Face-ing the other: An ethics of encounter and solidarity in legal services practice

Fordham Law Review

Volumn 67, Issue 5, 1999, Pages 2071-2121

  Failinger, Marie A ^a  

^a NONE

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EID: 0033433845     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (229)

1. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
2. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
3. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
4. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
5. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
6. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
7. For a small sampling of these discussions, see, for example, Spiro T. Agnew, What's Wrong with the Legal Services Program, 58 A.B.A. J. 930, 931 (1972) (arguing that LSC is manned "by ideological vigilantes, who owe their allegiance not to a client . . . but only to a concept of social reform"); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 384-90 (1978) (arguing that Legal Services lawyers should largely be held to the same standards as lawyers for others in the short run, but suggesting that the bar should modify unfairness in its ethical rules supporting the worst abuses of the adversary system); Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 282, 344-52 (1982) (arguing for a deontological/client-oriented, rather than utilitarian/group-oriented, right to effective access to the courts, including legal assistance); Roger C. Cramton, Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521, 531-51 (1981) (refuting charges that LSC is a redistributive political instrument for activist lawyers rather than a poor people's program and that it is inefficient; also, describing possible effects of funding and authorization attacks by the Reagan administration); Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 683 (1976) (arguing that the LSC needs to be sheltered from political interference, based on the history of the Office of Economic Opportunity's Legal Services program and LSC Act developments); Geoffrey C. Hazard, Jr., Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242, 242-44, 250-52 (1970) (arguing that law-reform litigation is a largely inadequate means of redistributing income or power to the poor, but that legislative activity is also difficult); James B. Pearson, To Protect the Rights of the Poor: The Legal Services Corporation Act of 1971, 19 U. Kan. L. Rev. 641, 647-50 (1971) (arguing for the need for the LSC to be independent).
8. Anthony Cook's attempt to describe the critical ideal as Martin Luther King, Jr.'s Beloved Community is unusual in that it embraces a theological vision, which anticipates that a relationship with God will manifest itself in love for the suffering, most particularly "the conversion of all social institutions and practices that maintained and reproduced poverty, racial oppression, and other social ills." Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., 103 Harv. L. Rev. 985, 1026 (1990) (footnote omitted). Nevertheless, I think it fair to use the language because it poetically captures the longing of critical scholars for relationship and harmony, interpersonally and socially, as well as the specific program on which many are focused.
9. Cf. Louise G. Trubek, The Worst of Times . . . and the Best of Times: Lawyer-ing for Poor Clients Today, 22 Fordham Urb. L.J. 1123, 1133-36 (1995) (suggesting that post-modern discussions have had practical outcomes, i.e., the traditional LSC conflict between service and law-reform has been deconstructed, the López model of "rebellious lawyering" has brought new skills to bear on client problems, and "fem-crits" and "race-crits" have refocused lawyering attention on self-sufficiency and entrepreneurship strategies for low-income women and minorities).
10. See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533, 534-35 (1992) (arguing that "socially subordinated groups," including "socially powerless" poor black women tenants, are excluded from legal system procedures and protections and silenced by courtroom dynamics); Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861, 911-14 (1992) (arguing that legal discourse suppresses and forcibly shapes poor people's stories); Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. Miami L. Rev. 983, 984-85 (1994) [hereinafter Trubek, Lawyering] (describing how Critical Legal Services has shown that law can "subordinate or legitimate the subordination of marginalized persons"); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 4 (1990) [hereinafter White, Mrs. G.] (advocating adoption of the perspective of marginalized groups and uncovering the construction of socially subordinated persons' speech as inferior).
11. See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533, 534-35 (1992) (arguing that "socially subordinated groups," including "socially powerless" poor black women tenants, are excluded from legal system procedures and protections and silenced by courtroom dynamics); Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861, 911-14 (1992) (arguing that legal discourse suppresses and forcibly shapes poor people's stories); Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. Miami L. Rev. 983, 984-85 (1994) [hereinafter Trubek, Lawyering] (describing how Critical Legal Services has shown that law can "subordinate or legitimate the subordination of marginalized persons"); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 4 (1990) [hereinafter White, Mrs. G.] (advocating adoption of the perspective of marginalized groups and uncovering the construction of socially subordinated persons' speech as inferior).
12. See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533, 534-35 (1992) (arguing that "socially subordinated groups," including "socially powerless" poor black women tenants, are excluded from legal system procedures and protections and silenced by courtroom dynamics); Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861, 911-14 (1992) (arguing that legal discourse suppresses and forcibly shapes poor people's stories); Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. Miami L. Rev. 983, 984-85 (1994) [hereinafter Trubek, Lawyering] (describing how Critical Legal Services has shown that law can "subordinate or legitimate the subordination of marginalized persons"); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 4 (1990) [hereinafter White, Mrs. G.] (advocating adoption of the perspective of marginalized groups and uncovering the construction of socially subordinated persons' speech as inferior).
13. See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533, 534-35 (1992) (arguing that "socially subordinated groups," including "socially powerless" poor black women tenants, are excluded from legal system procedures and protections and silenced by courtroom dynamics); Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861, 911-14 (1992) (arguing that legal discourse suppresses and forcibly shapes poor people's stories); Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. Miami L. Rev. 983, 984-85 (1994) [hereinafter Trubek, Lawyering] (describing how Critical Legal Services has shown that law can "subordinate or legitimate the subordination of marginalized persons"); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 4 (1990) [hereinafter White, Mrs. G.] (advocating adoption of the perspective of marginalized groups and uncovering the construction of socially subordinated persons' speech as inferior).
14. Indeed, the nature of poverty-law ethical writings has changed focus from the concern that lawyers will take advantage of their clients' disadvantage and vulnerability by making paternalistic decisions for them, see, e.g., Bellow & Kettleson, supra note 1, at 340-42, 356-62, to arguments that lawyers discount their clients' wisdom, knowledge, or skills in handling their situations, see, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2127 (1991) [hereinafter Alfieri, Reconstructive Poverty]; White, Mrs. G., supra note 4, at 45-46.
15. Anthony V. Alfieri, Impoverished Practices, 81 Geo. L.J. 2567, 2611 (1993) [hereinafter Alfieri, Impoverished Practices]. For Alfieri, however, the exile-motif does not describe a reality so much as the "arrogant perception" of "distance between 'me' and 'the other'" with "me" as a "subject to myself with my own perceptions, motivations, and interests." Id. at 2611 n.195 (citation omitted); see also Joel F. Handler, Law and the Search for Community 22 (1990) [hereinafter Handler, Search for Community] (describing Bachrach's and Baratz's view that the "second face" of power operates to exclude participants and issues as well as to determine who gets to decide).
16. Anthony V. Alfieri, Impoverished Practices, 81 Geo. L.J. 2567, 2611 (1993) [hereinafter Alfieri, Impoverished Practices]. For Alfieri, however, the exile-motif does not describe a reality so much as the "arrogant perception" of "distance between 'me' and 'the other'" with "me" as a "subject to myself with my own perceptions, motivations, and interests." Id. at 2611 n.195 (citation omitted); see also Joel F. Handler, Law and the Search for Community 22 (1990) [hereinafter Handler, Search for Community] (describing Bachrach's and Baratz's view that the "second face" of power operates to exclude participants and issues as well as to determine who gets to decide).
