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Lawyering for Social Change: What’s a Lawyer to Do?
This article analyzes two questions that are raised by Professor Yamamoto's provocative article. Part I argues that any significant transformation of the social structure of United States society is far more likely to occur through mass political movements than through litigation. Consequently, advocates of social change, especially those trained in law, should not expect too much reform from the courtrooms. They instead should consider how traditional legal action might complement and encourage-not replace-community activism and political involvement. Put simply, an exclusive focus on litigation will not accomplish fully the desired objective. Part II contends that attorneys' ethical duties to their clients limit lawyers' ability to shape the world in the ways they see fit. The constraints increase considerably after the attorney agrees to represent the client. At that point, she must zealously pursue the case in a way that furthers the client's best interests. The attorney primarily must represent the client, although she does have control over how to conduct that representation and may be able to shape the client's case in important ways. Combining these two points, I contend that the potential for social change through litigation is limited, and that the discretion of attorneys to promote change through traditional legal remedies is similarly constrained. Consequently, visionaries advocating social change must look well beyond these limited horizons.Expert Report of Thomas J. Sugrue
At the end of the twentieth century, the United States is a remarkably diverse society. It grows more diverse by the day, transformed by an enormous influx of immigrants from Latin America, the Caribbean, Africa, and Asia. In an increasingly global economy, Americans are coming into contact with others of different cultures to an extent seen only in times of world war. Yet amidst this diversity remains great division. When the young black academic W.E.B. DuBois looked out onto America in 1903, he memorably proclaimed that "the problem of the twentieth century is the problem of the color line." Over the last one hundred years, that color line has shifted but not disappeared. The brutal regime of Jim Crow and lynching was vanquished by a remarkable grassroots movement for racial equality and civil rights. Overt expressions of racism are less common than they were a half century ago. Many nonwhite Americans, among them African Americans, Hispanics, and Native Americans, are better off than their forbears. Despite all of the gains of the past century, however, the burden of history still weighs heavily. Color lines still divide and separate Americans. Many Americans have managed diversity by avoiding it-by retreating into separate communities walled off by ignorance and distrust. In American public and private life, there are far too few opportunities to cross racial and ethnic barriers, to understand and appreciate differences, to learn from diversity rather than use it as an excuse for reproach and recrimination.Expert Report of Eric Foner
Race has been a crucial line of division in American society since the settlement of the American colonies in the beginning of the 17th century. It remains so today. While the American understanding of the concept of "race" has changed over time, the history of African-Americans provides a useful template for understanding the history of race relations. The black experience has affected how other racial minorities have been treated in our history, and illuminates the ways in which America's white majority has viewed racial difference.Expert Report of Claude M. Steele
Report based on 25-year period of research in the areas of social psychology, the social psychology of race and race relations, and the effects of race on standardized test performance.Beyond the Rhetoric of “Dirty Laundry”: Examining the Value of Internal Criticism Within Progressive Social Movements and Oppressed Communities
Part I of this Article discusses examples of resistance to internal criticism within progressive social movements in order to demonstrate the extent to which such opposition operates as a barrier to constructive dissent. Part II argues that resistance to internal criticism may often result from the embrace of heterosexism, patriarchy, and racism within oppressed communities and among progressive intellectuals, and that any remaining explanations for such resistance are outweighed by the value of internal criticism to progressive theory and politics. Part III offers suggestions-to both internal critics and to the objects of their critiques-for minimizing the potentially negative effects of internal criticism and for advancing a more inclusive conceptualization of justice.Law, Literature, and Contract: An Essay in Realism
In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to lessen their formalistic nature to make contract rules more effective. Accordingly, the Article establishes that a law and literature analysis not only exposes flaws in the contract doctrine but demonstrates the need for a more flexible application of contract rules in cases involving race and gender disparity. Arguing that prejudicial behavior must be addressed and pre-empted in order to prevent its harmful effects in the formation of contracts, the Author again uses literature to develop a framework to remedy the biased conduct that leads to inequalities in contract formation.Asian America’s Greatest Hits: A Review of Angelo Ancheta’s Race, Rights, and the Asian American Experience
A review of Race, Rights, and the Asian American Experience by Angelo N. Ancheta.Striking the Rock: Confronting Gender Equality in South Africa
This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime. The author argues that, although South African women have benefited from the global feminist endeavor, they have adopted the shape and substance of women's rights to accommodate conditions peculiar to South Africa. The Article concludes that this balancing of respect for indigenous culture and the ultimate goal of eradication of all forms of sexism provides the best means for women in South Africa to make progress in their quest for equal status in that society.Can Money Whiten? Exploring Race Practice in Colonial Venezuela and Its Implications for Contemporary Race Discourse
The Gracias al Sacar, a fascinating and seemingly inconceivable practice in eighteenth century colonial Venezuela, allowed certain individuals of mixed Black and White ancestry to purchase "Whiteness" from their King. The author exposes the irony of this system, developed in a society obsessed with "natural" ordering that labeled individuals according to their precise racial ancestry. While recognizing that the Gracias al Sacar provided opportunities for advancement and an avenue for material and social struggle, the author argues that it also justified the persistence of racial hierarchy. The Article concludes that the Gracias al Sacar, along with their present-day implications, undermine an essentialist view of race, revealing the negotiability of race status and its dependence on social and material normsListen
In a traditional law school setting, experiences of students of color, especially Native Americans, are often buried by the discourse of the dominant culture. This piece, a non-traditional work using elements of prose, lyric, monologue, and poetry, weaves strands of legal discourse, commentary, and autobiography into a critical narrative of the experience of legal education from an outsider law student's perspective. The author, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, recounts these vignettes in a voice infused with the history and traditions of Native American oral storytelling.
