An Innovative Approach to Movement Lawyering: an Immigrant Rights Case Study

• Published date: 01 January 2021
• Date: 01 January 2021

AN INNOVATIVE APPROACH TO MOVEMENT

LAWYERING: AN IMMIGRANT RIGHTS CASE

STUDY

CHRISTINE CIMINI & DOUG SMITH*

TABLE OF CONTENTS

INTRODUCTION ......................................... 432

I. LITERATURE ON LAWYERING AND SOCIAL CHANGE . . . . . . . . . . . . . 442

A. The Critique of Lawyers as Agents for Social Change . . . . 442

B. Newer Models of Social Change Lawyering........... 447

II. THE RISE AND FALL OF S-COMM AS AN EFFECTIVE CASE STUDY .... 454

III. THE IMMIGRANT RIGHTS LANDSCAPE PRIOR TO S-COMM . . . . . . . . . 456

A. The Local/National Fight Over Immigration. . . . . . . . . . . 456

B. The Start of S-Comm and the Transition from the Bush to

Obama Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 461

C. The Tradeoff of Increased Enforcement for CIR . . . . . . . . 464

IV. THE UNTOLD, MULTI-DIMENSIONAL STORY OF THE CAMPAIGN TO

UNDERMINE S-COMM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468

A. The Seed of the Campaign to End S-Comm. . . . . . . . . . . . 468

B. The Campaign’s Three Pillars: Local Organizing,

Litigation, and Publicity. . . . . . . . . . . . . . . . . . . . . . . . . 470

C. The “Groupo Duro” and the Use of Narrative to Mobilize . . . 472

D. Using Social Science to Support Utilitarian, Public Safety

Narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

* Author’s note. Christine N. Cimini, Professor of Law, University of Washington School of Law

and Doug Smith, Lecturer, Brandeis University, Legal Studies Department. © 2021, Christine Cimini and

Doug Smith.

431

E. Opt-In, Opt-Out Confusion Supports Narrative of

Government as Deceptive. . . . . . . . . . . . . . . . . . . . . . . . 478

F. Advocacy After Mandatory S-Comm . . . . . . . . . . . . . . . . . 485

V. AN INNOVATIVE APPROACH TO MOVEMENT LAWYERING ......... 490

A. Micro Level: Client-Center Lawyering for the Situation . . . 492

B. Meso Level: Lawyering for the Campaign. . . . . . . . . . . . . 497

C. Macro Level: Lawyering for the Movement. . . . . . . . . . . . 501

D. A (Very) Preliminary Theory Arising from this Case Study . . . 506

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512

INTRODUCTION

Communities are protesting systemic racism, police killings, xenophobia,

rising unemployment, climate change, and widening economic inequality.

The immigrant rights movement is a critical part of these efforts to foment

change.

1

Despite ascendant nativism, immigrant communities continue to

achieve moments of remarkable change.

2

The immigrant rights movement is

one of the leading edges in the current development of movement lawyering.

Lawyers and law students have renewed interest in creating a model of law-

yering that will support the social change efforts of the moment.

3

This Article

1. Communities organized around growing nativism and hostile policies such as the Trump adminis-

tration’s deployment of an elite tactical unit designed to support immigration arrest. See Caitlin

Dickerson & Zolan Kanno-Youngs, Border Patrol Will Deploy Elite Tactical Agents to Sanctuary Cities,

N.Y. TIMES (Feb. 14, 2020) (explaining that the elite tactical unit known as BORTAC, which acts essen-

tially as the SWAT team of the Border Patrol, would be part of the units sent to help with interior enforce-

ment. The unit carries additional gear such as stun grenades and has enhanced Special Forces-type

training, including sniper certif‌ication).

2. In addition to the advocacy that led to the demise of Secure Communities, which is the focus of

this Article, passage of the DREAM Act is another relatively recent moment of change. See

Development, Relief, and Education for Alien Minors Act of 2011, H.R. 1842, 112th Cong. § 1 (2011);

Development, Relief, and Education for Alien Minors Act of 2011, S. 952, 112th Cong. § 1 (2011).

3. In July 2020, we began a f‌ive-part course on Movement Lawyering titled, “Build Power, Fight

Power,” created and taught by lawyers and activists that are part of the Movement Law Lab. At the most

recent session, over 4,000 participants joined. See Build Power, Fight Power: A Five Part Course on

Movement Lawyering, Movement Law Lab (2019), https://movementlawlab.org/mlcourse [https://perma.

cc/RY2T-YT3B]. The course explains that “Times of upheaval are also times of great opportunity and

change. Lawyers and legal workers of conscience are needed now more than ever to support the people’s

resistance – be it the Movement for Black Lives, COVID-19 rapid-response, workers’ rights, climate

change, immigrant rights, and more. Yet movement lawyering is not what most of us [] were exposed to

in law school or what we are trained and encouraged to do as legal practitioners. Some of us are ready and

willing to support these movements, but aren’t sure how to help. Others of us don’t know what movement

lawyering means, but know that doing case after case isn’t going to solve the problems of our clients.