17. It is, of course, the task of post-modernism to come up with a vision of how our lives could be, launched from a re-vision of this understanding about how our lives in fact are. My point is only that if one would ask individuals what they predominantly experience as their lives, many would still give the modern answer: We are atoms in an indifferent universe.
18. See Jane Jacobs, The Death and Life of Great American Cities 31-41 (1961).
19. Joel Handler notes that "minority crits" have argued, with liberals, that autonomy is a necessary precondition for participation in society. Joel F. Handler, "Constructing the Political Spectacle": The Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History, 56 Brook. L. Rev. 899, 961-62 (1990) [hereinafter Handler, Political Spectacle].
20. I do not propose to re-phrase Levinas's argument, made most directly in Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority 194-219 (Alphonso Lingis trans., 1969). In addition to my differences with his argument, it is complex beyond the scope of this Article (and, I fear, my complete understanding!). However, Levinas's images and claims usefully and dramatically re-imagine the relationship with the Other.
21. Alfieri claims that modernism gives rise to a formalist and instrumentalist vision of lawyering practice, both having foundational assumptions. See Alfieri, Impoverished Practices, supra note 6, at 2574-75. Formalists claim "neutral and purposive discretion," the "capacity to discover objective truth," a "belief in empathy as a means of understanding" the other, and the determinacy of sociolegal contexts. Id. Instrumentalists argue for "purposivist exercise" of lawyering discretion, endorse a provisional understanding of truth found through practical reasoning, and argue for translation as a method of "normatively enlightening others." Id. They believe that sociolegal contexts are relatively indeterminate, functioning unstably in an arena of loosely constrained choice, objectivity, empathy, and determinacy, driven by the assumptions of autonomy and cognitive capacity (including the capacity to discover objective truth for formalists). See id.
22. See Handler, Political Spectacle, supra note 9, at 959-65 (criticizing the Critical Legal Studies ("CLS") position that civil-rights law is socially constructed to reflect the interests of the powerful, and "mystify and pacify the oppressed," thus making the position of minorities worse). Handler claims that CLS argues that "there is no such thing as objective, neutral legal rules." Id. at 959.
23. Gary L. Blasi, What's a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 U. Miami. L. Rev. 1063, 1077-78 (1994).
24. Levinas, supra note 10, at 21. Levinas's particular context for this remark is his shaken admission that "[t]he state of war suspends morality; it divests the eternal institutions and obligations of their eternity . . . . [Yet,] [t]he art of foreseeing war and of winning it by every means - politics - is henceforth enjoined as the very exercise of reason." Id. If the politics of war, which obliterates the authentic actions of moral people, and instead "mak[es] them carry out actions that will destroy every possibility for action," is indeed reasonable, then the justification of its opposite, morality, through "rational" means becomes problematical. Id.
25. See, e.g., Blasi, supra note 13, at 1082, 1087 (arguing that post-modern poverty lawyers should not abandon theory). Blasi asserts that theory is necessary to look for "structure or explanation above the level of local narrative," to see order in otherwise meaningless "noise." Id. at 1087 (footnote omitted). He encourages poverty lawyers to speak to each other about "things that are otherwise nearly impossible to verbalize." Id. at 1082.
26. 1 Richard Rorty, Objectivity, Relativism and Truth: Philosophical Papers 21 (1991).
27. Id. at 22.
28. Id. at 22-23.
29. Todd May, Reconsidering Difference: Nancy, Derrida, Levinas, and Deleuze 30 (1997) (describing Jean-Luc Nancy's arguments about organic communities).
30. Levinas, supra note 10, at 21.
31. May, supra note 19, at 30-31. Nancy notes that since the imaginary community was indeed not immanent, everyone was potentially subject to extermination, so that Nazism was, in fact, suicidal. See id.
32. Johann-Baptist Metz, Freedom in Solidarity: The Rescue of Reason, in Faith and the Future: Essays on Theology, Solidarity, and Modernity 72, 72-73 (Johann-Baptist Metz & Jürgen Moltmann eds., 1995).
33. This is the argument (the fact scenario is my construction) that Charles Fried makes in his famous essay, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060, 1068-71, 1077-78 (1976). Most commentary on the essay has revolved around Fried's discussion of the use of immoral means to vigorously represent clients; it is often forgotten that Fried uses the same argument to justify the choice of clients in the first place. Fried suggests that the absolute discretion to choose clients is limited, but only in exceptional cases: i.e., a client whose needs fit his particular capabilities and who could not otherwise find counsel, or a case where the lawyer was appointed by the court to represent a criminal defendant, again one who could not find other counsel. See id. at 1078-79.
34. Id. at 1069.
35. William H. Simon describes this case in Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 Md. L. Rev. 213, 214-16 (1991) [hereinafter Simon, Mrs. Jones].
36. Id. at 214.
37. See id.
38. Id.
39. Id.
40. See id.
41. Id.
42. See id. at 215.
43. Id.
44. Id.
45. Id. at 216.
46. See id.
47. This is the story of Lucie White's Mrs. G., from White's point of view in White, Mrs. G., supra note 4, at 22-24.
48. Id. at 22.
49. Id.
50. Id. at 23-24.
51. Id. at 24.
52. Id. at 31.
53. Anthony V. Alfieri, Practicing Community, 107 Harv. L. Rev. 1747, 1747 (1994) [hereinafter Alfieri, Practicing Community] (reviewing Gerald P. López, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992)) (recounting Alfieri's own experience).
54. Id. at 1748.
55. Id. at 1747-48.
56. Id. at 1748.
57. Fried, supra note 23, at 1071-73.
58. For this description of Rawlsian deliberation, see Susan G. Kupfer, Authentic Legal Practices, 10 Geo. J. Legal Ethics 33, 77-81 (1996). As one example, Fried argues, "[i]f I claim respect for my own concrete particularity, I must accord that respect to others," thus giving the lawyer some responsibility not to create a relationship of harm with his client's adversary. Fried, supra note 23, at 1083.
59. Fried several times decries the utilitarian treatment of both lawyer and client as means rather than ends, claiming that asking a lawyer to expand his talents where they will do the most good says "to the lawyer that he is merely a scarce resource. But a person is not a resource." Fried, supra note 23, at 1078.
60. See Kupfer, supra note 48, at 77-78.
61. Id. at 78.
62. See supra notes 25-36 and accompanying text.
63. See generally William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083, 1083 (1988) [hereinafter Simon, Ethical Discretion] (arguing that lawyers should have discretion in choosing which clients to represent and how to represent them).
64. See, e.g., David Luban, Lawyers and Justice: An Ethical Study at xviii (1988) (discussing the ethical problems lawyers face in client representation).
65. See Simon, Ethical Discretion, supra note 53, at 1090-91. This kind of argument, relying on norms internal to the legal system, see id., is somewhat different from David Luban's claim that lawyers should directly confront moral concerns extrinsic to law, see Luban, supra note 54, at 160-61.
