A reflection written by Jahnavi Jagannath
Introduction and Author’s Reflection
Legal education in the United States is inextricable from the history of the American legal system, an institution that was designed to create a cycle of upholding and solidifying white supremacy in the United States. In law school, I am learning the nuances of legal history but also the overarching ways in which the legal system has failed people repeatedly, and the vast disparities in power that are perpetuated by the system as it is now. The law (and law enforcement) was created to protect and maintain power, racial hierarchy, and property, often working in the favor of people who are already privileged by the system. I was hoping to find ways to situate my own role as a future lawyer with values of universal access to care and safety, and found community in other students working to counteract these injustices through organizations like NYU’s Ending the Prison Industrial Complex, Unlock The Bar, and legal observer training through the National Lawyers’ Guild. The concept of critical legal empowerment struck a resonant chord when I first learned about it – shifting power away from lawyers and towards communities to expand access to justice.
The Bernstein Institute for Human Rights and the NYU Law Review co-hosted a symposium on Critical Legal Empowerment and community-built justice in February of 2022, organizing a series of collaborative community action workshops on the topics of immigration, the criminal legal system, environmental justice, and civil legal services. Participants ranged from lawyers to service providers and community organizers, and were engaged in many different fields of work as well as varied regional and country contexts. This blog reflects some topics and conversations that were shared during the civil legal (in)justice workshops, facilitated by Sukti Dhital, the Bernstein Institute’s Executive Director; Ariadna Godreau Aubert, founder and Executive Director of partner organization Ayuda Legal Puerto Rico (ALPR), Verónica González-Rodríguez, community lawyer and advocate at ALPR; Matthew Burnett, Senior Program Officer for Access to Justice at the American Bar Foundation; and myself, a first year law student with a professional background in criminal legal system research.
Legal empowerment is an approach to lawyering that works to move power from lawyers to communities, focusing on making legal support available to all and integrating social movement work and legal support. Civil legal services encompass a broad range of issues – healthcare, housing assistance and eviction prevention, access to government services, disaster relief and climate justice, employment, education, immigration, and more. However, these services are often not available to those who need them most. This blog outlines some overarching topics discussed during the CAW workshops, a description of ALPR, an overview of conversations that happened during the workshops, and personal reflections.
Paradox of “Representation”
The workshops highlighted a paradox central to legal representation: people require representation to protect their legal rights, but that representation is often not available to those who most need the support. Theoretically, the legal system should serve communities at large, and there should be no need for “community legal empowerment”– the law should be empowering of community on its own, reflecting shared community norms and goals. One participant characterized this problem: “why is the voice of individual people suppressed in their own cases, why are we fighting against the state if the state is supposed to be representing us?” Courtroom decisions do not only affect the person in the case: as one participant shared, “it’s the families, it’s the children, there are ripple effects.” Reliance on a “justice” system that does not serve a vast majority of people (especially people who are Black and Brown, undocumented, queer, low income, unhoused, and any intersection of those descriptors) more deeply entrenches inequities.
This reliance on the legal system is predicated upon an idea of “protection” by the law, but this protection is often not accessible without high-quality legal representation and thus becomes inaccessible to people at large. Our facilitator Matthew shared that “We pay taxes to support the civil justice system, electing representatives to create laws that we do not meaningfully have access to without lawyers – all of our fundamental sense of what it is to be under the protection of law is undermined by the idea that we have to go through a lawyer in order to access justice in this country.”
Wide-scale recognition of this inherent paradox – in our continued use of a legal system that we all pay into through our taxes, but that only protects a few– could incite collective action to hold courts accountable and build alternate systems of safety and justice. It can also provide added fuel to the growth of legal empowerment, distributing power, resources, and knowledge out of the entrenched legal system and into community growth. Positive growth could manifest both in working to bridge the gap between what the law “should” be and could be while proactively pushing for alternate structures, like different types of legal empowerment work that were discussed in the CAWs.
Legal Empowerment and Civil Legal Justice
Legal empowerment in civil legal services can take multiple forms. While it may seem like a daunting goal, there are many practical ways we
can shift power. Five overarching approaches are community paralegals, community-driven litigation, accompaniment, popular education, and alternative imaginative structures – these approaches, along with many others, operate on a continuum, informing and flowing into one another.
Community paralegals / navigators are community members who are trained on basic legal skills, laws, and rights to bridge the gap between legal professionals and people they serve. Instead of assisting lawyers and engaging with the legal system, community paralegals work to represent the interests of people who are experiencing the legal system.
