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Law Clinics and Racial Capitalism


Sameer Ashar (@sameer_ashar) is Clinical Professor of Law at the University of California, Irvine. 

Renee Hatcher (@reneechatcher) is an Assistant Professor at UIC John Marshall Law School, where she directs the Community Enterprise & Solidarity Economy Clinic.

John Whitlow (@zhionny74) is an Associate Professor at CUNY School of Law, where he co-directs the Community and Economic Development Clinic.

This post kicks off a symposium that will highlight how law school clinics can disrupt the infrastructure of racial capitalism. Read the rest of the posts here.


Law schools are disorienting spaces, particularly for those who arrive seeking tools for justice and transformation. The basic 1L curriculum is steeped in our country’s history of settler colonialism and slavery, and the law taught in the first year largely constitutes a legal infrastructure that, as Angela Harris has recently written, has both “fostered and protected racial capitalism.” In this symposium, we seek to locate space in the legal academy in which clinical teachers are disrupting the legal infrastructure of capitalist reproduction and its embedded systems of identity-based oppression. It is our hope that this search – the naming of a critical pedagogical purpose and approach, and solidarity-building among its practitioners – can support ongoing efforts, both inside and outside the academy, to resist the violent and hierarchizing logic of racial capitalism and build toward emancipatory futures.

For purposes of this post, we understand racial capitalism as grounded in the critique of traditional Marxism leveled by Cedric Robinson and his intellectual heirs, themselves inspired by Du Bois’ treatment of the tragedy of Reconstruction and the Black radical tradition. Robinson wrote against the notion that capitalism produces a unitary working-class political subject. Instead, he argued that capitalism emerged in Europe as an already racialized system, and that capitalist exploitation is intrinsically intertwined with racial differentiation. As Ruth Wilson Gilmore succinctly puts it, “capitalism requires inequality and racism enshrines it.” In short, the racial organization of the world is concrete and material, as well as ideological: exercises of market and state, legal and extra-legal power are informed by racial thinking, and converge to disproportionately mete out vulnerability – to police violence, criminal punishment, homelessness, joblessness, stress, illness, poverty, and, in Gilmore’s words, to premature death – on a group-differentiated, racialized basis.

The implications of the analytical framework offered by racial capitalism are manifold and politically challenging. The inequality produced by capitalism does not lead to a neat political divide between the haves and the have nots. In fact, quite the contrary – the process through which capital accumulates has historically seized on all manner of human differences, which are often accounted for – and naturalized – through racial categorization and gendering. The result of this process, which is constituted substantially by law, is the cementing as normal and unchanging inequalities that are, in reality, socially produced and dynamic; all the while, the extraction of value from a racially- and gender-segmented working class is intensified, with benefits concentrated evermore in the hands of the few.

Our current moment is defined by numerous severe and interlocking crises – intensifying economic inequality, racialized state violence, environmental catastrophe – and by social mobilizations that have begun to call into question the legitimacy of the political-economic and social order. For law school clinicians, racial capitalism offers a challenge and an opportunity. How do we disrupt the normative legal code ingrained in other courses, in ourselves, and in our students? Can law schools ever be a site of liberatory pedagogy? How do we allocate our scarce legal resources for community and movement formations? How do we levy the law to build power for oppressed communities while also understanding the limitations of purely legal strategies? What frameworks can we draw upon to subvert and shift the paradigm of the current legal regime? How have our prior formulations of the problem areas on which we work constrained our clinical practice? Does the work we do in law school clinics truly alter relationships of power in society, or are we (and our students) hamsters on the wheel of liberal legalism?

We believe that a deeper theoretical understanding of racial capitalism, co-generated with our students, partners, and allies, will move us toward cases and projects that are focused on structural inequalities of power and that confront racial subordination (as well as other forms of identity-based subordination) more forthrightly. Our experiments in legal advocacy and radical solidarity, in turn, could and should inform current scholarly and theoretical debates, as the Black radical tradition receives greater attention across the legal academy and in interdisciplinary spaces.

In a challenge to the racially hierarchized spectrum of suffering at the core of racial capitalism, Olúfẹ́mi O Táíwò has argued for a collective, solidaristic mode of securing life. Instead of privileging value extraction, private property rights, the pursuit of individual gain, and the like, Táíwò’s concept of collaborative security revolves around a re-conception of the common good – one that is fundamentally geared toward the establishment of a social order based on principles of economic democracy and social and racial justice. The animating force of this project is a radical vision of solidarity – one that acknowledges capitalism’s intrinsic tendency to produce and exploit racial differentiation, and that converts people’s variegated exposure to vulnerability into a common bond.

In the series of entries that follow, we highlight how law clinics are and can be a site of disruption and contention vis-à-vis racial capitalism. Julia Hernandez and Tarek Ismail (CUNY Family Defense Practicum) describe the family policing system as a machine of public and private extraction in impoverished communities of color and explain how “radical early defense” can throttle that machine. Alicia Virani (UCLA Bail Practicum) criticizes binary thinking in the criminal legal system due to conceptual and material scarcity and advances restorative and transformative justice in her practicum. Missy Risser-Lovings (CUNY CED Clinic) discusses teaching racial capitalism in the urban environment as a foundational lawyering skill and as creating a consciousness that affects nearly every choice that student lawyers make in serving clients through her clinic’s Economic Democracy docket. Finally, Stephanie Campos-Bui (Berkeley Policy Advocacy Clinic) challenges litigation as a primary mode of legal contestation and discusses how her clinic has grappled with abolitionist vs. reformist reforms in the area of criminal legal fines and fees.

Together, these contributions demonstrate how radical solidarity projects that expose overarching systems of oppression and connect to transformative social movements enable law clinics to engage in transformational lawyering. Further, this work disrupts the internalization – by ourselves, our students, and our clients – of the harmful legal code of capitalism. And yet, we remain wary as we remain grounded in practice. How do we turn a small claim for unpaid wages on behalf of a day laborer into something other than an individualistic claim contingent on the slow operation of underdeveloped systems of state power? What to do with a single eviction claim or application for assistance in the development of a small business? How does the limited scale of our work confront the abyss between where we are and where we need to go? How do we build the radical solidarity that Táíwò describes?

In the words of Stefano Harney and Fred Moten, “In the face of these conditions one can only sneak into the university and steal what one can. To abuse its hospitality, to spite its mission, to join its refuge colony, its gypsy encampment, to be in but not of – this is the path of the subversive intellectual in the modern university… After all, the subversive intellectual came under false pretenses, with bad documents, out of love. Her labor is as necessary as it is unwelcome. The university needs what she bears but cannot bear what she brings. And on top of all that she disappears. She disappears into the underground, the downlow lowdown maroon community of the university, into the undercommons of enlightenment, where the work gets done, where the work gets subverted, where the revolution is still black, still strong.” We write and teach in that spirit.