66. Simon, Mrs. Jones, supra note 25, at 217-18.
67. See supra notes 37-42 and accompanying text.
68. See supra Part I.B.4.
69. Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics", 81 Geo. L.J. 2533, 2533 (1993).
70. See Levinas, supra note 10, at 203, 290-91 (stating that the face "arrests and paralyzes my violence by his call, which does not do violence, and comes from on high").
71. For examples of scholars that have put different labels to the themes that I am covering with "dialogical praxis," including a humanist vision of procedural justice, see White, Mrs. G., supra note 4, at 2-3; and for dialectics or dialectical praxis, see Handler, Political Spectacle, supra note 9, at 962-63 (reviewing Elizabeth Schneider's work on "dialogical praxis"), and Trubek, Lawyering, supra note 4, at 993 (discussing objections to "situational and theoretical practice").
72. See, e.g., Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 44 n.3 (1994) (analogizing Fried's friend to the "hired gun" lawyer); Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 640 (criticizing Fried for defining a friend as an agent or extension of the self for one's own purpose); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 81 (1980); William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 30, 108-09 [hereinafter Simon, Ideology of Advocacy] (comparing Fried's "friend" to a Sunoco dealer). Levinson instead offers the Platonic definition of a friend as a person "of the same character, who agrees with [one's] tastes and dislikes." Levinson, supra, at 640 (quoting Plato, Gorgias *510c (alteration in orginal)).
73. See, e.g., Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 44 n.3 (1994) (analogizing Fried's friend to the "hired gun" lawyer); Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 640 (criticizing Fried for defining a friend as an agent or extension of the self for one's own purpose); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 81 (1980); William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 30, 108-09 [hereinafter Simon, Ideology of Advocacy] (comparing Fried's "friend" to a Sunoco dealer). Levinson instead offers the Platonic definition of a friend as a person "of the same character, who agrees with [one's] tastes and dislikes." Levinson, supra, at 640 (quoting Plato, Gorgias *510c (alteration in orginal)).
74. See, e.g., Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 44 n.3 (1994) (analogizing Fried's friend to the "hired gun" lawyer); Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 640 (criticizing Fried for defining a friend as an agent or extension of the self for one's own purpose); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 81 (1980); William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 30, 108-09 [hereinafter Simon, Ideology of Advocacy] (comparing Fried's "friend" to a Sunoco dealer). Levinson instead offers the Platonic definition of a friend as a person "of the same character, who agrees with [one's] tastes and dislikes." Levinson, supra, at 640 (quoting Plato, Gorgias *510c (alteration in orginal)).
75. See, e.g., Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 44 n.3 (1994) (analogizing Fried's friend to the "hired gun" lawyer); Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 640 (criticizing Fried for defining a friend as an agent or extension of the self for one's own purpose); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 81 (1980); William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 30, 108-09 [hereinafter Simon, Ideology of Advocacy] (comparing Fried's "friend" to a Sunoco dealer). Levinson instead offers the Platonic definition of a friend as a person "of the same character, who agrees with [one's] tastes and dislikes." Levinson, supra, at 640 (quoting Plato, Gorgias *510c (alteration in orginal)).
76. See, e.g., Ashe, supra note 59, at 2541 (challenging Fried's willingness to bracket or subordinate the lawyer's values as advocacy of "surrender to a state of resignation that comes as close as any human choice can to what we might tend to call 'relativism'").
77. Thomas L. Shaffer coined this phrase in The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963, 970 (1987); see also Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J, Contemp. Health L. & Pol'y 47, 48 (1994) (arguing that autonomy has been distorted from its original meaning into a principle of non-interference. In the original, autonomy is as a "right of persons to freedom of conscience and . . . respect as agents capable of making their own judgments in accord with universal moral principles"). But see Handler, Search for Community, supra note 6, at 15 (defining autonomy, citing ethicists Tom Beauchamp and William Connolly, as "being one's own person" and having the capacity for self-governance, including "a stable system of values and goals, the ability to understand facts, and a capacity for reasoning, intelligent deliberation, and self-reflection").
78. Thomas L. Shaffer coined this phrase in The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963, 970 (1987); see also Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J, Contemp. Health L. & Pol'y 47, 48 (1994) (arguing that autonomy has been distorted from its original meaning into a principle of non-interference. In the original, autonomy is as a "right of persons to freedom of conscience and . . . respect as agents capable of making their own judgments in accord with universal moral principles"). But see Handler, Search for Community, supra note 6, at 15 (defining autonomy, citing ethicists Tom Beauchamp and William Connolly, as "being one's own person" and having the capacity for self-governance, including "a stable system of values and goals, the ability to understand facts, and a capacity for reasoning, intelligent deliberation, and self-reflection").
79. See Pellegrino, supra note 64, at 50-53 (arguing that the medical profession has wrongfully accepted a conflict between beneficence and autonomy to avoid paternalism); see also Paul J. Zwier & Dr. Ann B. Hamric, The Ethics of Care and Relmagining the Lawyer/Client Relationship, 22 J. Contemp. L. 383, 392 (1996) (arguing that a client-centered approach may still be self-interested because it incorporates the lawyer's interest in financial remuneration and independence).
80. See Zwier & Hamric, supra note 65, at 390-91, 406-07, 421 (arguing, in the context of a case about husband and wife wills, that the family relationship creates the promises, contracts, consent and harmony which bind members of the family; it is not the consent and promises of autonomous individuals which create the family). Alternatively, Levinson suggests that the protection of certain relationships "emphasizes the self as importantly social . . . . the constitutive role of community membership in defining what it means to be a genuine self." Levinson, supra note 62, at 641 & n.31; see also Cook, supra note 2, at 1007 (arguing that alienation is socially produced, and the natural inclination of individuals is for connection with others, a mutual acknowledgment of humanity and empowerment).
81. Levinson, supra note 62, at 635.
82. Id. at 641.
83. See George P. Fletcher, Loyalty: An Essay on the Morality of Relationships 7 (1993). But see Benjamin E. Rosenberg, Quando Fidelis?: Drawing the Line Between Loyalty and Impartiality, 82 Cal. L. Rev. 717, 718 (1994) (reviewing George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (1993)) (criticizing Fletcher's arguments as "transparent tools that reflect [his] own biases and political orientation"). Fletcher notes that loyalty feelings "raise the cost of exit by exacting a psychological price. . . . [I]t serves a rational purpose of ensuring, in Eric Erikson's bon mot, that people 'actively stay put.'" Fletcher, supra, at 5.
84. See George P. Fletcher, Loyalty: An Essay on the Morality of Relationships 7 (1993). But see Benjamin E. Rosenberg, Quando Fidelis?: Drawing the Line Between Loyalty and Impartiality, 82 Cal. L. Rev. 717, 718 (1994) (reviewing George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (1993)) (criticizing Fletcher's arguments as "transparent tools that reflect [his] own biases and political orientation"). Fletcher notes that loyalty feelings "raise the cost of exit by exacting a psychological price. . . . [I]t serves a rational purpose of ensuring, in Eric Erikson's bon mot, that people 'actively stay put.'" Fletcher, supra, at 5.