Community-driven litigation blurs the line between the role of lawyers and the role of organizers, emphasizing the importance of advocacy both through and outside of the law. Multiple sessions of our workshop touched on the importance of civil disobedience and organizing outside of legal work in order to build community with non-lawyers and radical changemakers.
Accompaniment involves a community member or trained member of an organization accompanying a client into the courtroom, and providing solidarity and presence, collecting data about court outcomes and processes, and sharing that data widely while building a network. It can be used as an organizing strategy, and has been shown to influence the outcome of court decisions, giving more agency and respect to those facing the legal system. To have a room full of people on your side in a courthouse can dramatically change a person’s experience of the law, providing care and solidarity within a system that is often dehumanizing. During the first workshop of the symposium, a participant named Dr. Monique Tate, Chief Blue Feather, discussed the value of accompaniment, sharing their experience in walking alongside people who have been abused by the legal system, and bearing witness to the drawn-out length of time, uncertainty, and violence that families are often plunged into by a court case or interaction with the law. In contexts in which the system tends to fail those at the margins, an advocate collecting data that reflects lived reality – making sure people are being seen and heard and accompanied – has a huge impact. How do we train lawyers to be people who see and hear others? How can people collect and share data about the ways that the law works or fails people? Ongoing work around accompaniment works to answer these questions and build capacity.
Popular education / know your rights trainings are familiar to most, and have been an important strategy in organizing work throughout history. They continue to play a role in building power through community knowledge and means, sharing information about rights, legal processes, and legal knowledge that can be useful for communities who are unduly targeted by law enforcement. This information can often be shared using language and ways of learning that are more practical and grounded than traditional “legalese,” ensuring that when legal services are made “accessible,” they are actually accessible both through availability but also through language and understanding.
Lastly, imagining and building alternative structures can be a powerful tool for change. Grassroots frameworks for justice and community-oriented means to safety can be difficult to imagine, but are already in existence, being cultivated through worker-led collaboratives, unions, and organizations. One such organization was a collaborator in bringing forward this symposium – Ayuda Legal Puerto Rico.
Ayuda Legal Puerto Rico
Ayuda Legal Puerto Rico (ALPR) works to socialize legal education and promote legal empowerment in communities. ALPR’s staff do not only fulfill the role of traditional lawyers and legal advocates, but also work to transform systems that perpetuate harm. Their slogan is “Knowing your rights is power.” They seek to upend the core of traditional legal structures in which lawyers dominate legal information, requiring people to pay a lawyer to access basic legal information while the system oppresses, detains, and incarcerates people based on an assumption that all have a basic knowledge of law. ALPR supports other organizations and movements engaging in purposeful imagination and strategy, and develops technology to socialize legal tools. They advocate to change the narrative about tenants’ rights, foreclosure, and disaster relief. Ariadna Godreau Aubert, ALPR’s founder and ED, discussed their philosophy of affirmative work which is, “not grounded only in ‘no’s’, like “do not evict people”, but also grounded in ‘yes’ – we are always asking ourselves and the people that we accompany – what is our “yes?” and we feel that is very important.” ALPR also organizes hotlines to provide legal advice and Know Your Rights workshops, providing legal information for community members.
One of their biggest programs is community lawyering, a strategy to empower communities with changemaking power to democratize access to legal support. This often begins by talking to community members to see how they could use information and how ALPR could accompany them in the process of learning and peer-to-peer education. ALPR works to target housing, land, and climate injustice in a disaster recovery context after Hurricane Maria in Puerto Rico. They also work closely with historically Black communities, communities vulnerable to coastal erosion and flooding, and those who do not have formal title to their home.
ALPR has an ongoing project in Loíza, an Afro-Puerto Rican municipality, where the staff learn and train alongside community members and existing organizing leaders. These collaborations help the community write record requests, participate in public hearings, claim individual or collective formal title to their land, and influence government flood mitigation efforts. ALPR serves as a partner, providing legal assistance and education when necessary, and providing a connection between the goals of the community and inaccessible legal spaces. These efforts have been fruitful, as well as challenging. Time management, maintaining focus on priority issues given time and resource constraints, and ongoing growth in capacity building are ALPR and their community partner’s pointed areas for next steps and growth. A discussion about ALPR’s work led into participant conversations on their own work and challenges they faced, support they valued, and other reflections.
