Toward Prefigurative Lawyering

PUBLISHED

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

PUBLISHED

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

In June 2020, as the initial wave of the pandemic swept across the country, a group of workers gathered outside of a packing plant in the Central Valley of California and began picketing. Workers who had tested positive for COVID joined the line from inside of their cars. Led by a packing-plant veteran, a forty-two-year-old mother of two, the workers called on their employer to adopt protective measures in the wake of the rash of COVID infections that had ravaged their workforce. In May, workers at the plant had started to fall sick, bringing the illness to the children and elders in their homes. According to the workers, the company had initially failed to provide or require the use of PPE in the plant; later, it charged workers eight dollars per mask. By July, 150 of the approximately 400 workers at the plant had been infected, and one worker had died.

The conditions at the plant were part of a larger national story, in which essential workers in the low-wage sector were subjected to sickness and premature death. COVID tore through communities of Latinx immigrant workers in the Central Valley, much as it did in meat-packing plants in Tennessee and Minnesota. These were essential workers, as defined by the company under federal and state guidelines, ensuring that the company could continue to earn revenue from sales of food during the pandemic. The workers were unable to, in the words of Aziza Ahmed and Jason Jackson, “control their risk of exposure” to COVID.

During and after the first walkout, and with help from the United Farm Workers (UFW), the worker-leaders spoke to reporters and generated a spate of stories about the conditions in the plant. They led a second walkout the following week after a poor response from the company. The company then began an extended campaign of discipline and terminations aimed at the worker-leaders. One worker was prevented from using a computer to tally products on the plant floor and was eventually discharged. Another was fired immediately. Others, who were hired through temporary staffing agencies, were told that their contracts had been terminated.

UFW was not planning to organize the plant for a variety of reasons, but it sought to honor the solidarity demonstrated by the workers. The Workers, Law, and Organizing Clinic (WLO), which I direct at the University of California, Irvine, came to represent the fired worker-leaders through the union’s primary outside counsel, Martínez Aguilasocho Law, Inc. Working with the UFW lawyers, the WLO clinical team researched potential claims, interviewed workers, began informal discovery, and drafted a state court complaint. In doing this work, we asked: how might we advance a critical understanding of the conditions to which “essential workers” were subject during the pandemic? How do we accentuate and elevate the worker solidarity that led to the terminations? How might we depart from standard representation in litigation to think prefiguratively with our clients and collaborators? Toward what future might this work gesture?

In an essay that I published earlier this year, Pedagogy of Prefiguration, I made the case that lawyers and law students have the capacity to engage in prefigurative thinking with social movement formations. To do so, I argued that it is essential that we develop (1) a shared social analysis with our movement partners, (2) a capacity to engage in flights of radical imagination; and (3) an aptitude for truly dialogical relationships with movement clients, neither overly deferential nor marked by lawyer domination. In this post, I focus on that first capacity of lawyers—the ability to engage in shared social analysis with movement formations. Consider this a contribution to the development of an abolitionist lawyering praxis, specifically one that embeds insights from LPE in collaborations with social movements.

Prefigurative Thinking

This moment is filled with peril for all but those with extreme wealth. Labor remains relatively weak, and left movements persist in the face of strong countercurrents. It is a moment that requires radical experimentation with new, utopian institutional and social forms. Those utopian forms, while often relatively small in scale or narrow in application due, can suggest new institutional arrangements and help us imagine more just and equal social relations on a wider scale—in this way, they are what scholars sometimes refer to as “prefigurative” projects. Prefigurative projects fight the despair of ostensibly unchangeable institutional and social conditions and provide a means by which we may engage in collective utopian thinking, unfettered by the ongoing and depredating operations of capital facilitated by law.

There is a well-known history of prefigurative politics on the left (including, for instance, in the work of the Black Panthers and Young Lords) and instances in which the state has scaled experiments in mutual aid and social provision. Contemporary movements have drawn on that history to make broad interventions against policing and criminalization, surveillance and militarization, fossil-fuel extraction and dependency. They then pivot to defining new horizons for public safety, migration, and protection of land and water. Movement activists think toward drastically redistributing power and reconstructing institutions.

The relationship between the policy platforms and manifestos of social movements and small-scale experiments on the ground is mutually reinforcing and often fostered in spaces of collective public protest. In his reading of the George Floyd protests of 2020, Veryl Pow describes “acts of prefiguration to create a sustainable space, free from police violence or state intervention, where land is commonly accessed and resources are managed and distributed directly among grassroots participants.” Drawing on the experiments of the Occupy movement, Michael Haber describes “prefigurative tools” developed by anti-authoritarian activists, including means by which to structure and defend autonomous communities and to ensure that power within groups is shared horizontally. In these movements, prefigurative thinking has provided a framework to defy the inevitable retrenchment that follows from significant challenges to the status quo. Activists continue to, in the words of Amy Cohen and Bronwen Morgan, draw on “legal logics and thoughtways,” notwithstanding their deep loss of faith in conventional law reform projects.

Law—both its omnipresence as a force of social control and near-total absence as a constraint on capital—is a central arena of movement contestation. But it is exceptionally fraught terrain for radical political imagination due to its use as an instrument of social control, as well as its use to discipline and domesticate disruptive social movements. Legalism in left movement spaces has been the subject of sustained critique, including of its tendency to permeate movement strategy, which Dylan Riley calls the “juridification of the imagination.”

