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.

This Article studies the role of law in the successful community-labor challenge to Wal-Mart’s first proposed Los Angeles-area Supercenter in the working-class city of Inglewood. It focuses on the use of legal and legislative challenges to mobilize opposition to Wal-Mart’s Inglewood initiative—a technique known as the “site fight” because of its focus on blocking Wal-Mart at a specific location. The aims of this Article are twofold. First, it seeks to understand the site fight in relation to broader shifts within the labor movement, which have driven some unions to promote pro-labor legal reform at the municipal government level. Part I therefore explores how labor leaders have responded to the limits of traditional unionism by pursuing an alternative model of labor activism that uses political opportunities available in the local development process to advocate policy reforms designed to increase union density. This local approach is built upon three pillars: (1) it targets non-exportable service industries tethered to local economies and thus offering strong opportunities for union organizing; (2) it relies on community-labor coalitions to exert political influence within the local development process; and (3) it leverages local opportunities for legal advocacy outside the traditional confines of labor law to promote development practices accountable to labor and community stakeholders. To illustrate the dynamics of local labor activism, Part II provides a detailed case study of the defining campaign of the anti-Wal-Mart movement—the Inglewood site fight—in which labor leaders allied with land use and environmental lawyers to oppose Supercenter plans on the ground that the negative community impacts outweighed consumer benefits. The second goal of this Article is to use the Inglewood site fight to engage the scholarly debate about the role of law in social change processes generally and the relationship between law and contemporary labor organizing specifically. Part III draws four central lessons from the Inglewood campaign. First, in contrast to portraits of lawyers derailing social movements by pursuing rights in court at the cost of grassroots mobilization, the Inglewood case study provides an example of multi-level legal activism where lawyers worked in different institutional venues to challenge Wal-Mart site proposals and develop policy reforms. Second, the Inglewood site fight highlights a flexible advocacy model characterized by tactical pluralism, in which lawyers advanced a coordinated labor campaign using traditional litigation alongside nontraditional skills such as drafting legislation and conducting public relations. Third, the case study reveals the sophisticated ways in which labor client groups operate as consumers of legal services, assembling lawyer teams that contribute networked expertise in such areas as land use, environmental, and election law to advance labor organizing objectives. Finally, the case study provides an interesting perspective on the problem of multi-tiered accountability that arises in the context of low-income community representation, where lawyers must navigate complex relationships with multi-organizational coalitions that, in turn, struggle to represent competing conceptions of community.

The field of labor organizing -- once a site of progressive disenchantment with law -- has now become a crucial locus of law's resurgence. There is mounting evidence that legal innovation is contributing to a new dynamism within the labor movement as immigrant worker centers, community-labor coalitions, and other grassroots alliances creatively use law to mobilize low-wage workers. These efforts suggest that a reorientation is under way within the labor movement, with activists adopting a legal pluralist approach to organizing that takes strategic advantage of the multiple and intersecting ways in which both employee and employer activities are legally regulated to leverage the power of law to advance labor goals. Yet, while there are a growing number of stories of legal mobilization campaigns outside of the formal labor law context, the evidence of their short-term impact and transformative legacy is less developed. Nor is there a detailed empirical picture of the variables that impact success and failure. This Article responds to this gap by recounting a pivotal story of contemporary labor activism: the anti-sweatshop movement in the Los Angeles garment industry. It offers a detailed case study of the decade-long campaign to bring accountability to the country’s largest garment production sector. At its most ambitious, the campaign sought to make legal responsibility follow economic power, rupturing the legal fiction that protected profitable retailers and manufacturers from the labor abuses committed by their contractors. Toward this end, the campaign deployed a multi-faceted tactical approach, pioneering the strategic integration of targeted litigation and worker organizing in a way that challenged the conventional wisdom about the demobilizing impact of law -- and marked the emergence of a new wave of low-wage worker organizing outside of the traditional labor law regime. This Article examines how law lived up to its promise in the anti-sweatshop movement. It begins by outlining the role of law in facilitating the rise of modern sweatshop labor in the garment industry, showing how industry actors combined legal opportunities for foreign outsourcing and domestic subcontracting with anti-union efforts and aggressive immigrant hiring to deregulate garment production in Los Angeles. It then offers a close descriptive account of the coordinated litigation, legislative, and grassroots campaign to reform industry labor practices by assigning liability to the retailers and manufacturers that ultimately benefited from sweatshop abuse. The Article concludes by appraising the results of the anti-sweatshop campaign from a qualitative empirical perspective, examining what was achieved and what remained undone, while suggesting theoretical implications for the study of labor law and the relationship between law and organizing.

