Carasik, L --- "Think global, act global: The praxis of social justice lawyering in the global era" [2008] LegEdDig 32; (2008) 16(3) Legal Education Digest 8

• Think global, act global: the praxis of social justice lawyering in the global era

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Think global, act global: the praxis of social justice lawyering in the global era

L Carasik

NYLS Clin Inst P No. 07/08#31, 2007, pp 1–70

As social justice lawyering strategies have evolved, human rights work is emerging at the forefront of recent advocacy efforts, and many visionary law school clinicians have integrated human rights theories into their clinical work. Under the human rights rubric, workers’ rights are gaining political currency as an integral component of anti-poverty work. Broad advocacy coalitions designed to advance workers’ rights rely on a few universally held foundational assumptions; the status quo is unconscionable, the eradication of poverty is a moral imperative, and a transnational, united force is necessary to agitate for redistributive justice and the valourisation of human dignity.

This article suggests a clinical model that integrates social change theory and anti-poverty work in the global era with the hope that it will contribute to the discourse about and practice of promoting workers’ rights at home and abroad. The proposal envisions partnering with a law school clinic in China whose work would dovetail with the emerging imperative of approaching anti-poverty work through a global lens, by targeting widespread labour abuses in China.

A specialised labour rights clinic would be uniquely situated to capitalise on the incipient movement toward enhanced worker protection in China. The clinic would serve multiple goals. Working in collaboration with other NGOs, the clinic would provide legal representation in selected, strategic litigation, promote legal literacy, advance policy, and cultivate a commitment to public interest lawyering. By targeting the particularly vulnerable low-skilled migrant work force, the clinic would incorporate advocacy and educational components that would help raise legal consciousness among workers and provide legal representation that begins to raise the floor for all workers. With careful design, the clinic would espouse explicit pedagogical and political goals aimed at enhancing the capacity of civil society to address fundamental concerns about widespread labour exploitation and develop distinct teaching methodologies aimed at achieving these particular goals that would be adaptable to other substantive and geographical areas. The clinic would also incorporate the lessons learned about cause and community lawyering in other venues. Traditional clinics, both in China and elsewhere, have often focused attention on advocacy in the context of individual clients, excluding more comprehensive advocacy strategies. Recognising that it is equally important to identify and eliminate the structural impediments to ongoing and widespread enforcement of the rule of law and continued progress toward fair labour standards, the mission of this clinic would be extend far beyond representation in individual cases. After the clinic in China is operational, the next step would involve developing a U.S. clinical component that advocates for global labor standards.

I am in the process of seeking out a law school in China for a clinical partnership with my home institution and possibly other U.S. laws schools: the goal would be to develop a clinical program in China with a corresponding clinical component at home. A crucial, additional partner is a non- governmental organisation (NGO) with on-the-ground knowledge of the obstacles we are likely to encounter.

This article’s prescriptive focus runs contrary to the precepts of clinical pedagogy, which tends to be reflective in nature. Given the dire circumstances facing an expanding number of people, efforts to palliate the ill-effects of globalisation cannot wait until the details are perfected and the complexities resolved.

While clinical legal education envisions multiple goals, much has been written about the central role of a social justice mission in law school clinics. Many clinicians express dissatisfaction with a clinical model that does not elevate the importance of advancing social justice goals. In fact, ‘[m]ost clinical educators believe that educating the next generation to create social change — to bring about a more just society — is the core of what we do, why we do it, and how we do it.’ In this context, globalisation cannot be ignored, as ‘[t]he future of lawyering for lower income people will be linked both to understanding the global economy and cooperating with lawyers for poor people across national borders.’ Many advocates believe that this ‘transnational legal process perspective confirms both the continuing value and imperative of clinical work and international law.’

The most effective method of leveraging clinical pedagogy to advance social justice goals is far from clear. As with all advocacy decisions, each choice implicates different compromises and potential pitfalls. The greatest failure would be complacency and complicity in the face of the unprecedented and manifestly unjust growth of income disparities and asset maldistribution worldwide.

Chinese critics of legal education note that the foundational underpinnings of legal education were inadequate to train competent professionals. In its current iteration, law students in China have little interaction with their professors, many of whom conceive of their teaching duties as imparting massive amounts of information to students for memorisation, without critical analysis. Universities have historically placed little emphasis on skills training and problem-solving. Based on the values conveyed through the instructional methodologies, Chinese students understandably labour under the misconception that good lawyering is premised on the ‘mastery of black letter law.’ Widespread dissatisfaction with the narrow nature of legal education precipitated a perceptible shift in legal education, broadening the focus of the legal academy. The clinical education movement began to gain a foothold in China, starting most prominently with grants from the Ford Foundation in 2000. Because China has in some ways mirrored the trajectory of clinical education in the U.S., where skills training was initially considered pedestrian, clinical education has not yet garnered significant institutional support, inhibiting resource allocation to clinics. In response to these challenges, advocates of clinical education coalesced into the Committee of Chinese Clinical Legal Educators (CCCLE) to advance the legitimacy of clinics, to consolidate the initial gains, and to collaborate and share insights about emerging clinical pedagogy.

