Several authors of articles recently published by the Fordham Law Review returned to Fordham Law School on April 28 for a virtual discussion to continue a conversation on “subversive lawyering.”
In October 2021, the Center on Race, Law and Justice and the Stein Center for Law and Ethics held a colloquium in collaboration with the Fordham Law Review on what it means to be subversive when practicing law. Practitioners and academics from across disciplines, including housing, criminal justice, and legal education, came together to tease out this question. Their discussions resulted in seven essays examining the idea that lawyers, in the context of representing clients, could seek to reform, disrupt, or subvert aspects of the legal system that they personally regard as unjust. The essays were published in one of the latest issues of the Fordham Law Review.
The April event reunited some of these authors to discuss their papers and share their thoughts and conclusions on the question that was introduced in October.
“The overarching theme that seems to appear across the papers is that the ultimate goal is to disrupt the usual way in which the law operates … to mitigate the impact of injustice,” said Zenande Booi, executive director of the Center on Race, Law and Justice. “One of the things that seemed to come out is really expanding and redefining who is considered to be a legitimate holder of knowledge and who is allowed to have agency in the operation of the law.”
The participating authors at the April event included Zohra Ahmed ’13, assistant professor at University of Georgia Law School; Aundray Jermaine Archer, sentence mitigation paralegal at Legal Aid Society of Westchester County; Sarah Medina Camiscol, Justice Catalyst Fellow, public counsel lecturer at Yale College, and attorney with The Peer Defense Project; Daniel Farbman, assistant professor at Boston College Law School, Christina John ’21, law clerk in the New Jersey Appellate Division; Eloise Lawrence, assistant clinical professor at Harvard Law School and deputy faculty director at Harvard Legal Aid Bureau; Russell Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, & Religion at Fordham Law School; Aron Pines, community health worker, justice advocate and PEN America Writing for Justice Fellow; and Doug Smith, supervising senior attorney of Public Counsel.
“This is a project about democratizing legal knowledge and legal power, and I’ve been blessed with this opportunity to work with a terrific group of legal thinkers—some of whom are formally trained in law and some who not trained through law schools, but have as much or more expertise in law than the rest,” Pearce said. “That’s a real break from what is established legal scholarship and I do think that’s subversive in a very important and positive way.”
The event, moderated by Booi, was presented by the Center on Race, Law and Justice, the Stein Center, and the Fordham Law Review, and co-sponsored by the Asian Pacific American Law Students Association, the Black Law Students Association, the Latin American Law Students Association, and OUTLaws.
Defining Subversive Lawyering
John kicked off the conversation by discussing her article “Subversive Legal Education: Reformist Steps Toward Abolitionist Visions” (co-authored by Archer, Camiscoli, Pearce, and Pines, along with Maryam Salmanova and Vira Tarnavska) and defining subversive lawyering. “For me, subversive lawyering—and subversive legal education—is understanding there is expertise outside of those we traditionally think hold knowledge in the legal field,” she said. “Rather than just thinking that professors or judges hold the most knowledge, we really believe in the expertise of those who experience legal systems.”
Archer echoed John’s thoughts. “I served 22 years for a crime I didn’t commit, [and]I am steadily fighting for my innocence and have a motion pending right now,” he said. “I understood the spider web nature of law [years ago]… but now I have a better structured education and better understanding of the legal system. I think subversive lawyering has to be as inclusive as possible if it is to benefit society.”
“Subversive legal education, by my estimation, is anyone who’s utilizing non-traditional methods or means in the interest of deconstructing or decentering what we believe to know … about legal advocacy,” Pines said. “[It’s also about] how we can go about not only deconstructing it, but reimagining it for the better in the interest of improving.”
“All of us can be more radically pragmatic in the ways in which we open up spaces, decenter ourselves, deprivilege our own imaginations, and try to make space for other people to educate us,” said Farbman, author of “A Commons in the Master’s House.” “Although, I think, in some spaces it’s easier to do than others … I think that doesn’t mean that it’s not possible in any institutional setting to do that kind of work on a small scale … and maybe build [it]into something bigger.”
Archer and Pines shared experiences of working with their respective attorneys while incarcerated and what they wished they knew then.
“Generally, young people—especially minors—are seen as lacking capacity to fully understand [their situations in court]. And attorneys get off the hook in terms of actually thinking through with clients about what it means to settle and what it means to move through their case,” said Camiscoli in response to their presentation. “The stories that [Archer and Pines] shared are stories of infantilization, of taking dignity from clients. It is something that gets accepted or legitimized in the practice if those folks are seen as young, having disabilities, or being incarcerated. And this is completely unacceptable.”
Lawrence, author of “When We Fight, We Win: Eviction Defense as Subversive Lawyering,” assigned “Subversive Legal Education” to her students, who said, she claimed, it was one of the best essays they ever read in law school. “I just want to say that you’re already making part of the change, and I think it is small things, not just big things,” she said to Archer and Pines. “I’m so excited that people are much more radicalized than when I was going to law school 20 years ago, but I also think we need to show them that …. there are going to be incremental pieces. I don’t think it’s all or nothing. So using your kinds of materials and essays and also bringing in non-lawyer voices, like client and organizer voices, are really critical.”
Smith discussed his paper, “Policy by the People, for the People: Designing Responsive Regulation and Building Democratic Power,” which he co-authored with Scott L. Cummings. The paper, according to Smith, describes how lawyers can contribute to what he and Cummings call “policy by the people”—a model of policy development and advocacy that is led by community expertise and rooted in power building. “[We propose] moving policy away from the halls of power and into where the actual expertise lives, and doing it in a way that is about more than just changing policy and adopting a bill,” he said. “The paper really focuses on the lawyer’s role in supporting those people in that process … [and]gives concrete examples of how lawyers can actually embody the principles of movement lawyering in these policy campaigns.”
After discussing her essay, titled “Bargaining for Abolition,” Ahmed argued that collaborations are greatly needed in order for political change to move forward. “Lawyers are often taught, ‘It’s your individual brilliance that will crack the code, find the statute, and solve the problem,’” she said. “That may be true, but anything that’s worth doing is done in groups. That’s the kind of civics that I think would be really transformative.”