Pro bono has undergone a profound transformation. Whereas for most of American legal history, pro bono was ad hoc and individualized, dispensed informally as professional charity, within the last twenty-five years it has became centralized and streamlined, distributed through an elaborate institutional structure by private lawyers acting out of professional duty. Pro bono has thus emerged as the dominant means of dispensing free representation to poor and underserved clients, eclipsing state-sponsored legal services and other nongovernmental mechanisms in importance. This Article examines the causes, features, and consequences of pro bono's institutionalization. It begins with an analysis of the forces behind pro bono's institutional rise, emphasizing the role of the organized bar, federal legal services, the nonprofit sector, and big law firms. This Article then maps the contours of pro bono's institutional architecture, analyzing the structures of organizational collaboration, mechanisms of efficiency, strategies for accountability, and processes of adaptation that define pro bono's operational identity. It concludes by probing the systemic consequences of pro bono's new institutional centrality, weighing the pragmatic benefits of leveraged law firm resources against the limitations imposed by the dependence on private lawyers beholden to commercial client interests.

There is growing scholarly interest in how community and labor groups are fashioning new legal frameworks outside of traditional labor law to facilitate worker organizing and enhance workplace standards. This Article focuses on an important and under-studied dimension of this movement: the use of local government law as a tool to restructure low-wage markets and improve the economic status of the working poor. To better understand the role of local government law in contemporary labor activism, we look closely at nine low-wage worker initiatives launched in Los Angeles between 1997 and 2008. We describe the genesis and features of these initiatives and examine how they relate to—and extend—traditional local government contracting, land use, and regulatory powers. We then step back from the details of the policies to identify general patterns that may be helpful in guiding scholars and activists interested in the potential of local government law as a lever of low-wage market reform. Specifically, we examine the type of organizational alliances that have promoted the initiatives, map the industry sectors targeted for local regulation, define a range of policy objectives, articulate how the initiatives are framed to policy makers, suggest basic criteria to assess policy impact, and explore the central challenge of replication.

Financial and legal constraints on nonprofit public interest organizations have focused attention on possibilities for pursuing public interest goals from within market-driven private practice. In this context, the private public interest law firm has been held out as an alternative site for “doing well” and “doing good,” allowing lawyers to take on large-scale social change litigation that nonprofit groups cannot because of resource limits—and big-firm pro bono programs will not because of business conflicts—while also addressing other deficits associated with nonprofit practice, such as low salaries, lack of training, and high turnover. Yet there is little research on how such firms operationalize their conception of public interest advocacy and what tradeoffs are required by the need to generate attorney’s fees.

This Article examines these tradeoffs through a case study of a nationally prominent private public interest law firm, Hadsell & Stormer, which is located in the Los Angeles area. It focuses on how the relationship between Hadsell & Stormer’s private form and public mission plays out across three key axes: principle (how the lawyers understand their obligations to causes, clients, and communities); power (how the lawyers make decisions about firm governance); and profit (how the lawyers build case portfolios, staff matters, and co-counsel with other firms). Across each dimension, we see that the firm’s hybrid form (part public, part private) is reflected in a set of hybrid ideals and practices (neither entirely public-oriented nor market-driven), which are continuously negotiated by the lawyers. I make three general observations based on the data.

