Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America's Colony.

Author:Del Toro, Valeria M. Pelet

NOTE CONTENTS INTRODUCTION 794 I. CRITIQUING THE CRITIQUE OF RIGHTS 801 A. CLS's Critique of Rights 801 B. CRT and LatCrit's Response to the Critique of Rights 804 II. PUERTO RICO'S COLONIAL STATUS UNDER THE U.S. LEGAL SYSTEM 810 A. Puerto Ricans, (Second-Class) U.S. Citizens 810 B. Repression on the Island 813 III. THE ADVENT OF CIVIL RIGHTS LITIGATION IN PUERTO RICO 817 A. Keeping Movements Alive 817 B. Lawyering for the People 822 C. A Project of Their Own 828 IV. TURNING TOWARDS RIGHTS TALK 832 A. Rights Talk as Restitution 832 B. CLS, Revisited 836 CONCLUSION 839 INTRODUCTION

On May Day 2017, thousands of Puerto Rican workers, students, and other groups demonstrated against draconian austerity measures ordered by the U.S.-appointed fiscal oversight board, a controversial creation of the PRO MESA law. (1) PROMESA, short for Puerto Rico Oversight, Management, and Economic Stability Act, is a federal law designed to address Puerto Rico's ballooning debt crisis. (2) The law established an oversight board with the power to override local government decisions, highlighting the territory's status as a de facto U.S. colony. (3) In March 2017, the oversight board voted unanimously in favor of cuts to the public pension system, (4) considered a $512 million cut in university funding, (5) and endorsed a plan to fire government employees, (6) transferring the weight of the island's public debt of $72 billion onto the people of Puerto Rico. (7) In response, thousands took to the streets, carrying signs with slogans against U.S. colonialism and images of the Puerto Rican flag in black and white, a symbol of resistance amid crisis. (8)

A protest of that size and manifesting such palpable anticolonial sentiment is unheard of in Puerto Rico. The questions of Puerto Rico's political status--whether Puerto Rico should become a state, independent, or something else--and how best to describe Puerto Rico's relationship to the United States have divided the island for almost seventy years. (9) Since the 1950s, (10) two centrist political parties have dominated political discourse on the island: the Partido Popular Democrdtico, (11) which supports Puerto Rico's current relationship with the United States, and the Partido Nuevo Progresista, (12) which advocates for Puerto Rico's statehood. (13) In general, both parties have avoided describing Puerto Rico as a "colony" for tactical, political reasons. (14) Even the legendary organizing against the U.S. Navy's presence in Vieques, (15) a situation with obvious colonial undertones, was careful "not to focus on Puerto Rico's political status in framing the political response to Vieques." (16) The local movement in Vieques did not view itself as "an anti-imperialist mobilization," but rather "framed its struggle as one of social justice and human rights," priding itself on its ability to stay out of the island's partisan struggles. (17) Any articulation of rights, the privileges that come with U.S. citizenship, or even the meaning of the nation's relationship with the United States, is inherently political in Puerto Rico.

The debates surrounding Puerto Rico's political status set the stage for a second, equally contested question: would a rights-based approach be effective at rectifying Puerto Rico's current socioeconomic and political condition? The federal government has long subjected Puerto Ricans to disparate treatment, which suggests that rights assertions may fall on deaf ears. Puerto Ricans, despite having U.S. citizenship, do not benefit from the same privileges as U.S. citizens living on the mainland. For instance, U.S. citizens living in Puerto Rico lack voting power in Congress, (18) which permits the imposition of institutions like the oversight board without any input from the island. Congress has also implemented federal aid programs differently in Puerto Rico than in the fifty states. (19) For example, Puerto Rico receives much less health-care funding than the states, (20) and "gets almost no help" from the U.S. government to support its disabled residents. (21)

The disparate treatment of Puerto Ricans became even more stark after the 2017 hurricane season, when Hurricanes Irma and Maria pummeled Puerto Rico. While President Trump said that his administration had done an "incredible" job responding to the crisis, (22) Puerto Ricans were still not able to access meals, (23) potable water, (24) or power (25) months afer the hurricanes hit. According to Federal Emergency Management Agency (FEMA) data, victims of Hurricane Maria in Puerto Rico have, on average, received inferior economic assistance compared to those affected by most major storms in the United States since 2005. (26) FEMA aid given to Puerto Ricans was typically inferior, in some cases three times as inferior, to aid given to victims of Hurricanes Katrina, Rita, and Sandy, among others. (27) In addition, a study from the Harvard T.H. Chan School of Public Health placed the death toll of Hurricane Maria at nearly 5,000 (28)--a figure almost seventy times higher than the Puerto Rican government's then-ofcial death count of sixty-four. (29) These tragic deaths served as yet another reminder of how downplaying the United States' disparate treatment of Puerto Ricans disregards the devastating, violent consequences of doing so.

