Civil Resistance Law and Constructive Program Law

Civil Resistance is... well... civil.  As in, non-violent, courteous, by citizens, and in pursuit of just ends.  It is a broad term used to define a wide range of obstructive activities that build support for and participation in the movement.  The goals can be anything from trying to change the way the general public behaves, trying to change an unjust law, to upholding social norms against usurpers.  At its heart, Civil Resistance is "non-cooperation with evil" and can be done daily in our everyday life with small acts of resistance.  Resistance can take many forms, I consider deviating from problematic norms in our daily lives to be just as important as the larger more confrontational acts.  More confrontational forms include Civil Disobedience and Satyagraha.  Historically, Civil Resistance is far more effective at producing good outcomes for society.  (Check out  the book Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict by Erica Chenoweth and Maria J. Stephan if you don't believe me)
A related topic is Constructive Program, which I think of as "cooperative with good," and which is deeply interconnected with Civil Resistance.  It involves building just ways of life from the ground up, building the community's capacity, and building just institutions.  I have been thinking quite a bit about how this would work with the housing and the campaign finance issues, which I will probably write about later.  

For the past few months I have been trying to figure out how to use create a private law practice that supports just causes and stays true to my activist roots.  I want to call this practicing "Civil Resistance Law" and "Constructive Program Law."  So to coin the terms, I am going to try to define them.
In this definition, I do not think that only an attorney could or should do this work, I think it would be a collective process with the group.  Anyway, here is my first attempt at defining what an attorney practicing Civil Resistance Law and Constructive Program Law would do.  After reviewing this, I ended up categorizing this list based on the steps for successful movements that Martin Luther King developed.

1. Investigation!  Understanding the situation we find ourselves in is essential to finding a workable strategy to win changes.

• Research and describe the legal landscape the group and/or movement finds itself in, focusing on the topics that people want to change.  Find cracks and opportunities in the law that the movement can leverage.
• Research and analyze existing institutions
• Research the political landscape and help develop an understanding of how it fits into the legal landscape.  
• Help research the history of this issue and look for insights.  
• Research alternatives to what exists. 

2. Educate public, build support, and make a personal commitment.

• Help the group find resources.
• Distill the legal issues into easily understood explanations and parables.

3. Develop strategies based on the investigation.

• Imagine what changes to the law would bring about the group's goals, and what the details of the law would be.   
• Consider all of the findings of the investigation and help develop a strategy to achieve the goals of the group.
• Develop campaigns, campaign goals, and campaign sequence to achieve larger strategic goals.

4. Discuss options with opponents and negotiate

• Help develop strategies to build support and organizational capacity.
• Develop a negotiation strategy and fit it into the larger strategy.
• Develop and provide access to the system and officials.
• Help negotiate.

5. When negotiations inevitably break down

• Help develop escalation tactics.
• If the group wants to break the law, advise them what will happen if they do.  Note that legal ethics require that an attorney not advise clients to break the law, but may describe what will happen if they do.  The only exception to this is where the client wants to make a good faith challenge to the validity of the law (California Bar Professional Ethics Rule 3-210).  So ensuring compliance with ethics rules is something to always be aware of.
• Provide legal support for the group when they are arrested, and connect them with additional attorneys who can help.     

6. Reconciliation and change implementation

• Help develop a face-saving out for the opponent.  There are lots of advantages to this strategy, which I will probably discuss in a later post.
• Facilitate an agreement and reconciliation between the sides.  There will often need to be a lasting relationship, so an us v them mentality is not helpful.  
• Helping draft the legal changes and legal requirements.
• Ensure that enforcement options exist to enforce the changes and monitor compliance.

7.  Reflect and Repeat!

• Reflect on the campaign and how it worked.
• Go back to step one and start investigating for another campaign
• Help revise longterm strategy as necessary.  

I also think that the principles of Rebellious Lawyering are essential to this kind of practice of law, such as the emphasis on community leadership and problem-solving.   Anyway, that is what I have thought of so far, let me know what you think!

