{"id":1772,"date":"2015-04-23T22:20:42","date_gmt":"2015-04-24T02:20:42","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1772"},"modified":"2015-04-23T22:20:42","modified_gmt":"2015-04-24T02:20:42","slug":"reclaiming-courtroom-space-for-the-community","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2015\/04\/23\/reclaiming-courtroom-space-for-the-community\/","title":{"rendered":"Reclaiming Courtroom Space for the Community"},"content":{"rendered":"

By Michael Grinthal<\/a>*<\/a><\/em><\/p>\n

If in the last 45 years you have read a law review article about, attended a conference on, or taken a course about lawyering for social change, then you\u2019ve come across the phrase \u201ccommunity lawyering\u201d (or “rebellious lawyering,”<\/a> or \u201ccritical lawyering,\u201d[1]<\/a> or “law and organizing”<\/a>). The meaning of community lawyering can sometimes seem difficult to pin down \u2013 after all, it\u2019s difficult to summarize 45 years of unruly critical reflection on everyday legal practice, and many of us deliberately maintain what Saul Alinsky called \u201ca bit of a blurred vision of a better world.\u201d[2]<\/a>\u00a0 Generally when we talk about community lawyering, we\u2019re talking about lawyering practices that, wherever possible, re-center power and accountability away from courtroom space and into community space \u2013 neighborhoods, families, people\u2019s everyday lives.[3]<\/a> \u00a0These practices might include advising groups of tenants in collectively confronting their landlords; helping an organization of disabled people identify and draft legislative proposals; drawing up incorporation papers for a community health clinic; or training welfare recipients to advocate for themselves in fair hearings.<\/p>\n

This fundamental opposition between \u201ccourtroom\u201d and \u201ccommunity\u201d is lodged at the heart of the community lawyering discourse.\u00a0 Indeed, when we talk about community lawyering, we often start by criticizing the way that the traditional impact lawyering takes communities\u2019 struggles away from them and into the restricted space of the courts and legal system, where poor people lose access and control. \u00a0While this is a legitimate and necessary criticism of a certain historically-privileged legal strategy, the courtroom\/community opposition buys into the same fantasy image of the legal system that it claims to critique: the court as a rarified space in which complex legal arguments are weighed by specialists – federal court, appellate court, oral arguments, briefs and sur-replies.\u00a0 But in reality, we know that that is not what our legal system looks like to the millions of poor people who struggle with it every day.<\/p>\n

In fact, we know that court-space, far from being a distant professional realm, is an everyday part of poor people\u2019s lives and communities.\u00a0 That reality most recently seized the public imagination with the release of the Department of Justice\u2019s Ferguson investigation, which reported that by late 2014 there were 50,000 non-traffic cases pending in Ferguson Municipal Court<\/a> \u2013 more than two cases for each of the city\u2019s 21,000 residents. When an entire community passes through a court, court-space is no longer opposed to community space, but has colonized it.<\/p>\n

Poor people\u2019s courts – criminal court, housing court, family court, debt court, warrant court, small claims court – have metastasized and taken over entire categories of relationships that we used to call \u201ccommunity.\u201d\u00a0 In 2013, 274,447 households (more than half a million people) passed through the New York City Housing Court<\/a>. Housing Court cases are so common in New York that many tenants only interact with their landlords through legal proceedings.\u00a0 They\u2019ve never met their landlords, but are on a first-name basis with their landlords\u2019 lawyers.\u00a0 Across the U.S., thousands of families sit down with a Family Court judge more often than they are allowed to sit down to dinner with each other.<\/p>\n

When entire communities are colonized by legal systems, court-space becomes a space in which community is struggling to exist.\u00a0 And lawyers who have been implored to leave the courts and \u201cgo to the community\u201d cannot help but notice that the community is already sitting all around them in the overcrowded benches.<\/p>\n

We can no longer pretend that critical reflection on our roles as lawyers in these communities\u2019 struggles means simply resisting the temptation to go to court. Instead, we have to become part of a struggle to reclaim and re-envision poor people\u2019s courts.<\/p>\n