85. Fletcher, supra note 69, at 5.
86. See Simon, Ideology of Advocacy, supra note 62, at 108.
87. See Fletcher, supra note 69, at 16-17.
88. See Simon, Ideology of Advocacy, supra note 62, at 108-09.
89. See Shaffer & Cochran, supra note 62, at 45 (quoting Robert N. Bellah et al., Habits of the Heart: Individualism and Commitment in American Life 115 (1985)).
90. See Fletcher, supra note 69, at 15 (referring to Martin Buber's and Immanuel Kant's formulations); Simon, Ideology of Advocacy, supra note 62, at 108 (referring to Aristotle's formulation).
91. Fletcher, supra note 69, at 25.
92. See Ashe, supra note 59, at 2542 & n.20 (pointing out Fried's own admission that there is a lack of reciprocity in the lawyer-client relationship, and raising the question of whether a lawyer's zealous representation of the client's position may enforce client victimization rather than foster friendship between the lawyer and the client).
93. Fletcher, supra note 69, at 8.
94. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development 18-22 (1982).
95. Rosenberg suggests a partial resolution of this conflict by placing greater importance on chosen rather than inherited loyalties, thus respecting people's individual autonomy, though not resolving all conflicts between loyalty and impartiality. Rosenberg, supra note 69, at 726, 738. He notes that Levinson's proposal that people be assigned evidentiary "privilege tickets" similarly prefers self-chosen relationships. See id. at 728-29. By contrast, Rosenberg sees Fletcher as privileging status-based relationships or natural bonds, such as mother-infant ties. See id.
96. Fletcher, supra note 69, at 11; see Rosenberg, supra note 69, at 718-20 (arguing that both utilitarianism and liberalism can justify the value of loyalty, the latter justifying loyalties as a means to advance fundamental equalities). Fletcher, in fact, qualifies the cases in which partiality, rather than justice, is appropriate, arguing that there are higher and lower loyalties, and that in some social institutions, "universal and impartial principles" should prevail. Fletcher, supra note 69, at 154-55, 162-65.
97. Fletcher, supra note 69, at 7.
98. Id.
99. See, e.g., Mary Jeanne Larrabee, Gender and Moral Development: A Challenge for Feminist Theory, in An Ethic of Care: Feminist and Interdisciplinary Perspectives 3, 5 (Mary Jeanne Larrabee ed., 1993) (stating that Gilligan's work "trumpets aspects of women's experience found defective, deficient, or undervalued by the broader culture").
100. See Owen Flanagan & Kathryn Jackson, Justice, Care, and Gender: The Kohlberg-Gilligan Debate Revisited, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 69, 71 (discussing that research suggests that women and men distribute themselves bimodally on a justice-care scale); Catherine G. Greeno & Eleanor E. Maccoby, How Different Is the "Different Voice"?, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 193, 194-95 (noting that studies show no differences in adult male-female scores on the Kohlberg scale, but do show educational differences); Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism, and Legal Ethics, 2 Va. J. Soc. Pol'y & L. 75, 81- 82 (1994) [hereinafter Menkel-Meadow, Portia Redux] (stating that girls and boys show the ability to shift between rights and care ethics, though they may start with a particular "default" focus).
101. See Owen Flanagan & Kathryn Jackson, Justice, Care, and Gender: The Kohlberg-Gilligan Debate Revisited, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 69, 71 (discussing that research suggests that women and men distribute themselves bimodally on a justice-care scale); Catherine G. Greeno & Eleanor E. Maccoby, How Different Is the "Different Voice"?, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 193, 194-95 (noting that studies show no differences in adult male-female scores on the Kohlberg scale, but do show educational differences); Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism, and Legal Ethics, 2 Va. J. Soc. Pol'y & L. 75, 81- 82 (1994) [hereinafter Menkel-Meadow, Portia Redux] (stating that girls and boys show the ability to shift between rights and care ethics, though they may start with a particular "default" focus).
102. See Owen Flanagan & Kathryn Jackson, Justice, Care, and Gender: The Kohlberg-Gilligan Debate Revisited, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 69, 71 (discussing that research suggests that women and men distribute themselves bimodally on a justice-care scale); Catherine G. Greeno & Eleanor E. Maccoby, How Different Is the "Different Voice"?, in An Ethic of Care: Feminist and Interdisciplinary Perspectives, supra note 84, at 193, 194-95 (noting that studies show no differences in adult male-female scores on the Kohlberg scale, but do show educational differences); Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism, and Legal Ethics, 2 Va. J. Soc. Pol'y & L. 75, 81-82 (1994) [hereinafter Menkel-Meadow, Portia Redux] (stating that girls and boys show the ability to shift between rights and care ethics, though they may start with a particular "default" focus).
103. See Larrabee, supra note 84, at 4; Shaffer & Cochran, supra note 62, at 75.
104. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665, 2668 (1993); see also Zwier & Hamric, supra note 65, at 386-87 (defining care as "apprehend[ing] the other's reality, feeling what he feels as nearly as possible," which is a way of describing empathy (footnote omitted)).
105. See Zwier & Hamric, supra note 65, at 384-87.
106. See Ellman, supra note 87, at 2685; Menkel-Meadow, Portia Redux, supra note 85, at 78-80.
107. See, e.g., Ashe, supra note 59, at 2555 (castigating the lawyer-as-friend model for disregarding injuries to third persons, such as the child of an abusive or neglectful mother, and offering little opportunity for the family). The care model even makes it possible to conceive of client autonomy as a different duty, i.e., not simply non-interference with the client's decisions, as Fried would have it, but as the responsibility to cooperate and assist clients in "mak[ing] rational judgments about their own lives, choices, and interests." Pellegrino, supra note 64, at 48-49.
108. Carrie Menkel-Meadow, Is Altruism Possible in Lawyering, 8 Ga. St. U. L. Rev. 385, 389 (1992) (citing Lauren Wispé, Toward an Integration, in Altruism, Sympathy and Helping (1978)). Carrie Menkel-Meadow attributes the term, and this definition, of altruism to nineteenth century sociologist August Comte. See id. at 388-89.
109. Carrie Menkel-Meadow, Is Altruism Possible in Lawyering, 8 Ga. St. U. L. Rev. 385, 389 (1992) (citing Lauren Wispé, Toward an Integration, in Altruism, Sympathy and Helping (1978)). Carrie Menkel-Meadow attributes the term, and this definition, of altruism to nineteenth century sociologist August Comte. See id. at 388-89.
110. Id. at 389.
111. See id. at 389-90. Menkel-Meadow defines empathy as a form of understanding that includes both cognitive and affective bases of knowing but does not necessarily give rise to acts or behavior[ ]. . . . Not all empathy (care and concern for the other) will lead to action (altruism), yet some emotional correlate such as empathy, may be associated with an altruistic act. Id. at 389.
112. Zwier & Hamric, supra note 65, at 387 (footnotes omitted); see Carrie MenkelMeadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39, 43-44, 48 (1985) [hereinafter Menkel-Meadow, Portia].
113. Zwier & Hamric, supra note 65, at 388.
114. Id.; see also Menkel-Meadow, Portia, supra note 94, at 55 (positing that female attorneys emphasize more collective and interpersonal aspects of lawyering).