Although many Chinese educators recognise the value of clinical instruction, the academy’s failure to embrace clinical education has relegated much of the support and funding to foreign sources. These models funded by foreign financial assistance tend to favour the prevailing clinical constructs derived the funding source’s own experiences and priorities, and are often infused consciously and unconsciously with embedded cultural biases. Money from the U.S. Department of State, private foundations, and initiatives from academia tends to favour U.S. style clinics that are very resource intensive, a model that is not readily adaptable to China’s legal education system. The limited prospects for obtaining foreign funding may deter proposals for new clinics, based on the assumption that clinics need substantial external funds. Clinic funding that relies on short term grants inhibits stability in terms of faculty prestige, faculty turnover, and the clinic’s substantive focus, all of which in turn influence how fully clinical education is embraced and legitimised within Chinese law schools.

Like their U.S. counterparts, clinical educators in China are not monolithic, and they articulate multiple goals to which they ascribe varying levels of priority. Goals include engendering critical thinking, fostering aptitude in both traditional lawyering skills and problem-solving, and advancing social justice. Equally importantly, many clinicians strive to educate Chinese lawyers about the history and development of law in China, and the centrality of law and legal institutions in implementing the ‘rule of law’ in a heterogeneous democracy. Despite the range of goals, a growing number of Chinese clinicians have come to see the importance of integrating concepts of social justice into clinical pedagogy. Similar to the mission of many U.S. clinics, a number of Chinese clinicians believe that skills building must be accompanied by a commitment to advancing justice and inculcating a public service ethos. While there are undoubtedly skeptics that question the ability of law school clinics to wield any transformative power, ‘China’s early clinicians instead look to the clinical model as the vehicle for establishing new modes of dialogue within their society.’ This is particularly important, since the burden for providing legal assistance to China’s marginalised population has increasingly been delegated to law school clinics, where legal aid work serves as the bedrock for almost all programs.

As private employers entered the economy, displaced workers were denied benefits that previously accompanied employment within state owned enterprises. The vast migration to urban areas has created a virtually limitless supply of desperate rural migrants who are rarely informed of their rights and even less likely to vindicate them. However, frustration with the evisceration of historical benefits and security on which the workers had come to rely has fomented an ever-growing body of restive workers.

Legal protections for workers originate from both the international community and within China. On the international level, protections are divided into two spheres: public international workplace rights and private workplace rights. The public arena includes those labour rights falling under the general penumbra of human rights contained in multilateral conventions and declarations, as well as those rights integrated into international trade instruments. Private workplace rights are increasingly emanating from MNCs. International pressure for fair labour practices can originate from various sources, including UN declarations, multilateral financial institutions, NGOs, and labour and human rights organisations, although these actors function with very different foci, goals and methods. Finally, the behavior of MNCs serves as a locus for the battle over workers’ rights.

All clinics face choices about the advocacy strategies they embrace, and their efficacy at realising their goals will rely in part on their ability to reflect the political and legal reality in which they will operate.

To facilitate a multidisciplinary perspective, I wanted to work with an organisation that approached advocacy from a perspective that is not purely or even centrally legal. For a variety of reasons, I elected to work with Verite, an internationally recognised and widely respected non-governmental organisation (NGO) that promotes the universal adoption of workplace standards that ensure fair and safe working conditions around the world, with a focus on emerging markets. Verite’s efforts are at the forefront of an innovative approach to improving labour standards in the integrated global economy through a variety of mechanisms, including private, independent monitoring of transnational Corporate Codes of Conduct, training and education programs, and the enforcement of local, regional and international labour laws.

In developing a joint workers’ rights project, I assumed my best entree was in the nascent clinical legal education movement in China. To deviate from the widely assailed top-down approach, and to combat legitimate concerns about U.S. cultural imperialism, however well-intentioned, I hope to construct a model that integrates Chinese stakeholders and advocates, using the connections, credibility and gravitas Verite has developed through its efforts to aid Chinese and other workers toiling in the supply chain throughout the developing world. From that collaboration, I hope to generate ideas for a U.S. clinical partnership that coincides with the needs of Chinese workers and advocates, as well as a diverse coalition of advocacy groups in the U.S. With some cultural knowledge and local input, we can extract culturally transferable and appropriate insights from our own evolving notions of social justice lawyering. Inevitably, various interests may at times collide, but it is critical to struggle to transcend the divisions in order to support a global consciousness that demands fundamental economic justice. In addition to bringing committed and sincere interest, U.S. clinicians can offer several concrete services to Chinese collaborators: a willingness to seek out the funding necessary to finance this enterprise, experience in exploring the intersection of clinic design and pedagogy with social justice goals, access to academic and other research resources, and technical support.

Well-meaning analysts hailing from every political hue and espousing legitimately contrasting theories will never achieve consensus about the best method for achieving development, nor will they agree on the acceptable balance between economic development, legal development, and democratisation. Irrespective of one’s preference for capitalism or communism, individualism or collectivism, or other polarising characterisations, there is more than enough collective wealth to engage in at least a modest redistribution that ensures each human being’s entitlement to basic dignity and survival.