Finally, some of us are already connected and volunteering for movements, but this moment presents

new challenges that we haven’t seen before. We believe, this moment asks us to think differently

about our work. To f‌ind new ways to approach our cases, new partnerships, new thought-partners and

new strategies. We created this course to help all legal advocates—the experienced and the newly

432 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:431

uses the context of deportation resistance to study a multi-layered campaign

involving lawyers, organizers, advocates, and clients, and from that extrapo-

lates an innovative approach to movement lawyering.

A rich body of literature subjects social change lawyering to critical exam-

ination.

4

The traditional concept of lawyers using litigation to effectuate

social change largely grew after World War II, between the 1950s and 1970s,

as lawyers f‌iled strategic cases to combat legalized segregation

5

and reform

public prisons, welfare systems, and mental hospitals.

6

As enticing as it was

to view litigation as a panacea to the large range of existing social ills, schol-

ars and activists questioned the effectiveness of litigation as a tool for lasting

social change.

7

The ensuing debate in legal scholarship surrounding the role of lawyers

involved in social change centers on the connected issues of the eff‌icacy of

lawyers’ remedies and lawyer accountability.

8

The eff‌icacy of remedies issue

questions how the legal system transforms disputes—funneling core political

conf‌licts into legally cognizable issues that are divorced from marginalized

committed—learn and ref‌lect together on how we can use our skills to support movements f‌ighting for

transformative change rooted in people power.” Id.

4. Scott Cummings has become the de facto participant-historian of the intellectual history of social

movement lawyering. See Scott Cummings & Deborah L. Rhode, Access to Justice: Looking Back,

Thinking Ahead, 30 GEO. J. LEGAL ETHICS 485 (2017) [hereinafter Cummings & Rhode, Access to

Justice]; Scott Cummings, Thematic Overview: Community Development Law and Economic Justice –

Why Law Matters, 26 J. AFFORDABLE HOUS. & CMTY. DEV. L. 35 (2017) [hereinafter Cummings,

Thematic Overview]; SCOTT CUMMINGS & ALAN K. CHEN, PUBLIC INTEREST LAWYERING: A

CONTEMPORARY PERSPECTIVE (John Devins ed., 13th ed. 2013) [hereinafter CUMMINGS & CHEN, PUBLIC

INTEREST LAWYERING]. While we cannot do justice to his contributions over the past few years, we hope

to situate our research project within this body of literature and summarize his contributions suff‌iciently

to demonstrate the intentions of our research methods.

5. Scott L. Cummings & Ingrid V. Eagly, A Critical Ref‌lection on Law and Organizing, 48 UCLA L.

REV. 443, 444 (2001) [hereinafter Cummings & Eagly, A Critical Ref‌lection] (describing this part of the

movement during the 1950s and 1960s).

6. Id. at 444–45 (describing the public litigation that took place in the 1970s).

7. Early advocates, like Stephen Wexler and Gary Bellow, offered a more nuanced role for lawyers.

See Stephen Wexler, Practicing Law for Poor People, 79 YALE L. J. 1049, 1053 (1970) (arguing that

rights enforcement by lawyers would not have a signif‌icant impact upon poor people and urging practic-

ing poverty lawyers to organize communities). Gary Bellow posited a model of legal-aid practice that

emphasized political action and viewed litigation as ancillary to a broader social change strategy. See

Gary Bellow, Turning Solutions into Problems: The Legal Aid Experience, GARYBELLOW.ORG (Aug.

1977), http://www.garybellow.org/garywords/solutions.html [https://perma.cc/U4Y2-KQP9] [hereinafter

Bellow, Turning Solutions into Problems] (arguing for a broader conception of lawyering that included a

“political perspective, directed toward specif‌ic changes in particular institutions that affect the poor” and

“focused case” pressure in combination with community organizing and legislative advocacy). For an

example of an early on-the-ground advocate of movement lawyering, see TOMIKO BROWN-NAGIN,

COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THE CIVIL RIGHTS MOVEMENT 187–88

(Dave McBride ed., 2011) (describing the “volatile alliance” forged and destroyed between lawyers and

demonstrators between 1961-64).

8. Often the literature distinguishes eff‌icacy and accountability (sometime described as autonomy),

but we, along with a smaller group of observers, f‌ind them inseverable. See generally Scott L. Cummings,

The Puzzle of Social Movements in American Legal Theory, 64 UCLA L. REV. 1554 (2017) [hereinafter

Cummings, Puzzle of Social Movements]; Scott L. Cummings, Rethinking the Foundational Critiques of

Lawyers in Social Movements, 85 FORDHAM L. REV. 1987 (2017) [hereinafter Cummings, Foundational

Critiques]; Scott L. Cummings, Movement Lawyering, 2017 U. OF ILL. L. REV. 1645 (2017) [hereinafter

Cummings, Movement Lawyering]; Scott L. Cummings, The Social Movement Turn in Law, 43 LAW &

SOC. INQUIRY 360 (2018) [hereinafter Cummings, Turn in Law].

2021] AN INNOVATIVE APPROACH TO MOVEMENT LAWYERING 433