Areas of Conversation
The workshops during the CLE Symposium provided a vibrant and interesting space for reflection, moving through many different topic areas and incorporating voices of participants from different fields, different countries, and varied experiences. Some of the threads of conversation are captured here, reflected in conjunction with additional data and context.
Though criminal cases provide a supposed “right to counsel,” civil cases do not ensure such a right. Counsel is no less important in civil cases, though, as shown clearly through many examples, including evaluations of housing court (in which tenants with lawyers were less likely to be subjected to eviction and possessory judgments, and faced smaller monetary charges), and immigration court (immigrants with counsel were shown to be five times more likely to win their cases than those without counsel). Despite that, many people end up going without counsel – even though there are widespread civil Legal Aid providers, the US Department of Justice reports that only 20% of people in the US qualify for this aid, with aid being prohibitively restricted only to those who are a U.S. citizen and making $22,887 or less for a two-person household. From there, of those who qualify and seek out legal services, not even half are able to receive the legal help they need. Even when services are available, they are inaccessible and opaque, especially for people without internet or non-English speakers. There is a widespread movement for increased access to representation within the field of civil justice, pushing to ensure that all have access to quality counsel. Participants discussed here the need for more integration of civil legal services – legal aid lawyers are often siloed into their specialties, and are not able to provide wraparound care or work with other practitioners in order to address clients’ needs that bleed into other areas. One participant shared that “our work is so cross-cutting, but we are separated into our own lanes, and that definitely limits us.” Better connection between people providing legal aid, as well as between lawyers and other service providers, could help clients’ needs that fall into multiple areas of life. While pushing for universal access to representation will not solve systemic issues and could potentially contribute to legitimization of an entrenched and violent system, access to legal aid and an understanding of how to receive it is a basic necessity and an urgent need.
Because of this urgency, access to counsel tends to dominate popular conceptions of civil justice within legal circles. Justice, however, is a much broader concept than can be achieved within a courtroom. In order to truly provide assistance for someone going through a situation that involves the civil legal system, their holistic needs must be seen instead of centering only legal aid to solve problems. Though often framed as “legal” issues, these issues are human problems being experienced by people, families, and communities. One participant said, “bringing civil legal work to life is important. When we talk about legal reform and the lack of lawyers, it’s not just personal injury cases – it is about real, everyday livelihoods – people’s housing, family, kids, civil rights.” These lived experiences are not cleanly applicable to a black and white legal system, and viewing them through the lens of legality can disempower the wide and varied avenues to non-legal support that exist, reinforcing that only lawyers can provide assistance. As Ariadna said, “Often, when you get lawyers out of the question, the solution is simplified.”
Even with the inclusion of lawyers as a component of problem solving, the solution to a “civil legal” issue goes far beyond the courtroom and extends into a need for community and love, consistent and safe social services, and a web of care. For example, if a person is going through an immigration case and being held in immigration detention, they need legal services urgently, and likely need bail if given the opportunity. But they also may need childcare, emotional support and help while working with their lawyer, and advocates to push for the closure of detention facilities altogether.
While communities can be crucial parts of solving “legal” problems, often these problems are caused in the first place by government investment into systems of racialized punishment instead of systems of care, creating a cyclical connection between the civil and criminal legal system. One participant articulated that “people are well aware of how “broken” the criminal legal system is, but not the civil legal system.” Civil legal situations can initiate interaction with the criminal system – for example, through calling the police due to a domestic dispute, or being arrested due to being unhoused stemming from a recent eviction. The need for civil legal services is caused by underinvestment in housing, safety, healthcare, food security, and overall economic security and wellness. This underinvestment, historically impacting Black and Indigenous people as well as those who are low-income, undocumented, queer, and / or disabled, is strongly correlated to an overinvestment into the carceral system. Many US cities spend almost as much on police and prisons as they do on housing, healthcare, childcare, and other social services combined.
The legal system throughout history has perpetuated remarkable harm and left lasting trauma upon many individuals and communities. When working with people who have historically been written out of the law’s benefits, lawyers must acknowledge a justified lack of trust and recognize the limitations of legal work without trust. Trust can be built both by deemphasizing the singularity of a legal relationship (e.g. perhaps a lawyer-client meeting could also involve a community advocate) as well as by acknowledging that any negative associations with the law could be valid, that previous harm done was important and not insignificant. To acknowledge that the law has harmed people in the past and was created to harm categorical groups of people, could validate people’s lived experiences. Pushing for power to flow to people who have been failed by the law allows for those with lived experience and expertise on the law’s gaps to drive how “legal” problems can be worked through.