First, Hadsell & Stormer’s effort to merge profit and principle results in a distinctive notion of professionalism, in which broad obligations to society, such as pro bono service, are generally viewed as inconsistent with firm radicalism, while micro-obligations to clients, such as zealousness, are embraced as part of the firm’s commitment to litigation excellence. Lawyer autonomy in defining organizational culture and selecting cases is highly valued, which (in combination with the firm’s strong client-centered ethos) results in a relatively weak sense of firm accountability to a well-defined external political constituency. Second, with respect to internal power relations, Hadsell & Stormer works to balance its commitment to egalitarian values—creating an internal firm culture that matches its vision of the outside world—with the reality of running a financially viable firm built upon litigation success. In general, firm governance tends to track the public-private divide, with broad decisions relating to firm politics, such as whether to pursue new categories of cases for political impact, made in accord with democratic ideals, and specific questions relating to firm economics, such as staffing and case management, made in a more hierarchical manner. Finally, although Hadsell & Stormer is categorically not driven by profit, it must make one in order to survive. To do so, the firm deploys three main strategies. (1) It spreads risk through case selection by (a) choosing cases across different categories based on double-bottom line considerations, and (b) cross-subsidizing high-risk “righteous” cases with lower-risk, higher-yield “bread and butter” cases and, less frequently, non-PIL cases that can be quickly resolved for predictable fees. (2) It increases productivity and spreads risk through case staffing, by (a) leveraging associate work in a conventional pyramid pattern, and (b) entering into flexible collaborations with other firms that allow it to expand or contract based on the volume of work. (3) It hedges downside risk through fee arrangements that allow it to profit from its comparative expertise (trial work) and recover irrespective of the award of statutory fees; the firm also over-selects damages cases relative to injunctive relief cases, which pose greater risks of no fee recovery.

In the end, I conclude that firms like Hadsell & Stormer play a unique role in the broader public interest law field. They are optimally suited to complement their nonprofit counterparts by bringing more legal muscle to bear and filling in substantive gaps in the system of legal representation. They therefore achieve a central aim of the public interest law movement: giving voice to less powerful groups. In this sense, although private PIL firms may not provide more justice in the aggregate, they provide justice when it counts.

This Article is an account of profound changes in the organization and practice of public interest law that have emerged over the past 25 years against the backdrop of globalization. Its central claim is that as the United States has become more globally interdependent, the institutional context of public interest law has been transformed, elevating transnational mobility as a basic feature of legal practice. The Article specifically examines three vectors of global change that have reshaped the terrain of US public interest law: the increasing magnitude and scope of undocumented immigration; the growth of free trade and its governing institutions; and the heightened political influence of human rights. It suggests that each of these trends has contributed to important institutional revisions within the US public interest system: the rise of immigrant rights as a distinctive category of public interest practice; the emergence of transnational advocacy as a response to the impact of US economic policy abroad; and the movement to promote domestic human rights, both as a way to resist the deregulatory thrust of market integration at home and to defend civil rights and civil liberties in the face of domestic conservatism and the War on Terror. After mapping the institutional scope and density of these changes, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.

Community Economic Development (CED) is commonly described as a quintessentially local project, one in which communities reconstruct dysfunctional markets as a way of reconstituting social relations and building political strength. As social policy, CED emphasizes local participation in the design and implementation of affordable housing, job creation, and financing programs. From the perspective of progressive lawyering, CED - which is associated with a form of transactional practice focused on negotiating deals on behalf of community-based organizational clients - values grassroots organization, accountability to community members, and local empowerment. This emphasis on localism, although underscoring important structural aspects of CED practice, can also divert attention from the ways in which CED is embedded in regional, national, and global institutional environments - and how such institutional environments shape opportunities for collective action. This essay therefore seeks to widen the lens of traditional CED analysis by making the connection between the local context within which CED activity is ultimately played out and larger processes of globalization that structure opportunities and constraints. In particular, it identifies major global-local linkages within the field of CED, examining how they generate possibilities for grassroots activism and progressive lawyering, while also setting limits on what they can achieve.