Community economic development (CED) emerged during the 1990s as the dominant approach to redressing urban poverty, replacing entitlement programs and civil rights initiatives with a market-based strategy for promoting economic equality. Premised on the idea that poor neighborhoods are underutilized markets in need of private sector investment, market-based CED gained a broad range of ideological adherents, resonating with proponents of black nationalism, neoliberal economics, and postmodern micropolitics. As the decade brought economic issues to the fore and legal services advocates faced mounting federal restrictions, increasing numbers of poverty lawyers adopted the market-based CED model, providing transactional legal assistance to community organizations engaged in neighborhood revitalization initiatives. Yet, despite the expansion of the market paradigm, analysts have largely avoided a critical dialogue about CED theory and have neglected a careful examination of the evolving nature of grassroots CED practice. This Article sets forth an indigenous critique of market-based CED, arguing that it fails to deliver on its promise of poverty alleviation, diverts attention from the need for a coordinated political response to economic disadvantage, privileges localism over structural reform, and impedes the formation of multiracial political alliances. This Article then presents an alternative model of politically engaged CED that integrates legal advocacy and community organizing to build cross-neighborhood coalitions that promote broad-based economic reform. It concludes by outlining the contours of this new approach, highlighting how poverty lawyers are collaborating with organizing groups to expand living wage ordinances, establish cooperative businesses, and implement comprehensive hiring and job training programs.

This Comment is a reply to Professor Orly Lobel’s The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937 (2007). Her central insight—that all forms of social action “potentially have cooptive as well as transformative effects”—is elegant in its simplicity and yet radical in its implications. Lobel argues that just as earlier reformers may have been seduced by the “myth of rights” into privileging legal reform over political action, the current scholarly orthodoxy—which she identifies with “critical legal consciousness”—is overly determined by an equally pernicious “myth of activism” that devalues the contributions of legal reform to transformative efforts and instead promotes “extralegal” activism. I want to build upon the foundation that 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 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, 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 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. Second, attention to practice complicates Lobel’s story about the turn to “extralegal” activism “outside” the law. A broader view of contemporary practice reveals a response to the critique of legal cooptation that is not trapped “outside” the law, as Lobel argues, but rather is sophisticated in operating across “legal” and “non-legal” fields. It is in this sense that current practice has outstripped Lobel’s critique of extralegalism, embracing a version of what I call constrained legalism, which strategically deploys law in a way that is neither utopian in its hopes for legal reform or rejectionist in its dismissal of legal avenues of transformation.

The emergence of Community Economic Development (CED) as a distinct field of cause lawyering highlights the complexities of community mobilization in the post-regulatory state. Defined by a set of social policies and grassroots practices that promote neighborhood revitalization, CED is associated with a transactional model of cause lawyering focused on negotiating deals between community-based nonprofit organizations, public funders, and private investors. Whereas cause lawyers have traditionally sought to mobilize claims of legal rights to advance systemic reform, CED lawyers attempt to mobilize community participation to change local economic circumstances through the creation of innovative institutional structures.

However, CED does not neatly remove barriers to mobilization; rather it presents a different set of opportunities and constraints. For instance, CED is not connected with broad-based social movements. Instead, it is parochial, seeking to preserve community boundaries and increase community control of resources. Moreover, while CED establishes legal mechanisms for ongoing community participation in local governance, it does so through the design of partnerships with government and business elites that create disincentives for political confrontation seeking reforms in state practice or increased resources from private sector institutions. For this reason, the modus operandi of CED practice is not one of protest and disruption. Nor is CED designed to challenge the existing rules of the game; rather, it seeks to build partnerships and distribute resources within the framework of the law as constituted. As a technique of institutional design that extends contractual relationships between the community, the market, and the state, CED therefore fosters a version of mobilization that tends to de-emphasize adversarial organizing in favor of collaboration with business and governmental partners.

At the grassroots level, however, there are important recent examples of community mobilization within CED that depart from the collaborative model. In particular, the emergence of an “accountable development” movement in Los Angeles—where community-labor coalitions have pressured publicly subsidized developers into a series of agreements to provide benefits to low-income communities—has focused attention on more confrontational forms of collective action, flowing out of the traditions of community organizing and social movement activism. This essay uses the advent of accountable development to re-examine the relationship between cause lawyering and community mobilization. It begins by describing the emergence of CED as a nonadversarial cause lawyering model, situating it within the context of the reaction against the social movements and legal rights strategies of the 1960s and 1970s. Drawing upon insights from social movement theory, it then analyzes the constraints that collaborative CED can impose on collective action by low-income communities. A case study of accountable development in Los Angeles follows, revealing an alternative approach to CED that mobilizes adversarial organizing to extract developer concessions and governmental reforms. It concludes with an analysis of cause lawyering in the accountable development context, suggesting continuities with conventional CED practice, while highlighting the ways in which the more confrontational approach of accountable development reshapes the lawyering role.

This essay—the introductory chapter to a book that examines the powerful intellectual legacy of Richard Abel—frames a central question posed by Abel’s scholarship: Is the professional project of lawyers a political one—defined by the protection and extension of fundamental rights and equality under law—or is it instead a commercial one—determined by lawyers’ material interest in maximizing the return on their services? Do lawyers stand for justice? Or are they an impediment to its full realization?

The essay offers two perspectives—one empirical and the other theoretical—on this fundamental “paradox of professionalism.” The first charts the development of the U.S. system of institutionalized pro bono as an example of the increasing interdependence of lawyers’ professional and commercial aims. One lesson to be drawn from this examination is that to the extent lawyers assimilate their political project (doing good) to their commercial one (doing well), commercial ends define the limits of what professional means can achieve—with profound consequences for the quantity and quality of justice served. Building off this case study of pro bono, the essay then suggests an approach to understanding legal professionalism that attends to its multiple meanings in practice, but also seeks to determine how the competing ideologies of professionalism ultimately shape the overall distribution of power. Toward this end, it rejects the standard binary formulation of the professional project—are lawyers a force for good or ill writ large?—and instead asks: Under what conditions do which lawyers advance which projects—and what are the consequences for social justice?

This question constitutes the central inquiry of the book, which seeks to provide a deeper understanding of the relationship between lawyers’ commercial aims and public aspirations. Drawing upon interdisciplinary and comparative perspectives, the book explores whether lawyers can transcend self-interest to meaningfully contribute to systems of political accountability, ethical advocacy, and distributional fairness. Its contributors, some of the world’s leading scholars of the legal profession, offer evidence that while justice is possible, it is never complete. Ultimately, how much—and what type of—justice prevails depends on how lawyers respond to, and reshape, the political and economic conditions in which they practice. As the book demonstrates, the possibility of justice is diminished as lawyers pursue self-regulation in the service of power; it is enhanced when lawyers mobilize—in the political arena, workplace, and law school—to contest it.