115. Zwier & Hamric, supra note 65, at 402.
116. Compare Kupfer, supra note 48, at 86-90 (focusing on the necessary elements of intersubjective communication, reciprocity, justification by reasons, consensus, and reflexivity in communicative ethics), with Zwier & Hamric, supra note 65, at 400-03 (highlighting a more "holistic" and "particularistic" approach in giving legal counsel).
117. See Zwier & Hamric, supra note 65, at 410.
118. See Menkel-Meadow, Portia, supra note 94, at 62.
119. See Ellmann, supra note 87, at 2668-70.
120. Id. at 2681-82, 2687.
121. Id. at 2686 (emphasis added) (footnote omitted). Ellmann here suggests that caring lawyers need not select clients whose "aspirations or personalities themselves embody caring values," an argument for selecting unpopular clients that parallels Fried's. Id.
122. See Gilligan, supra note 79, at 74 (describing the care ethicist's move from selfishness to self-sacrifice to universalizing the "principle" of care).
123. See id. at 2; see also Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 Cal. L. Rev. 61, 76 (1996) (discussing the theory that people do not empathize with those whose plight they considered normal for the sufferers, such as starving Third Worlders, but do empathize with people like themselves who suffer similar unexpected harms); Ellen C. DuBois et al., Feminist Discourse, Moral Values and the Law - A Conversation, 34 Buff. L. Rev. 11, 58-59 (1985) (noting Gilligan's argument that most people have both rights and care orientations, though people might focus on justice or care in defining or resolving moral problems, with most men focusing on justice, and women dividing between justice and care).
124. See id. at 2; see also Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 Cal. L. Rev. 61, 76 (1996) (discussing the theory that people do not empathize with those whose plight they considered normal for the sufferers, such as starving Third Worlders, but do empathize with people like themselves who suffer similar unexpected harms); Ellen C. DuBois et al., Feminist Discourse, Moral Values and the Law - A Conversation, 34 Buff. L. Rev. 11, 58-59 (1985) (noting Gilligan's argument that most people have both rights and care orientations, though people might focus on justice or care in defining or resolving moral problems, with most men focusing on justice, and women dividing between justice and care).
125. Dubois et al., supra note 105, at 58 (stating that Gilligan argues that gender is physiological/biological, psychological, and cultural).
126. Luban defines moral activism as "a vision of law practice in which the lawyer who disagrees with the morality or justice of a client's ends does not simply terminate the relationship, but tries to influence the client for the better." Luban, supra note 54, at 160.
127. Simon argues that lawyers "should have [the] ethical discretion to refuse to assist in the pursuit of legally permissible courses of action and in the assertion of potentially enforceable legal claims." Simon, Ethical Discretion, supra note 53, at 1083. He further argues that "reflective
128. Paul R. Tremblay, for instance, has argued that Luban's moral activist model might be problematical in a poverty practice setting, where the private practice incentives to minimize client overreaching and betrayal are not sufficiently countered by the lawyer's ideological zeal; while Simon's "purposivist" model might result in conservative poverty-lawyering, and his "justice" approach might counsel for a traditional non-accountability approach by the lawyer. See Paul R. Tremblay, Practiced Moral Activism, 8 St. Thomas L. Rev. 9, 53-64 (1995).
129. See Ellman, supra note 87, at 2677-79. But see Zwier & Hamric, supra note 65, at 388 (arguing that the care perspective protects against either the lawyer's impingement on the client's autonomy, or the client, as autonomous rights-seeker, impinging on the lawyer's moral integrity).
130. See Delgado, supra note 105, at 70; Lucie E. White, Seeking ". . . The Faces of Otherness . . .": A Response to Professors Sarat, Felstiner, and Cahn, 77 Cornell L. Rev. 1499, 1508 (1992) [hereinafter White, Seeking].
131. See Alfieri, Impoverished Practices, supra note 6, at 2613-14.
132. Delgado, supra note 105, at 68, 73-74.
133. Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1271-72 (1993) (quoting David Binder et al., Lawyers as Counselors: A Client Centered Approach 40 (1991)).
134. Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1271-72 (1993) (quoting David Binder et al., Lawyers as Counselors: A Client Centered Approach 40 (1991)).
135. See Handler, Political Spectacle, supra note 9, at 962 (citing Elizabeth Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. Rev. 589, 599 (1986)). Even while many dialogical praxis ethicists disagree about a range of issues from the validity of client narrative as a way of making strategic decisions to the place of rights, most of them share the belief that law is a form of social construction or theory of reality. See id. at 958-59, 968; see also David E. Van Zandt, The Relevance of Social Theory to Legal Theory, 83 Nw. U. L. Rev. 10, 26 (1989) (defining social theory as the articulation of a model of social life and application to observed social behavior).
136. See Handler, Political Spectacle, supra note 9, at 962 (citing Elizabeth Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. Rev. 589, 599 (1986)). Even while many dialogical praxis ethicists disagree about a range of issues from the validity of client narrative as a way of making strategic decisions to the place of rights, most of them share the belief that law is a form of social construction or theory of reality. See id. at 958-59, 968; see also David E. Van Zandt, The Relevance of Social Theory to Legal Theory, 83 Nw. U. L. Rev. 10, 26 (1989) (defining social theory as the articulation of a model of social life and application to observed social behavior).
137. See Kupfer, supra note 48, at 87 (quoting Richard Bernstein's description of the communicative ethics presented in the theories of Jürgen Habermas, Hans-Georg Gadamer, Hannah Arendt, John Dewey, and Richard Rorty). Dialogue is expected to include all affected parties, and a commitment by all parties to consider the legitimate needs of those affected. It permits each individual to be "'decentered' by being forced to look at the problem from alternative points of view" and assumes that the solution cannot be found by one party alone. Kimberly E. O'Leary, Dialogue, Perspective and Point of View as Lawyering Method: A New Approach to Evaluating Anti-Crime Measures in Subsidized Housing, 49 Wash. U. J. Urb. & Contemp. L. 133, 168 (1996) (footnote omitted).
138. See, e.g., Bezdek, supra note 4, at 577 (arguing that in housing court, tenants choose strategies of silence, including nonappearance, powerless speech, powered speech constrained by what the law permits to be said, and empowered speech where their strategy coincides with the legal forum's possibilities).
139. See Alfieri, Reconstructive Poverty, supra note 5, at 2127.
140. Id. at 2128.
141. See id. at 2129. Handler similarly identifies the three faces of power as the ability to get another to do what the subject wants him to do by direct coercion, the power to exclude participants and issues altogether, and the grounds of verbal exchange acting as domination in setting the agenda and deciding the outcome. Handler, Search for Community, supra note 6, at 21-23.
142. See Alfieri, Reconstructive Poverty, supra note 5, at 2136-37, 2140-45.
143. See Hazard, supra note 1, at 243 (arguing that the poor are unorganized, "politically unsophisticated, inadequately financed for political warfare, and not patient enough to persevere" in legislative reform).
144. Kupfer, supra note 48, at 89.
145. See Blasi, supra note 13, at 1093 (arguing for Lucie White's "situated theoretical practice," a collective practice including theory as a habit of practitioners' conversation about how to describe problems and strategies and act upon them).