The challenge lies in determining which aspects of our clinical pedagogy can be extracted and transferred to China.

The importance of avoiding the thoughtless exportation of American style clinics without due regard and careful consideration cannot be overstated. In developing these new clinical models, Chinese clinicians need to exercise caution and critically assess the contributions and advice of foreign clinicians, and develop their clinical constructs, pedagogy, and mission with considerations of the economic, political, social, and legal culture in China. In fact, certain aspects Chinese legal culture makes it hard to replicate the U.S. paradigm. Delegating primary professional responsibility for clinical work to students is thwarted in China by the absence of a student practice rule authorising them to act in the role of attorneys, at least with respect to appearance in court and administrative processes. This caution applies equally to U.S. clinicians offering assistance and collaboration with issues of clinic design. U.S. clinicians must be sensitive to the specifics of the Chinese legal system, and the implications for the focus of skills teaching.

In designing a clinic to address global poverty by supporting Chinese workers, it is critical to remain mindful of social change theory and progressive lawyering, and strive for a construct that advances social justice imperatives.

Accordingly, clinic design should try to incorporate a number of goals that converge at the intersection of clinical pedagogy, human rights, globalisation, and social change theory. To achieve those goals, lawyers must rely on a diverse tool kit of advocacy strategies.

Contemporary attitudes about litigation as a dispute resolution mechanism in China are influenced by traditional cultural thinking that idealises the ‘collective good,’ valuing harmony over discord and preferring concession to institutionalised conflict.

Enhancing access to justice is a pivotal goal for clinical education in China. While determining the subject matter of a clinic is always contingent on a number of variables, the dearth of clinics and lawyers elevates the importance of selecting an area that is calculated to maximise the impact of student work. Despite a recent exponential increase in the number of attorneys in China, the critical shortage continues to hamper the vast majority of poor people from accessing the legal system. Students representing clients through clinics can make a measurable difference, both in terms of the actual number of clients benefiting from legal representation and the ripple effect to others who begin to see the legal system as a viable mechanism to vindicate rights.

A clinic designed to maximise its effectiveness in advancing social justice goals must tailor its structure to the climate on the ground. In China, ‘[g]iven the strong corporatist emphasis of China’s emergent civil society and attendant regulatory framework, [footnote omitted] this would seem to facilitate social and political embeddedness far more readily than the wholly autonomous institutions that characterise the American model.’ When they mirror China’s corporatist structure more generally, the corporatist clinical models have been more influential in promoting a culture of public interest lawyering than those models premised on the dominant U.S. paradigm. Associating with an exiting NGO is also a wise strategic consideration, given their relative ability to function independently.

China lacks a rich history of public interest lawyering, so a clinic’s ability to influence the ethos of students is critical. Exposing students to service opportunities that arouse and sustain a commitment to public interest work is invaluable. Students who use the law to make a measurable difference in the lives of individual clients can begin to develop a compelling vision of social justice that combats the tendency toward ‘legal nihilism.’

In contemplating the appropriate set of priorities and tactics, consulting with the stakeholders is imperative. Advocates and scholars are acknowledging ‘the validity of a bottom-up approach to human rights, in which human rights theory trickles up through interaction with real people, who have real problems, as opposed to “top-down thinking,” in which scholars hand down “mantras”.’

Previous international collaborations have clearly demonstrated that the most successful clinics are carefully planned with the full participation of partners in the host country, and pay close attention to details. Any partnership proposal should be prepared to make a sustained commitment to ongoing involvement with a clinic to bolster its chances of success.

The substantial impediments to social change advocacy heighten the importance of realistically assessing the viability of any particular clinical construct. One existing Chinese clinic possesses many positive and promising attributes that are consonant with the goals outlined above, and serves as an encouraging model of what is possible. Students enrolled in Peking University’s Qianxi clinic engage in a broad panoply of advocacy activities that are structured in a pedagogically sound, logical progression. In embracing idealistic goals, the clinic ‘is a highly ambitious project, not just for its scale, [citation omitted] but for its attempt to use Qianxi County as an experimental site to explore models of rule of law and self-governance at the grassroots of Chinese society.’ Many parallels are evident between the lawyering philosophy espoused by this clinic and recent scholarship and activism related to the evolving conceptions of social change lawyering in the U.S. Students participate in the clinic much as clinic students would in a U.S. litigation based model, by first using concrete lawyering skills to interact with and represent clients, and then engaging in consciousness raising and community mobilisation efforts. Using those experiences to reflect on what they have learned about law and legal institutions, the students apply these insights to consciousness raising and mobilisation efforts on the ground, utilising ‘macro-oriented activities including drafting community legislation and suggesting grass-roots legal reforms.’

Without doubt, resistance by the Chinese government may present unacceptable risks or erect insurmountable barriers to implementing a social justice clinical collaboration. If that is the case, this proposal provides a template for clinical initiatives in other countries that may be more amenable, or at least less antagonistic, to this type of partnership, and the model of transnational social justice collaborations can be applied elsewhere.