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ACHIEVING JUSTICE THROUGH REBELLIOUS LAWYERING

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FALL 201015ACHIEVING JUSTICE THROUGH REBELLIOUS LAWYERING:RESTRUCTURING SYSTEMS OF LAW AND POWER FOR SOCIAL CHANGEBy: Ashly Hinmon 1A dynamic equilibrium of power exists between law and social movements. Our role in social-change lawyering is not only to focus on the law itself, but also to understand and transform the frameworks that create and maintain balanced systems of law in our society. Lani Gunier, the fi rst woman of color to be appointed to a tenured professorship at Harvard Law School, and Gerald Torres, a leading fi gure in critical race theory and professor of law at the University of Texas, gave a joint keynote address on restructuring systems of law and power for social change at the Rebellious Lawyering Conference (RebLaw), held at Yale Law School in February 2010. Under the broad rubric of social change, Gunier and Torres examined the transformation of deeply entrenched traditions that perpetuate injustice in our society. Racism, for example, impacts the legal system on many identifi able levels but is nonetheless diffi cult to eradicate because it is bound up within society’s mechanisms of power. Gunier likens the interaction between society’s traditions and the law to a game, and asserts that within every game there are three dimensions of power. The fi rst dimension is visible confl ict–the players manipulate rules in order to win. The second dimension involves the identity of the game’s designers, or the ability of those in power, to shape the rules in a way that benefi ts the rule-makers. The third dimension involves an examination of the meta-narrative–the story we, as a society, tell to explain why winners deserve to win and why losers deserve to lose. Gunier and Torres argue that social-change attorneys often focus on the second dimension of power and seek to rewrite the rules in a way that yields more just results. The law, as a societal institution, both allocates power and disciplines power-holders. Gunier and Torres, however, advocate for an increased awareness of and engagement with the third dimension of power–the meta-narrative of law and justice, which functions both to justify the outcomes of the law and to keep the design of our system hidden. According to Gunier and Torres, social-change lawyering can most readily transform the hidden roots of injustice not only by shifting the rules, but also by shifting cultural understandings of justice. To do this, we must engage on the micro-level. After identifying sources of power, we must increase the democratic potential of specifi c marginalized groups, in order to enhance their capacity to take control of their own identity and power. Gunier and Torres also emphasize the importance of horizontal relationships and developing “constituencies of accountability” across group lines. At the conference, these themes were developed through twenty-four panels and workshops on rebellious lawyering. Some sessions focused specifi cally on changing the rules of the game through litigation or legislation. For example, one panel, “Domestic Remedies for Human Rights Violations Abroad: The Future of Alien Tort Statute Legislation,” brought together leading Alien Tort Statute (ATS) litigators to discuss how human rights advocates utilize the ATS as a domestic remedy for international human rights violations. The panelists discussed a recent victory in which Nigerian activists were awarded $15.5 million in compensation in a suit charging Shell Oil with complicity in torture and killings, as well as a current case in which eleven Indonesian citizens are suing ExxonMobil in D.C. Circuit Court for kidnapping, torture, and murder. The panelists discussed the challenges and benefi ts of the ATS approach in promoting accountability for human rights violators. Later at the RebLaw Conference, Karen Goodrow, the Director of the Connecticut Innocence Project, led a workshop titled “The Unreliability of Forensics: Detecting Errors in Evidence.” Goodrow works to overturn wrongful convictions through the use of post-conviction DNA testing. In 2006, the Innocence Project secured the release of James Calvin Tillman, who served 18 ½ years in prison for crimes he did not commit. As a result of his case, the Connecticut Legislature passed a new statute in 2008 providing for compensation for the wrongfully convicted. Goodrow is a strong advocate for the abolition of “junk science” in forensic gathering, including such methods as dog tracking, bite mark analysis, and “pour patterns,” a type of arson evidence that frequently leads to false-positive identifi cations. Melissa Sontag Broudo, a Consulting Attorney with the Sex Workers Project in New York City, led a lunch workshop entitled “Legislative Advocacy for Sex Workers: Vacating Prior Prostitution Convictions & No Condoms as Evidence.” The Sex Workers Project uses human rights and harm-reduction approaches to protect and promote the rights of individuals who engage in sex work, regardless of whether they do so by choice, circumstance, or coercion. Broudo discussed two crucial pieces of legislation and how they can be used to help disadvantaged groups. Namely, Broudo focused on New York State Assembly Bill A03856, a bill to stop police and prosecutors from using possession of condoms as evidence that people are engaged or intending to engage in prostitution, and New York State Assembly Bill A07670, a bill to vacate prostitution convictions for traffi cked people, which passed the assembly and is now awaiting action in the New York Senate. Other sessions at the conference focused on the meta-Racism is nonetheless diffi cult to eradicate because it is bound up within society’s mechanisms of power.THE MODERN AMERICAN16narrative process of rewriting the stories that society tells itself about what is “just.” For example, a panel titled “Identity Construction and the Law: How Civic, Racial, Gender and Sexual Identity Operate and Converge in the Legal Arena” explored the interaction of these four identities, among each other and with the law. Each panelist analyzed how people formulate these


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