146. Gerald P. López, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice 65 (1992) [hereinafter López, Rebellious Lawyering].
147. Lucie White, Paradox, Piece-Work, and Patience, 43 Hastings L.J. 853, 854 (1992) [hereinafter White, Paradox].
148. Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298, 1336 (1992) [hereinafter Cunningham, Lawyer as Translator] (quoting James Boyd White, Justice as Translation 257 (1990)); see also Clark D. Cunningham, A Tale of Two Clients: Thinking about Law as Language, 87 Mich. L. Rev. 2459, 2482 (1989) (arguing that client representation is a series of dialogues between legal actors, each replicating "the internal mental dynamic between experience and knowledge in which language both constitutes concepts out of experience and reconstitutes experience by [the] use of concepts"). This move, of course, results in the further question about what kind of "research" a lawyer should be doing on a client, and to what extent the lawyer should be doing "empowerment research" that involves the subjects in how the lawyer would look at their text and for what reason. See, e.g., Clark D. Cunningham & Bonnie S. McElhinny, Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285, 298-301 (1995) (describing ethical debates of socio-linguists studying lawyer-client relationships).
149. Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298, 1336 (1992) [hereinafter Cunningham, Lawyer as Translator] (quoting James Boyd White, Justice as Translation 257 (1990)); see also Clark D. Cunningham, A Tale of Two Clients: Thinking about Law as Language, 87 Mich. L. Rev. 2459, 2482 (1989) (arguing that client representation is a series of dialogues between legal actors, each replicating "the internal mental dynamic between experience and knowledge in which language both constitutes concepts out of experience and reconstitutes experience by [the] use of concepts"). This move, of course, results in the further question about what kind of "research" a lawyer should be doing on a client, and to what extent the lawyer should be doing "empowerment research" that involves the subjects in how the lawyer would look at their text and for what reason. See, e.g., Clark D. Cunningham & Bonnie S. McElhinny, Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285, 298-301 (1995) (describing ethical debates of socio-linguists studying lawyer-client relationships).
150. Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298, 1336 (1992) [hereinafter Cunningham, Lawyer as Translator] (quoting James Boyd White, Justice as Translation 257 (1990)); see also Clark D. Cunningham, A Tale of Two Clients: Thinking about Law as Language, 87 Mich. L. Rev. 2459, 2482 (1989) (arguing that client representation is a series of dialogues between legal actors, each replicating "the internal mental dynamic between experience and knowledge in which language both constitutes concepts out of experience and reconstitutes experience by [the] use of concepts"). This move, of course, results in the further question about what kind of "research" a lawyer should be doing on a client, and to what extent the lawyer should be doing "empowerment research" that involves the subjects in how the lawyer would look at their text and for what reason. See, e.g., Clark D. Cunningham & Bonnie S. McElhinny, Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285, 298-301 (1995) (describing ethical debates of socio-linguists studying lawyer-client relationships).
151. Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298, 1336 (1992) [hereinafter Cunningham, Lawyer as Translator] (quoting James Boyd White, Justice as Translation 257 (1990)); see also Clark D. Cunningham, A Tale of Two Clients: Thinking about Law as Language, 87 Mich. L. Rev. 2459, 2482 (1989) (arguing that client representation is a series of dialogues between legal actors, each replicating "the internal mental dynamic between experience and knowledge in which language both constitutes concepts out of experience and reconstitutes experience by [the] use of concepts"). This move, of course, results in the further question about what kind of "research" a lawyer should be doing on a client, and to what extent the lawyer should be doing "empowerment research" that involves the subjects in how the lawyer would look at their text and for what reason. See, e.g., Clark D. Cunningham & Bonnie S. McElhinny, Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285, 298-301 (1995) (describing ethical debates of socio-linguists studying lawyer-client relationships).
152. Cunningham, Lawyer as Translator, supra note 127, at 1348-49; see also López, Rebellious Lawyering, supra note 125, at 65-66 (arguing that theory is an instrument of practical problem solving); Alfieri, Reconstructive Poverty, supra note 5, at 2121 (describing poverty lawyers as "an interpretive community forging a practical knowledge and a discourse to construct the meanings and images of the client world" and "direct and justify the lawyer's actions").
153. Cunningham, Lawyer as Translator, supra note 127, at 1348-49; see also López, Rebellious Lawyering, supra note 125, at 65-66 (arguing that theory is an instrument of practical problem solving); Alfieri, Reconstructive Poverty, supra note 5, at 2121 (describing poverty lawyers as "an interpretive community forging a practical knowledge and a discourse to construct the meanings and images of the client world" and "direct and justify the lawyer's actions").
154. Cunningham, Lawyer as Translator, supra note 127, at 1348-49; see also López, Rebellious Lawyering, supra note 125, at 65-66 (arguing that theory is an instrument of practical problem solving); Alfieri, Reconstructive Poverty, supra note 5, at 2121 (describing poverty lawyers as "an interpretive community forging a practical knowledge and a discourse to construct the meanings and images of the client world" and "direct and justify the lawyer's actions").
155. See Trubek, Lawyering, supra note 4, at 987-88.
156. White, Seeking, supra note 111, at 1501-02 (quoting William F.L. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibilty in Lawyer- Client Interactions, 77 Cornell L. Rev. 1445, 1454, 1496 (1992)).
157. White, Seeking, supra note 111, at 1501-02 (quoting William F.L. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibilty in Lawyer-Client Interactions, 77 Cornell L. Rev. 1445, 1454, 1496 (1992)).
158. Id. at 1503.
159. See Gerald P. López, An Aversion to Clients: Loving Humanity and Hating Human Beings, 31 Harv. C.R.-C.L. L. Rev. 315, 319 (1996) [hereinafter López, Aversion]; White, Seeking, supra note 111, at 1503. While this is the ideal argued for, we must take more seriously poor people's own perceptions that they are dominated, "enclosed by the power of the welfare apparatus and yet dependent on it," where rules are a series of "they say" and they are excluded from law's interpretive community. Bezdek, supra note 4, at 590-91.
160. See Gerald P. López, An Aversion to Clients: Loving Humanity and Hating Human Beings, 31 Harv. C.R.-C.L. L. Rev. 315, 319 (1996) [hereinafter López, Aversion]; White, Seeking, supra note 111, at 1503. While this is the ideal argued for, we must take more seriously poor people's own perceptions that they are dominated, "enclosed by the power of the welfare apparatus and yet dependent on it," where rules are a series of "they say" and they are excluded from law's interpretive community. Bezdek, supra note 4, at 590-91.
161. See White, Mrs. G., supra note 4, at 53-58.
162. See Alfieri, Impoverished Practices, supra note 6, at 2661-62.
163. See Bezdek, supra note 4, at 567-600.
164. White, Mrs. G., supra note 4, at 4; see also Alfieri, Reconstructive Poverty, supra note 5, at 2124-25 (describing lawyers' interaction with clients as silencing, assigning the client's story a category of value, objectifying the client as dependent, and calculating what client role performance will work the best); Bezdek, supra note 4, at 571 (describing a judge rejecting tenants' notice of housing defects as statutorily inadequate); id. at 584-85 (stating that judges ignore the "polite" style of speech used by women and the poor); id. at 593-94 (claiming that judges misinterpret the confrontational style of blacks as hostility rather than self-expression).
