense Lawyering
Dr. West’s historical account and emphasis on the important role of progressive lawyering is effective, but something about the discussion feels incomplete. It’s helpful here to draw an analogy to the medical field. Surgeons, at their best, seek to help people. If a patient has brain cancer and is in need of a surgery to remove a tumor from their brain, a brain surgeon will operate and attempt to save the life of the patient by removing the tumor. If the surgeon does their job well, the patient will be helped. The surgeon might see their work as being part of a broader medical fight against cancer, or they might not. They might derive the value of their work not as a small piece of a larger movement but from the help they provide to their individual patients; from the lives they save. Likewise, a public defender may see the work they do as deriving its value from a larger movement toward abolition, or they might instead focus on the people they help keep out of prison. Additionally, the patient who has a tumor removed and whose life is extended by several years or decades will likely not then turn to their brain surgeon and ask “but what have you done in the fight to cure cancer?” And a family whose eviction case is thrown out thanks in part to the work of a housing attorney will likely not turn to their attorney and ask “but what have you done to strengthen tenant protections more broadly?”
IV. Conclusion
None of this is to suggest that it’s unimportant or unhelpful to frame the work of progressive lawyers among broader movements for positive change. Such a framing is extremely helpful. Most progressive lawyers are rightfully concerned about these broad movements as I note earlier. Additionally, progressive lawyering can be brutal and demoralizing. Public defenders, for example, often lament how common it is to lose their cases; and when losing means that your client might be kept in prison for their whole life or executed, it can be difficult to maintain any kind of positivity. This is one of the strengths of Dr. West’s article: by highlighting the way progressive lawyering connects to broader movements, those losses can feel less pointless or futile.
However, we should strive to maintain sight of both the value these various forms of progressive lawyering have as a component of broad social change as well as the value they provide to individuals facing some of the most stressful and difficult times of their lives. We should maintain sight of both the forest and the trees.
Notes
[1] Tichawana Nyahuma, Why a Lawyer is ‘My Learned Friend’, The Sunday Mail (Feb. 21, 2016), https://www.sundaymail.co.zw/why-a-lawyer-is-my-learned-friend.
[2] Frequently Asked Questions, The Secret Barrister, https://thesecretbarrister.com/frequently-asked-questions/ (“Many criminal barristers prosecute (instructed predominantly by the Crown Prosecution Service (CPS), as well as other prosecution agencies such as HMRC and local authorities) and defend (instructed by defence solicitors), although there are particularly worthy chambers who will only defend, and some hardened types who solely prosecute.”).
[3] Cornel West, The Role of Law in Progressive Politics, 43 Vand. L. Rev. 1797 (1990), https://scholarship.law.vanderbilt.edu/vlr/vol43/iss6/8/.
[4] West, supra note 3 at 1797.
[5] Id. at 1798.
[6] Id.
[7] Id. at 1800.
[8] Id. at 1801.
[9] Id. at 1804.
[10] Id. at 1805.