Developing My Personal Lawyer’s Theory of Social Action

-- By EmmaShumway - 19 Feb 2021

Why I’m Here

Choosing Law

I learned about climate change as an Environmental Studies Major, and I have been saddled with existential dread ever since. Immediately after undergrad, I dove into climate activism as a grassroots organizer. Initially a source of inspiration, this experience quickly became an exercise of screaming into the void for minimum wage. Going door to door, tweeting, and publishing op-eds warning of impending doom did not ease my anxiety. I understandably felt helpless, because we are nearing the point of no return. Individual action won’t cut it. We need rapid, sweeping societal change. Collecting signatures with the hopes of giving a corporation a slap on the wrist for willfully destroying the planet felt futile, because it is. So what could the solution be? I eventually landed on an answer: laws. New laws. Effective enforcement of existing laws. Or at least this premise is what motivated me to apply to law school. Now I’m not so sure.

Changing Perceptions

Given that my legal education was motivated by anger and fear, I wasn’t exactly idealistic as a new 1L. I did, however, have blind faith in the values of our legal system. Although I was aware of its most glaring shortcomings, like our criminal “justice” system, I believed that corrupt lawyers or companies were to blame. I hadn’t connected the dots to corrupt judges, and most significant, corrupt laws. I have since undergone a period of severe disillusionment. On one of my first days as a law student, my Constitutional Law professor casually noted that had the Supreme Court chosen to interpret the Constitution in an equally plausible way, the US would guarantee positive rights. I questioned the integrity of those who choose the legal profession after reading Transcendental Nonsense and Something Split while simultaneously learning that the origins of property law are white people stealing land from Native Americans and retroactively fabricating the law to provide a legal basis for doing so. Moot court taught me to effectively argue about one legal problem to achieve both a just and unjust result. It doesn’t help to see my intelligent and politically engaged classmates turn to big law without a second thought.

My First Stab at a Theory

The question now becomes, why do my instincts tell me to stay? Despite the collapse of my preconceived notions, this now-familiar refrain remains true: lawyers make things happen in society using words. I still believe that the law is the best tool I have to fight climate change, albeit a much more flawed tool than I initially thought. My task is to try and use my new and evolving understanding of the law to draft a lawyer’s theory of social action for myself and to perhaps find a way to inspire others to join me. Although I hope that my theory will ultimately be an all-encompassing understanding of how the world works and a corresponding legal theory, developing a comprehensive understanding of the innerworkings of society is a big feat. I hope to lay the groundwork by first identifying a few specific tactics that I believe are effective means of using a law degree to effect societal change.

Within the System

I would rather not contribute to “transcendental nonsense,” but it’s undeniable that I must partake in legal logic games if I want to win victories in court. To avoid getting lost in the struggle to make circular arguments more persuasively than my opponent, I cannot forget the functionalist perspective. Judges do not exist in a vacuum. I must never pretend that judges do not carry their own lifetime of prejudices that guide their decision-making; preparing for litigation should include research on the judge for strategic issue framing. In an effort to change the system from within, policy arguments should be highlighted in briefs and oral advocacy in an act of protest against the preference for doctrine. The policy reasons for fighting climate change are unmatched; it only aids the opponent to force arguments into the sterile confines of legal doctrine. The legal benefits of spending time in court are twofold: small but frequent victories build the momentum necessary to any watershed Supreme Court case, and frequent losses are a prerequisite to any successful social movement. The string of victories that culminated in Brown v. Board were preceded by far more losses.

Outside of the System

Lasting change will not result from strictly legal success. I will strategically use litigation as a forum to bring media attention to the cause and to provide a platform for organizers who tirelessly advocate for a true paradigm shift. This includes collaboration with organizers to determine legal priorities. _Juliana v. United States_ is a good example of both of these tactics. Outside of the courtroom, I will continue to demand change through protests, and I will provide legal services to participants in civil disobedience. Again remembering the functionalist approach and the psychology and sociology inherent to a lawyer’s theory of social action, networking with the people in power to achieve the desired policy changes will be essential. Even more effective would be getting one of our own elected so that our campaign goals can have a constant seat at the table.

Recruitment

It can be demoralizing to acknowledge the limited ranks of environmental lawyers. Inspiring my peers to help in some capacity must be a part of my strategy. Right now, this may just look like having open conversations about our futures. There are countless psychological barriers that prevent climate action; short-term thinking, avoiding cognitive dissonance due to lifestyle choices, etc. I can help alleviate the cognitive dissonance barrier by reminding people that 100 companies are responsible for 71% of CO2 emissions. I can also push back on the assumption that I’ve heard from many of my classmates: “someone else will do it.” A glance at Columbia employment statistics dispels this myth. In general, I hope that by forming strong, trusting relationships, I can at least plant a seed of curiosity.

The draft shows the advantages of knowing what you want to do in your practice at this stage in law school.

As you say, this is less an essay about a general theory of social behavior and more about how to build your practice. For that purpose, which can be made more explicit without doing harm to your other perceptive comments, this draft does very well indeed.

I would offer two routes to improve the next draft that I think are both promising. First, you could say more about building the network of your practice than following up on the idea of "recruiting" lawyers to work on the issues that concern you. One part of building a practice network is thinking about potential partners: both mentors and peers. This is close to and perhaps an advance on what you have written about in the present draft. But there are many other elements in a good network for your practice. You could think of them as lists of people you want to meet, operationally, but a little categorization and thoughts about where and how to meet the right people would be very useful here.

The other route to improvement is to begin to think about "how much," which is a very important part of planning your practice. Shouting into the wind for minimum wage isn't the only choice that might turn out not to be right for you. I know you will begin by saying that you grew up with modest expectations about lawyers' incomes and don't need big law's idea of big money. That's important, but other elements are important too. Do you want to have more people in your practice, or do you want to be a salaried lawyer at a place like EDF, where other people raise the money and make the decisions? Beginning to feel your way to the right answers for you (yes, only now, everybody knows that everybody will change) develops the imaginative and also the procedural muscles for going out into the world and realizing your intentions. That may not make the system uncorrupt, or the planet cooler, but it's part of how not to be motivated only by fear and anger in your own professional life.

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