Abstract
Up Against the Law is a sprawling book on the role of radical lawyers in the American social movements of the 1960s and 1970s. Focusing primarily (but not exclusively) on the activities of lawyers associated with the National Lawyers Guild, Luca Falciola charts radical lawyers’ involvement in the protests, strikes, demonstrations, uprisings, takeovers, destructions of property, and hostage-taking situations effected by self-styled revolutionaries, dissidents, students, workers, soldiers, prisoners, women, and racial, sexual, and national minorities. Thanks to radical lawyers’ efforts, the state sometimes retreated; judges occasionally tossed prosecutions out of court; and the powerful were frequently compelled to pay attention to the appalling conditions faced by the country’s marginalized populations. This does not mean that success was ever assured, unequivocal, or lasting. All too often, and independently of the pressures imposed by the state’s increasingly sophisticated and intrusive repressive technologies, social movements and their legal spokespersons foundered, beset by confusion, cross-purposes, betrayal, corruption, and tragedy.
Falciola is entirely successful in foregrounding something that too many scholars of the 1960s and 1970s social movements have ignored: the role that lawyers played in an era thought to be about counter-cultural, anti-establishment, nihilistic, and even violent revolt. But a book on radical lawyers “and” social movements begs a question: how did law affect social movements and vice versa? What difference did one make vis-à-vis the other?
Falciola has a great deal to say about radical social movements’ impact on lawyers. His account intersects in fascinating ways with existing explorations of the history of twentieth-century American legal thought.
In a complex development that extends from the late nineteenth century into the post-World War II decades, American law went from being oriented around substantive notions of justice, morality, and rights to being oriented around procedural ones. The resulting proceduralization of law—which converted lawyers into “technicians” (a word that recurs often in midcentury lawyers’ writings)—was crucial in enabling the rise of a bureaucratic-administrative state. It reached its epitome with the rise of the Legal Process school in the 1950s, a school of thought that held sway in American law schools well into the 1970s.
Legal Process scholars systematically reduced law to a set of procedures and processes which, if followed, were deemed to assure the correctness of results. In an important sense, the Warren Court’s famed “rights revolution” was a revolution of procedures and processes, a fixing of procedures in realms ranging from criminal law to democracy itself. It is the shadow of law’s proceduralization—and the way it rendered lawyers’ “technicians,” procedural tinkerers of a sort—that I detect in Falciola’s rendering of the impact of radical social movements on lawyers. For the lawyers that Falciola studies were deeply unsatisfied with their assigned role as purveyors of disenchanted procedural techniques. They sought to reenchant themselves—and perhaps to reenchant law itself—through their clients.
The reader of Up Against the Law cannot help but be struck by Falciola’s repeated depictions of radical lawyers’ deep fascination with—indeed, profound longing for—their clients. Radical clients frequently represented to their lawyers precisely what those lawyers perceived as their own lack qua lawyers: strong commitments, stirring notions of justice and morality, deeply rooted ideas about community and faith.
Thus, we are told that Guild lawyers were “enchanted” by “‘the spirit and total commitment of. .. farmworkers’” (225). Much the same could be said of Guild lawyers’ encounter with Civil Rights activists. For their part, radical law students “stunned” Guild lawyers with “their unceremonious style, overconfident attitude, and radical statements. ..” (70). Lawyers’ admiration of their clients’ political commitments easily shaded off into aesthetic appreciation. Falciola’s descriptions of African American radicals are especially noteworthy in this regard. “[Black Panthers’] boldness and idealism, coupled with their leather jackets, black berets, sunglasses, and afro hairstyles, mesmerized scores of young radicals. White activists were electrified too. ..” (55). “[Eldridge] Cleaver’s sharp prose, ‘savage irony,’ and ‘sexual mysticism’ impressed everybody. ..” (81). Angela Davis was possessed of an “‘imperious beauty,’” which contributed to the success of her case (190).
As their clients became objects of desire, radical lawyers lived vicariously through them. A Brooklyn Guild lawyer observed: “We didn’t have the balls to go underground but those who did they were heroes. You can’t believe the excitement, the romance, the intrigue” (84). The celebrated radical lawyer William Kunstler thrilled to “‘the cloak-and-dagger aspects of meeting clandestinely with people the government was eager to find and prosecute’” (85).