The Small Acts of Kindness and Resistance

I want to reiterate what I wrote in 2008 in my The Small Things in Life post, about the small things in life being very important.  Small acts of kindness are the lifeblood of society and really make it work.  Without those acts of kindness, I think things would completely fall apart.  I want to see movements really start to use this hidden power, to do small acts of kindness as a central part of the process of changing society.

The Roman Empire was taken over by the Christians for many reasons, but I think the emphasis of early Christianity on being kind and giving to all was one of the main factors.  They helped plague victims when no one else would.  They lifted up the poor and helped those had lost their livelihoods.  Indeed, they became a poor people's movement and really disrupted the traditional society.  The only way the state could overcome them was to embrace them and set up a strict hierarchy (Constantine... sigh).  

I can only imagine how despairing the situation of early Christians must have seemed.  They were routinely tortured and crucified, killed because they persisted in living a different way.  The Roman Empire spanned the entire world they knew about, and there was no escaping it.  It must have seemed indomitable.  Yet they still continued doing those small acts of kindness and resistance.  The love and kindness they showed to the world was so contrary to the political status quo, and so surprisingly disruptive.  The Roman legal system was focused on property and not on people, prioritizing protection of property.  It was often up to the local authorities whether or not to persecute Christians, and they often did so in response to agitation from the public.  The public did not like the Christian emphasis on personal religion and their boycott of the pagan rituals that the public saw as essential to maintain the order of the universe.  As time went on though, Christians gained a reputation for being kind and giving.  I suspect killing Christians started to cause some cognitive dissonance among the public, should they kill people who act so kindly to strangers?  

Another fascinating aspect of this is how the official punishment was undermined as an effective tool.  Death was the usual punishment for righteous Christians, but more and more kept showing up to be killed.  The Roman magistrates even had to make a distinction between solicited martyrs and persecuted martyrs... they refused to kill solicited martyrs.  Can you imagine our court system refusing to punish people who willingly admit they broke the law?  That would be quite an interesting situation.  I think the number of people who were willing to step up and be killed shows both how powerful the message of kindness and love was and how deeply it was a resistance to the status quo.  Love and anger are the major emotional motivators, and early Christians figured out a way to combine love for each other with resistance to an unjust society.  It is an amazing feat.  They were so effective that they took over the empire.  All from the power of small individual acts and a willingness to suffer for their ideals.    

There is a great power in small acts.  With time they will win over a hostile public, and I can think of no other force that can change the inertia of a society so effectively.  

Campaign Finance and Kai Arrested at the Supreme Court

I'm going to start this blog up again.  I'm planning on blogging on a mix of topics, including legal analysis and my dreams for ways to build better institutions.  I would like to start off by talking about campaign finance and a friend of mine who was arrested for speaking during the oral argument for the Supreme Court case McCutcheon v FEC.  This case involves a conservative businessman from Alabama suing the FEC to try to lift restrictions on his ability to give money to political candidates and parties.  Here is an article on the case and its effects.  I am hopeful that the Supreme Court will not overturn 40 years of precedent, but it is a possibility.  I'm of the opinion that the system is already so broken that, while this would certainly be a step in the wrong direction and have an impact, the overall tenor of the system would be the same... money controls politics.

Anyway, my friend, Kai, was arrested for speaking during court. Here is a Washington Post article on it.  Here is the video of him, a video that is also not allowed to have been taken in the court.  There is a real problem in our society when you are arrested for speaking out of turn but you can legally bribe politicians.  We are a part of 99Rise, which is a movement of people against government corruption.

I have been thinking about the social system of campaigns and campaign finance, and I wish there was a way to change it that did not undermine first amendment rights.  I disagree with the effect Citizen's United has had, it has extended the reach of big money.  And at the same time I would rather expand the right to free speech and change the campaign system in another way that limits how actors behave than do a frontal assault on the logic of Citizen's United and other free speech.  Attacking free speech is a slippery slope, the 1920s saw ridiculous restrictions on speech that I would never want to see happen again.

Just to be clear, I do not think money is speech.  The conduct of spending money may have speech dimensions, but I think it is more akin to commerce than speech.  I think we should consider how we can put restrictions on the flow of money using the commerce clause and in contracts law in such a way that it would be hard to claim that it limits speech.  Hopefully more ideas on how to do that later.