165. See White, Mrs. G., supra note 4, at 51-52.
166. See id. at 8; White, Paradox, supra note 126, at 857-58 (discussing the effect of retaliatory violence such as lynchings, rape, battery, firings, evictions, or termination of welfare claims of speaking clients).
167. See Handler, Search for Community, supra note 6, at 26-28 (describing the self-blame of victims); Delgado, supra note 105, at 69, 71. In conversation with Delgado, Rodrigo posits that people who move back and forth between communities can betray the least powerful by disclosing their secrets. See Delgado, supra note 105, at 73.
168. White, Mrs. G., supra note 4, at 8 (footnote omitted).
169. Steven L. Winter, Cursing the Darkness, 48 U. Miami L. Rev. 1115, 1125 (1994) (quoting William H. Simon, The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era, 48 U. Miami. L. Rev. 1099, 1111 (1994)).
170. Steven L. Winter, Cursing the Darkness, 48 U. Miami L. Rev. 1115, 1125 (1994) (quoting William H. Simon, The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era, 48 U. Miami. L. Rev. 1099, 1111 (1994)).
171. See, e.g., Alfieri, Reconstructive Poverty, supra note 5, at 2118 (studying the interpretive struggle between lawyer and client).
172. Louise Trubek characterizes the debate as having three foci: The critical legal scholarship is too post-modern, i.e., "fragmented, isolated, incapable of duplication, divisive, and pessimistic," to be helpful to practitioners; it is pretentious and inaccessible to all but academics; and it is modest, failing "to chart an ambitious agenda, derived from theory, that would take poor people, as a whole, out of poverty." Trubek, Lawyering, supra note 4, at 993; see also Blasi, supra note 13, at 1088-89 (arguing that critical postmodern scholarship has been seen by poverty lawyers as emanating from distant and haughty voices, devaluing the voices of real poverty lawyers; and post-modern scholarship rarely extends beyond the lawyer-client relationship). Yet, neither White nor Alfieri, two lead proponents, seem resigned about poverty-law practice. Alfieri finds in his own failure the possibility for a more realistic approach to representation that recognizes the lawyer's ability to "seize a limited autonomy from the pre-understanding and violence of interpretive practices" and "to extract partial understanding of the client's world from the voices of client narratives." Alfieri, Reconstructive Poverty, supra note 5, at 2131 (citations omitted).
173. Louise Trubek characterizes the debate as having three foci: The critical legal scholarship is too post-modern, i.e., "fragmented, isolated, incapable of duplication, divisive, and pessimistic," to be helpful to practitioners; it is pretentious and inaccessible to all but academics; and it is modest, failing "to chart an ambitious agenda, derived from theory, that would take poor people, as a whole, out of poverty." Trubek, Lawyering, supra note 4, at 993; see also Blasi, supra note 13, at 1088-89 (arguing that critical postmodern scholarship has been seen by poverty lawyers as emanating from distant and haughty voices, devaluing the voices of real poverty lawyers; and post- modern scholarship rarely extends beyond the lawyer-client relationship). Yet, neither White nor Alfieri, two lead proponents, seem resigned about poverty-law practice. Alfieri finds in his own failure the possibility for a more realistic approach to representation that recognizes the lawyer's ability to "seize a limited autonomy from the pre-understanding and violence of interpretive practices" and "to extract partial understanding of the client's world from the voices of client narratives." Alfieri, Reconstructive Poverty, supra note 5, at 2131 (citations omitted).
174. López, Aversion, supra note 132, at 318.
175. White, Paradox, supra note 126, at 858.
176. Blasi, supra note 13, at 1082. Louise Trubek reports that discussions within the Project Group of the Interuniversity Consortium on Poverty Law have criticized poverty-law scholarship as post-modern, i.e., "fragmented, isolated, incapable of duplication, divisive, and pessimistic" and "not helpful to practitioners." Trubek, Lawyering, supra note 4, at 993.
177. See Levinas, supra note 10, at 33-34, 39, 49-52, 197-200. The description of Levinas's argument which I give in the next paragraphs can be found in Totality and Infinity, supra note 10, primarily at 33-52 and 194-204.
178. See id. at 197-201.
179. See id. at 212-14.
180. See id. at 201, 213.
181. Id. at 202; see also id. at 52 ("Contact is already a thematization and a reference to a horizon.").
182. See id. at 45-48, 123-25.
183. See Drucilla Cornell, The Philosophy of the Limit 72-75 (1992) (using the image of Jacques Derrida).
184. See Alfieri, Reconstructive Poverty, supra note 5, at 2128-29.
185. López, Rebellious Lawyering, supra note 125, at 24.
186. Id.
187. Id.
188. Id.
189. See Levinas, supra note 10, at 197. Levinas most often suggests that I have the ability to murder the Other, but the face of the Other only resists me ethically: His "infinity, stronger than murder, already resists us in his face, is his face, is the primordial expression, is the first word: 'you shall not commit murder.'" Id. at 199. Yet Levinas agrees that the Other resists my powers to totalize him, which is a threat to me. See id. at 198. In the sense that the Other calls us to responsibility, which is who we are, the Other is not threatening. In the sense that the ethical is the real, to lose my life in the exercise of responsibility is not to lose myself.
190. See id. at 199-201, 213, 251. For Levinas, responsibility does not limit but "promotes my freedom, by arousing my goodness." Id. at 200.
191. Hannah Arendt, The Human Condition 177 (1958).
192. See Alfieri, Practicing Community, supra note 43, at 1754.
193. See, e.g., Joseph Erasto Jaramillo, The Community-Building Project: Racial Justice Through Class Solidarity Within Communities of Color, 9 La Raza L.J. 195, 233-42 (1996) (arguing the necessity for solidarity among people of color across class lines as a requirement for racial justice and for counteracting the dehumanization of racial insubordination).
194. López, Rebellious Lawyering, supra note 125, at 7 (emphasis added).
195. See Ashe, supra note 59, at 2550-51 (focusing on resistance to the construction and essentializing of the "bad mother" in neglect/abuse cases that reinforces women's roles).
196. Ada María Isasi-Díaz, Solidarity, in Dictionary of Feminist Theologies 266, 266 (Letty M. Russell & J. Shannon Clarkson eds., 1996).
197. For instance, people of color can support each other, rather than focusing on class differences such as income, occupation, "cultural capital" necessary to function in middle and upper-class life, and respectability, or class standing. See Jaramillo, supra note 163, at 202-03.
