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I want to build upon the foundation that Professor Lobel has painstakingly erected to illuminate a scholarly perspective that understands legal reform strategies as presenting a set of basic tradeoffs analogous to those presented by other techniques of social transformation. I do this by grounding Professor Lobel’s theoretical account in the practical reality of contemporary public interest advocacy. In particular, I contend that if we look to what lawyers are doing in practice, we see a more optimistic picture of legal activism than is generally presented in the literature, one in which lawyers and their allies are quite thoughtful in their power analysis of legal strategies and skillful in their navigation of the shoals of cooptation. |
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This practical vantage point allows us to reframe Professor Lobel’s analysis in two important ways. First, it challenges some of the assumptions underlying the critique of legal cooptation. Specifically, what we know about practice suggests that while some lawyers surely push legal activism at the expense of movement energy, there are many who defy that categorization. Moreover, while cooptation continues to be a salient concern, it appears less relevant to the current generation of public interest lawyers (at least those on the political left), whose experience is defined not by their strong position to influence policy at the cost of deradicalizing movements, but rather by their weak position to resist the policy agenda of a conservative central state. |
| Second, attention to practice complicates Professor Lobel’s story about the turn to “extralegal” activism — activism “outside” the law. As a descriptive matter, it is not clear that the activities Professor Lobel presents can accurately be viewed as operating in an extralegal sphere. In addition, a broader survey of contemporary practice reveals a response to the critique of legal cooptation that is not trapped “outside” the law, as Professor Lobel argues, but rather is sophisticated in operating across “legal” and “non-legal” fields. It is in this sense that current practice has outstripped Professor Lobel’s critique of extralegalism, embracing a version of what I call constrained legalism, which strategically deploys law in a way that is neither utopian in its hopes for legal reform nor rejectionist in its dismissal of legal avenues of transformation.
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Suggested citation: Scott L. Cummings, Critical Legal Consciousness in Action, 120 Harv. L. Rev. F. 39 (2007), http://www.harvardlawreview.org/forum/issues/120/feb07/cummings.pdf
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