Further, the prevailing legal ethical rules prescribe particular roles for lawyers and clients and bar third parties from that relationship. Most notably, organizers—the intermediaries who help workers envision possible futures and foster and facilitate long-term dialogical relationships relationships—are blocked from having a formalized role in the relationship. As a result, in worker representation, with the decline of unions as intermediaries, lawyers are less likely to have the capacity or means to engage in long-term dialogical relationships with their clients. It is as if corporate lawyers could only have relationships with individual shareholders, but not the entity intermediaries sanctioned by the state to speak for the corporation. In a context in which our clients alone work or starve (or, in many cases, get to work or go to jail), the voices and visions of organizers enable prefigurative thinking in our collaborations.

These dominant legal practices, which undergirds a political economy skewed against the masses, is reflected and reproduced by existing forms of legal education. In the absence of critique and reformulation, the law school is not especially fertile ground on which to teach an abolitionist praxis that centers prefigurative thinking.

Shared Social Analysis

How do we overcome the constraints placed on our imaginative capacity through legal education and professional discipline? I suggest that a shared social analysis or “sociological imagination” amongst collaborators is essential. We must examine the root causes of the racialized extraction of migrant labor in capitalism and ask: how do we understand global historical structures of inequality and the ways in which they manifest in our current moment and in our immediate environment? A shared social analysis could elevate our utopian, prefigurative aspirations and abate the instrumentalization and domestication of legal practice. By understanding background distributions and structures of power, we gain the capacity to alter the work that we do with movements and challenge conventional approaches to public-interest representation. Oscillating between ideas and practice, between history and the present, fuels professional growth and disrupts complacency and acquiescence to an established economic and social order.

In the problem area on which we work in the WLO clinic, the study of the Black radical tradition and its animating critique of racial capitalism—as set forth by W.E.B. Du Bois, Neville Alexander, Cedric Robinson, Ruth Wilson Gilmore, and Robin D.G. Kelley—prompts new understanding and causes us to think structurally against the individuation of hegemonic neoliberal discourse. Racial capitalism compels us to confront intertwined conditions of capitalist expropriation and racial subordination, to track extraction. Legal scholars and commentators are just beginning to see how profit-seeking converged with white supremacy to radically expand immigration enforcement and detention in the years since 9/11. In labor law, state efforts to monitor and intervene in employer-employee relationships have been subverted by the fissuring of the workplace through outsourcing, franchising, and misclassification and by the long war on collective organizing and bargaining, with disproportionate impact on workers at the bottom of a pyramid of commerce and industry. These conditions have created an underclass of low-wage workers across borders: migrants and Indigenous peoples born or forced into the bottom segments of social hierarchies in varied national contexts. Legal and social movement responses that assume this sedimentation is merely the consequence of dysfunctional markets will not alter the underlying conditions.

More generally, our responses to the underlying structural conditions will fall short time after time if we as lawyers do not engage in social analysis of the problems on which we are working. For example, there are strong incentives for practitioners to work on either fee-generating class actions or, in public interest practice, on small individual cases to recover unpaid wages. The unpaid-wage cases offer a sense of accomplishment, if not attorneys’ fees as well, in cases in which we manage to get small but significant sums of money into the pockets of vulnerable workers and their families. However, in working on these cases, we accept the definition of the problem that we address to be wage theft, rather than racialized labor extraction. We may draft a report on wage theft and work with client groups to criminalize it, thereby expanding the carceral system in neighborhoods in which low-wage workers live and work, with far-reaching consequences. We may target companies that are especially bad actors. But we will not be working on the larger problem of racialized labor extraction. The autocracy of “private government” in the workplace—in Elizabeth Anderson’s words—will remain intact. We will not critically evaluate the broader context and seek opportunities to attack the interlocking regimes of public and private racialized violence to which low-wage workers are subject.

The pull to act on the basis of fixed knowledge is gravitational. But by engaging in ongoing social analysis, undergirded by critical historical knowledge and collaboration with social movement organizations, lawyers and law students can expand their understanding beyond dominant paradigms. Paraphrasing Gary Blasi, even with shared social analysis, we may not successfully identify and challenge the world-historical conditions that determine how workers fare in the low-wage economy. But without it, we do not stand a chance of overcoming the flood of individual unpaid wage claims and, with movement partners, successfully pivoting toward worker solidarity. If we practice solely in a wage theft frame, we are likely to channel the energy of our movement partners toward reforms that entrench employer autocracy and exploitation.

Documenting Prefiguration in the Undercommons

How does shared social analysis help workers and lawyers engage in prefigurative thinking? In the protest described at the outset of the post, our clients at the packing plant exercised solidarity and demonstrated what is possible, even under conditions of stress and threat. The workers saw that their well-being was incidental to their employers’ aim of maximum production. They worked to convince others to join them outside of the plant. They implicitly threatened ongoing production. They acted collectively to defend everyone in that plant. In doing so, they prefigured an economy centered on the needs of low-wage workers. They neither formed a union nor went on strike, but they did, in Davina Cooper’s terms, reimagine “their conditions of possibility”: they acted as if the rules and structures legitimizing solidarity, worker control of production, and community care already existed. The worker-leaders were then terminated for these acts.

The litigation documents both the costs imposed on the protagonists and the prefigurative nature of the protest. In our effort to tell the story of our clients’ courage against outsized obstacles, we engaged with them and the UFW organizers, lawyers, and paralegals in prefigurative thinking. How we construct that story makes meaning, beyond the alleged violations of the law. We seek to extend the workers’ contestation of the conditions of possibility, stopping the employers from using their power to terminate at-will employees and contracts to reconsolidate power relations in the low-wage sector. While in most cases the clinic will not be the space of Black Study to which Stefano Harney and Fred Moten refer when they describe the undercommons, we may yet create spaces in which “the work gets subverted.” As lawyers, we may yet aim to grow our collective capacity to exercise radical imagination, to recognize the co-constitutive relationship between material reality and ideology, and to stave off the threats of instrumentalization, commodification, and domestication.

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