After the hurricanes, some made demands on the federal government to respond to the crisis unfolding on the island. In particular, some Puerto Rican politicians, (30) as well as stateside politicians and journalists, invoked Puerto Ricans' status as U.S. citizens to condemn the United States' neglect of Puerto Rico and demand better for "Americans." (31) These journalists and politicians engaged in rights discourse--the act of invoicing rights to secure social change. (32) Their calls for "American" solidarity, however, did little to increase or expedite federal aid to Puerto Rico. Despite the fact that Puerto Ricans have a number of formal rights through their relationship to the United States, assertion of these rights by politicians and journalists did not lead to better treatment in this instance.

This inefficacy of rights discourse will come as no surprise to Critical Legal Studies (CLS) scholars. CLS scholars espouse the critique of rights theory, which rejects engaging in rights talk (33) at all. CLS contends that rights--and the legal work done to secure them--operate in very limited spaces that ultimately cannot benefit oppressed communities. According to the critique of rights, having people mobilize against colonial laws by demanding and articulating their rights would ultimately be pointless, as broader power structures limit what those rights can secure.

In this Note, I will argue that the CLS critique of rights, though compelling in the abstract, falters in the political and historical context of Puerto Rico. Although it may appear that rights have failed Puerto Ricans, particularly after the hurricanes and the United States' indefensible response, rights talk has historically provided a framework for effective organizing and community action. This Note counters the CLS intuition that rights talk has no value for Puerto Rico by focusing on the origins and development of the Puerto Rico Legal Project, an understudied but critical force for community development and legal advocacy on the island. (34) By concentrating on the entitlements that rights are thought to provide, the CLS critique of rights ignores the power of rights discourse to organize marginalized communities. The critique of rights also overlooks the value of the collective efforts that go into articulating a particular community's aspirations through rights talk, efforts that can be empowering and help spur further political action. (35) Further, the critique of rights fails to provide a framework for interpreting shiftts in political dialogue, such as the changes that occurred between the measured Vieques organizing and the recent protests against the Unsanctioned oversight board. (36)

I argue in this Note that the critique of rights does not easily map onto Puerto Rico because the critique does not account for the role that rights talk can play for oppressed colonial communities. Part I provides a background on the critique of rights as well as Critical Race Theory (CRT) and LatCrit, the schools of thought that first responded to its implications. Part II elaborates on Puerto Rico's colonial relationship to the United States to better explain the long history of legal and political repression in Puerto Rico. It also draws on original interviews with Puerto Rican and U.S. lawyers and community activists to reveal fissures in the critique of rights and to propose certain revisions to the CLS theory. Part III then uses the case study of the Project to illustrate how the critique of rights fails to provide a full account of the relationship between law and organizing in Puerto Rico. Finally, Part IV argues that, contrary to CLS's predictions, civil rights litigation and rights talk have been successful in Puerto Rico. The Project and its progeny catalyzed community lawyering on the island and enabled Puerto Ricans to organize their own locally based movements. Instead of undermining community organizing, litigation and rights talk galvanized domestic reformers.


    Before delving into the critique of rights and responses to that theory, I will provide a brief history of the development of CLS. CLS emerged in the late 1970s, led by progressive scholars like Mark Tushnet, Peter Gabel, Frances Olsen, and Duncan Kennedy. (37) CLS denounced U.S. liberalism by injecting Marxian social theory, structuralism, and deconstructive techniques into mainstream perceptions of liberal rights consciousness, the objectivity of judicial interpretation, and other aspects of liberal American legal theory. (38) CLS argues that the law is not neutral, as it tilts in favor of maintaining...

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