Critical Legal Consciousness in Action

Scott L. Cummings

Responding to Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 Harv. L. Rev. 937 (2007)

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.

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.

120 Harv. L. Rev. F. 62 (2007) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

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