What does an LPE perspective imply for the practice of law? In other words, what is the “clinical wing” of LPE? My recently published essay, “Securing Public Interest Law’s Commitment to Left Politics,” seeks to denaturalize and politicize “public interest law,” arguing for a public interest law focused chiefly on building left political power by supporting movements and organizing. In its current popular usage, public interest law mostly refers to the wide variety of legal practices that are motivated by “progressive” political commitments on the part of the lawyer. (It also increasingly includes conservative causes, especially in the official, institutional definitions of some law schools, which serve as a sort of concession to right-wing students in the name of “intellectual diversity.”) Yet despite its vagueness, public interest law is highly institutionalized, with curricular offerings, scholarships, and fellowships devoted to it. The set of opportunities for each new cohort of progressive lawyers is essentially identical to the contemporary institutional forms of public interest law. This, at bottom, is why it matters to contest the meaning of the term.
As I argue in the essay, I believe that the central challenges facing public interest law today are the conservative shift in the courts and the narrowing of public interest law’s political ambition and vision. The present legal structure, capped by a radically conservative Supreme Court, is an intensely unfavorable arena in which to fight for progressive reforms (Jedediah Purdy has argued that some of these developments in case law, such as Citizens United and Parents Involved, reflect an emerging “constitutional neoliberalism”). At the same time, funding for civil and criminal legal services is woefully inadequate. Almost all of the potential that the legal system may have had to transform society toward progressive ideals (as in the “golden age” of court-centric impact litigation strategies during the Warren Court era) has been all but snuffed out by the right’s political power. On the other hand, we are currently living through a wave of movement energy on the left, which that represents the best opportunity for progressive lawyers to bring their legal and political visions into being.
In response to this context, I argue that progressive lawyers should actively construct a new concept of public interest law defined by a core commitment to building left political power. In my essay, I use labor lawyering as a model to demonstrate how such a commitment can be translated into concrete forms of practice for lawyers in any field. For example, the current employment law regime fails to guarantee a baseline of dignified working conditions in the US. In this context, I argue that labor lawyers should use workplace legal violations to agitate workers and motivate them to engage in collective action, with the ultimate goal of promoting an understanding that workers’ organizing goals should not be limited to winning a legal case. Although this recommendation is based on the particular limitations of the current employment law regime, this method of linking lawyering practices to an LPE perspective on law and politics is universally applicable.
Although the essay does not contain an explicit law and political economy frame, I am writing from an LPE perspective and hope that my analysis is considered a part of the LPE project. There are several connections between my argument and the more “doctrinal” LPE work published by the scholars associated with this blog. Both are driven by a shared commitment to a “more egalitarian and democratic society.”[1] Both are prompted by, and respond to, the present historical conjuncture: social and economic crises, the rise of a powerful right wing, but also a revival of movements on the left. And both are premised on the fundamental imbrication of law and politics.
As a project focusing on reforming law and changing the course of legal thought, LPE is necessarily concerned with creating the conditions for its own actualization. Although LPE, as an academic project, may have a diffuse or indirect impact on left movement culture writ large, its locus in the law schools gives it the opportunity to shape the perspectives of each new cohort of progressive law students. How progressive lawyers practice law matters for LPE, because they play a role in building the movements necessary to cement new interpretations of the law. An LPE legal education should therefore include critical perspectives on both core doctrinal subjects (such as the many thoughtful syllabi, reflections on teaching, and course toolkits offered by contributors to this blog) and the practice of law. There is a natural synergy between the two: LPE approaches to law help students understand that deep, structural change is necessary to renew democracy in our society; LPE approaches to lawyering give students the tools to use their professional skills to bring about that change. Perhaps we might also begin to build networks between LPE scholars and public interest law practitioners. In the long run, clinical and practitioner-oriented efforts could help bolster LPE as, to draw on Duncan Kennedy’s distinction, a movement rather than merely a school of thought.
[1] From the LPE “manifesto.”