What does this struggle look like?\u00a0 What does it mean to fight for and with communities inside of courts?\u00a0 There are many possible strategies and tactics to be imagined.\u00a0 Litigation in poor people\u2019s courts can be a way for community members to disempower the courts or seize their resources for community ends.\u00a0 What can lawyers do?\u00a0 Bring groups of tenants to Housing Court and turn a settlement conference into an accountability session<\/a>. Address arguments to the courtroom audience rather than the judge<\/a>. Hold trainings in the hallways.\u00a0 Train \u201cPeople\u2019s Inspectors\u201d to sit in the front rows and scrutinize judicial practices.\u00a0 Shut down legal proceedings entirely with song and theater<\/a>.<\/p>\n

At the same time, community organizers can no longer stop their work at the courthouse doors.\u00a0 Typically, organizers call in the lawyers as soon as community leaders get court papers.\u00a0 But organizers have to get over the perception (internalized from lawyers, whether they admit it or not) that courthouses are magical no-go areas and recognize that courts are institutions like any other, with power maps, funding streams, resource battles, and self-interests. \u00a0(http:\/\/www.brooklynrail.org\/2012\/08\/local\/court-of-no-return<\/a>) \u00a0Organizers should treat courts the way they already know how to treat welfare offices, city council hearing rooms, departments of public works: as spaces for recruitment, leadership development, action, and negotiation.\u00a0 Organizers and lawyers can work together to demystify courts to the people who are living a significant part of their lives inside them.<\/p>\n

For every prosecutor, landlord\u2019s lawyer, or child services enforcer in poor peoples\u2019 courts, there are 1000 poor people.\u00a0 The courthouses are already mass meetings of the poor. \u00a0How as lawyers will we help them take the floor?<\/p>\n

 <\/p>\n

<\/a>*<\/a>Michael Grinthal is a supervising attorney at MFY Legal Services<\/a>.<\/p>\n

[1]<\/a> William H. Simon, Visions of Practice in Legal Thought<\/em>, 36 Stan. L. Rev. 469, 475\u201376 (1984).<\/p>\n

[2]<\/a> Saul Alinsky, Rules for Radicals 75 (1971).<\/p>\n

[3]<\/a> Some other definitions: \u201cCommunity Lawyering stresses the importance of thinking beyond litigation (while retaining litigation as a vital tool) in addressing the kinds of structural problems low-income communities face.\u201d http:\/\/www.povertylaw.org\/training\/courses\/community-lawyering<\/a>; \u201cThis approach focuses on engaging lawyers to de-emphasize litigation as the primary tool for advancing social justice. Instead, community law- yering encourages lawyers to critically and creatively examine non- traditional forms of advocacy such as organizing and other grassroots actions as a way of addressing the legal and non-legal problems of their clients.\u201d http:\/\/www.nyujlpp.org\/wp-content\/uploads\/sites\/89\/2012\/11\/Rose-Cuison-Villazor-Community-Lawyering-An-Approach-to-Addressing-Inequalities-in-Access-to-Health-Care-for-Poor-of-Color-and-Immigrant-Communities.pdf<\/a> at 37; \u201cIn this idea-what I call the rebellious idea of lawyering against subordination-lawyers must know how to work with (not just on behalf of) women, low-income people, people of color, gays and lesbians, the disabled, and the elderly. \u00a0They must know how to collaborate with other professional and lay allies rather than ignoring the help that these other problem-solvers may provide in a given situation. They must understand how to educate those with whom they work, particularly about law and professional lawyering, and, at the same time, they must open themselves up to being educated by all those with whom they come in contact, particularly about the traditions and experiences of life on the bottom and at the margins.\u201d Gerald Lopez, Rebellious Lawyering: One Chicano\u2019s Vision of Progressive Law Practice 37 (1992).<\/p>\n","protected":false},"excerpt":{"rendered":"

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