Not surprisingly, then, when they did not actually fall in love with their clients, radical lawyers sought to become their clients, to dissolve themselves into their clients. This is a major theme in Up Against the Law. Guild lawyers, Falciola tells us, “did not make any effort to stay aloof; rather, they amalgamated with the communities. For example, they gave sermons in churches and participated in demonstrations” (35). They self-consciously adopted the styles of their clients. When students protested that they could not afford tickets to the Guild’s gala dinner, William Kunstler “joined them, and, after making an incendiary speech and publicly burning his ticket, was carried into the dining hall on students’ shoulders” (72). “Photogenic and well spoken,” Kunstler was “conscious of his media appeal and eagerly played with it. He let his hair grow, wore casual shirts, and began living night and day with the defendants. Reporters spotted him eating, drinking, smoking, dancing, and demonstrating with them” (99). He wore his contempt convictions as a “badge of honor” (99). More and more radical lawyers “began dressing casually, keeping their hair long, and growing beards” (86).
This lawyerly dissolution into the identities of their clients’ bespeaks a profound dissatisfaction with their assigned professional roles as procedural “technicians.” Thus, Kenneth Cloke (who served as a liaison between the Guild and social movements) hated law school, and described “‘the movement’” as his first priority and the law as “‘really secondary’” (68). A Guild lawyer from Boston observed: “I live with the people I represent. I represent very few people who are not friends, to a greater or lesser degree. I participate in their activities. My life style is different because I don’t think of myself as a lawyer at all. I am a human being.. .. I have decided that I want to practice law less and less and focus more and more on living the things that I believe” (80). The radical lawyer Fay Stender stated in 1970: “My identity is being almost antiprofessional and in some sort of way that of a political prisoner. .. . I don’t use the expression ‘my clients’ anymore. That expression is going out of my vocabulary and is certainly going out of my thinking. I feel that they are comrades” (82).
In the first instance, lawyers’ becoming their clients transformed their own practices: fewer hierarchical relationships with clients, greater accommodations of clients as co-directors of litigation strategies, efforts to democratize law offices and create lawyers’ collectives. More important, it transformed their use of the courtroom. They adopted highly confrontational styles, deploying the courtroom much as their clients might to highlight questions of social justice that often had little to do with the specific legal questions at hand and to make cases “untriable” (101). Such “political” (and non-lawyerly) uses of the law were undoubtedly effective, but principally insofar as they drew media attention to oppressive situations and pushed for broader political change, which resulted in reform (if rarely in transformative change). And, like the social movements that they mimicked, they faded in popularity as American society took a more conservative turn in the 1980s.
The story of the legal effectiveness of radical lawyers—the ways in which they forged concrete solutions for the more narrowly defined legal dilemmas faced by their clients—is rather different. Here, there is considerable evidence that radical lawyers remained the “technicians” they often sought not to be, procedural specialists fully shaped by the broader twentieth-century transformation of American law from substance into procedure. This is clear from Falciola’s account of what radical lawyers actually did for movement activists: informing them of procedural rights against the police in the context of protests; focusing on juror selection and abuses of the grand jury process to slow down trials; fixing the undemocratic or corrupt internal processes of labor unions, the military, and prisons; working through the technicalities of the draft law. And sometimes, like far more conservative Legal Process thinkers, radical lawyers bluntly informed their clients that the law simply offered them nothing, that the legal process was simply not receptive to their claims. Thus, radical feminist lawyer Florynce Kennedy used to tell clients: “This is not a case to go into courts, but I’ll form a picket line with you for nothing” (77).
What Falciola has told us, then, is a complex story about radical lawyers’ ill-fated attempt to reenchant law, about their yearning to share and become and realize the beautiful dreams of their beautiful clients, but also their eventual and inevitable lapse into “mere” procedure and technique. This is, in final analysis, a book about the tragedy of modern law.
Of course, this is only my reading of this protean book. But there is some evidence that this might also be Falciola’s own understanding. Falciola tells us a great deal, as we have seen, about how social movements affected radical lawyers. At the very end the book, however, he confesses that he cannot really tell us how influence worked in the opposite direction in any substantive sense: “It would be interesting to fathom how the presence of complicit lawyers affected the patterns of radicalization, escalation, and de-escalation of individuals and groups. But this would require interrogating an extraordinarily large set of sources, which falls outside the scope and limits of this book. For now, it is safe to conclude that lawyers’ material, political, and moral support did not necessarily make militants more reckless or more restrained in their conduct. Rather, it empowered them. It made them more confident in challenging the law, whether they breached, ignored, contested, ridiculed, or creatively abided by it” (283). One might well interrogate Falciola’s subtle (too subtle?) distinction between (a) lawyers’ “empowering” their radical clients (which, according to him, they did) and (b) lawyers not making their radical clients either more reckless or restrained (which, according to him, they did not). But it seems to be the case that, for Falciola, lawyers had little to no impact on their clients’ imagination of possibilities. All law was, then, was a passive handmaiden, a neutral procedure of sorts, enabling and “empowering” what already existed but powerless to create it. This was precisely the fate that radical lawyers in this book tried so hard to escape.