Participants did a power mapping exercise in the third workshop, during which we looked at barriers to address, actors to pressure, tactics to use, and untapped resources. Within actors to pressure, some participants mentioned the Legal Services Corporation. The Legal Services Corporation (LSC) is a privately managed, publicly funded entity that serves as the largest funder of civil legal aid for low-income Americans, receiving almost $500 million per year from Congress. However, the LSC is limited by statute to provide funds to certain groups of people or cases, prohibiting legal services for people seeking abortion access, those not technically in “poverty,” and those who are undocumented. While concurrently working to ensure that legal education is widespread and legal services are not the ends of support provided, those in the legal field can lobby for more and varied protections for those seeking support from the LSC.
Our facilitator Matthew also discussed state regulatory progress towards legal empowerment; while power in formal legal institutions is often restricted to those who have legal training, there are advocates who have accomplished reforms that allow nonlawyer practice within certain legal areas and licensing programs for paraprofessionals and nonlawyer aid services. Additional regulation to ensure that lawyers are able to, and do, engage in necessary pro bono services could be a positive step forward.
Participants and facilitators expressed the importance of lawyers using language that is accessible and humanizing, drawing people and partners in. Lawyers and practitioners use jargon and language that is difficult to understand. At its worst, this language can sanitize, retraumatize and exploit peoples’ narratives. Legal empowerment can help language reflect shifts in power by allowing lawyers and community members to work in collaboration, instead of drawing a distinction between those who hold the power of the law and those who are “helped.”
When thinking through untapped resources, participants emphasized the importance of working within existing structures of organizing, with groups who have platforms and members: worker-led coalitions, unions, and grassroots organizations. We also discussed the value in partnership with organizers and movement groups, working for environmental justice, prison and police abolition, Black liberation, Indigenous land rights and rematriation, trans and queer justice, and tenants’ rights. Our facilitator Matthew shared, “more activity outside the “guild” will generate a different narrative, not just constrained by legal rules, opening ourselves to more transparent, and ultimately impactful, work.” While the act of radical organizing seems, and often is, contrary to working within the law, it can benefit all to share knowledge that can help movement groups navigate the oppressive American legal system while building connections among people who are imagining ecosystems of care outside of the law. As one participant shared, “a law degree can feel limiting when I’m thinking and strategizing to support communities. I want to shed the ways of thinking like a lawyer and start thinking more holistically.” Legal narratives driven by those who are unconstrained by statutes and rules limiting lawyers can often be more pragmatic and efficacious, making room for direct action and civil disobedience in situations that those within the practice of the law often do not.
I am developing an understanding of law as a tool instead of a destination. Rather than trusting in the legal system to address the needs and harms communities experience, I am investing in people to build power and working to create safety and care for myself and others. This conception of law requires creative thought, which I have found in abundance in my peers and friends, but scarcely within my doctrinal classes, black-letter law foundational to the American legal system. I felt surprised and affirmed by participants, seasoned lawyers who shared that their imagination also felt stifled by law school and the practice of law, limited to thinking in a “legal” way about problems that required innovative and non-legal solutions. I was grateful to learn that many lawyers continue to be thoughtful and critical of the practice of law and are able to use their legal education as a tool to work towards important and life-affirming goals. Perhaps legal education can grow and evolve to make room for these goals – perhaps it will look different if it was shared more broadly, more equitably.
I feel torn at times about whether legal education is the path to any positive forward movement, knowing that it can be difficult to use tools within an institution to break down that institution. Legal empowerment seems to be broadening “legal” power, but I wonder how to balance democratizing knowledge about the law and courts while also working to undermine the power of the courts. Is the reason the legal system is inherently oppressive because it’s not open to all, or because of its historical origins in the US as a way to maintain white supremacy? Can it be separated from its origins and used for something good, like interpersonal accountability, safety, sharing resources and care?
The process of legal empowerment requires a great deal of imagination, and the structure, intentionality, and case studies of the CLE workshops helped to create space for this dreaming. While it might be difficult to imagine a system of legal work that is radically different from the one we have now, that imagination is crucial. It is in large part the responsibility of lawyers and those who hold institutional power to work towards building a world where people are entrusted with tools and resources to support their neighbors and community members, where the law does not serve as a stand-in for genuine problem solving, where people are given the tools to be individual people in relationship with one another instead of numbers on a case docket. Critical legal empowerment offers one ongoing, tangible way to practice that radical imagination.