198. As one example, the Catholic tradition of solidarity has been linked with the principle of subsidiarity, a social structural principle which says that "it is wrong to transfer 'to the larger and higher collectivity functions which can be provided for by lesser and subordinate bodies.'" Arthur F. McGovern, Entitlements and Catholic Social Teachings, 11 Notre Dame J.L. Ethics & Pub. Pol'y 445, 450 (1997) (quoting Pius XI, Quadragesimo Anno para. 79 (1931), reprinted in Catholic Social Thought, The Documentary Heritage (David J. O'Brien & Thomas A. Shannon eds., 1992)). Such a concept rests on a high valuation of the individual, and of smaller communities which individuals create in solidarity with each other; for this tradition, the energies of society flow from below upwards, not from the top down. See Francis Canavan, The Popes and the Economy, 11 Notre Dame J.L. Ethics & Pub. Pol'y 429, 440 (1997).
199. As one example, the Catholic tradition of solidarity has been linked with the principle of subsidiarity, a social structural principle which says that "it is wrong to transfer 'to the larger and higher collectivity functions which can be provided for by lesser and subordinate bodies.'" Arthur F. McGovern, Entitlements and Catholic Social Teachings, 11 Notre Dame J.L. Ethics & Pub. Pol'y 445, 450 (1997) (quoting Pius XI, Quadragesimo Anno para. 79 (1931), reprinted in Catholic Social Thought, The Documentary Heritage (David J. O'Brien & Thomas A. Shannon eds., 1992)). Such a concept rests on a high valuation of the individual, and of smaller communities which individuals create in solidarity with each other; for this tradition, the energies of society flow from below upwards, not from the top down. See Francis Canavan, The Popes and the Economy, 11 Notre Dame J.L. Ethics & Pub. Pol'y 429, 440 (1997).
200. Gary Blasi suggests that attention to "larger stories of collective resistance and community building" and the "structures and forces that explain . . . the persistence of individual tragic tales" is necessary to the task of poverty-lawyering, claiming "[c]ommunities, organizations, movements, and lawsuits also have stories to tell, if someone will listen." Blasi, supra note 13, at 1090.
201. See Austin Sarat, Narrative Strategy and Death Penalty Advocacy, 31 Harv. C.R.-C.L. L. Rev. 353, 365 (1996) (arguing that death penalty lawyers' narrative advocacy for their clients is not in vain, for they serve as witnesses to injustice in the present and historians memorializing these injustices for the future, which permits them to carry a future vision where justice prevails over violence).
202. Insisting that rights belong to individuals "prior to the state," the Catholic tradition stresses human dignity as the foundation on which rights rest, a foundation which understands "rights from," i.e., freedom rights, as well as "rights to" - the rights to "meeting of basic human needs, and participation in community." McGovern, supra note 168, at 447 (footnote omitted).
203. See Jaramillo, supra note 163, at 210 (quoting bell hooks's remembrance of her segregated black community as one where black people "were truly caring and supportive of one another" and Ana Castillo's recollection of her Chicago Mexican neighborhood as one where "the spiritual and psychological needs of a people so despised and undesired . . . were met in our own large communities" (footnotes omitted)).
204. In the Christian tradition, this non-dependence of human dignity on consent is embodied in Pope Leo's articulation of the natural law tradition, which imagines rights as part of an ideal social order intended by God, not any humanly-chosen social contract. See McGovern, supra note 168, at 448.
205. See Michael Hechter, Principles of Group Solidarity 8-9 (1987).
206. See Fletcher, supra note 69, at 34.
207. Ian R. Macneil, Exchange Revisited: Individual Utility and Social Solidarity, 96 Ethics 567, 568-69 (1986) (citation omitted). Macneil argues that both gifts and other utility-enhancing exchanges contribute to social solidarity. See also Delgado, supra note 105, at 94 (showing, through a fictional alter-ego, how empathy is dependent on the ability to trade, which makes it least useful when it is most needed, i.e., when socioeconomic equalities are the greatest).
208. See Jodi Dean, Solidarity of Strangers: Feminism After Identity Politics 18 (1996); Hechter, supra note 174, at 8-9; Jaramillo, supra note 163, at 211.
209. See Dean, supra note 177, at 18; Jaramillo, supra note 163, at 226 (citing John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back to the Future Essay, 71 N.C. L. Rev. 1487, 1501 (1993)).
210. Dean, supra note 177, at 14.
211. See Fried, supra note 23, at 1076-78.
212. See id. at 17-18.
213. See López, Rebellious Lawyering, supra note 125, at 28-38.
214. See Ellmann, supra note 87, at 2681.
215. See, e.g., Anthony E. Davis & Judith Grimaldi, Sexual Confusion: Attorney-Client Sex and the Need for a Clear Ethical Rule, 7 Notre Dame J.L. Ethics & Pub. Pol'y 57, 74 (1993) (stating that "[i]f a lawyer should act on . . . [a] sexual or romantic interest, it can impair his judgment and adversely affect the best interests of the client").
216. Isasi-Díaz, supra note 166, at 266.
217. See id.
218. See Alfieri, Reconstructive Poverty, supra note 5, at 2140-42 (arguing that collaboration embodies empathy that need not be fully mutual but must be minimally reciprocal to permit the exchange of "local knowledge about their opposing interpretive communities," which will be necessarily diffuse and partial).
219. Isasi-Díaz, supra note 166, at 266. In this definition, love is not defined by individual feelings, but as "a praxis of mutuality: an intentional, reflective action aimed at the building of community of those who struggle against oppression and for justice." Id.
220. Id. at 267.
221. See Kupfer, supra note 48, at 88. Indeed, Habermas's discourse on ethics continues to assume that the individual voluntarily submits to the process of consensus for establishing norms acceptable to all affected by them and agrees to search for valid norms all can consent to, and to be persuaded to accept them once discovered. See id.
222. Id. (describing Habermas's theory of communicative ethics).
223. Or, as Kimberly O'Leary puts it, "[p]eople may feel that more 'talk' and less 'action' are not worth their time. . . . [J]obs, school, demands of children, and demands made by the government may persuade many . . . [clients] that there is simply not enough time to participate in this activity," especially in crisis circumstances. O'Leary, supra note 116, at 186. In addition, authorities, such as police and public-housing staff, may see dialogue as a waste of time when they have immediate solutions, and clients may be skeptical that those with power will "actually consider their ideas." Id. O'Leary suggests using dialogue with other traditional legal strategies. See id. at 185-88. Handler suggests that the powerless must be given "incentives and the means" to participate in dialogue. Handler, Search for Community, supra note 6, at 11.
224. Dialogical problem-solving may result in solutions that do not protect the concerns of minorities; dialogue partners will still determine who is permitted into the conversation to ensure that it is based on legitimate goals and efficacious. See O'Leary, supra note 116, at 187-88.
225. See Dean, supra note 177, at 19-28.
226. Id. at 15.
227. Id. at 22.
228. Id. at 24. Dean claims that Justice Thomas's "lynching" claim evoked a history of punishment of black men for their contact with white women, whereas no black woman's honor had ever been revenged by lynching, for white lynch mobs recognized no honor they were bound to respect. See id. The Thomas claim of victimhood thus demanded that "blackness" had to be male blackness, and black women were asked to choose between being black and being a woman. See id.; see also Marion Manuel, Thomas Sharply Defends Conservative Views, Atlanta Const., July 30, 1998, at A3 (reporting on Justice Thomas's defense of his views before the National Bar Association).
229. Indeed, Dean's book is an effort to argue for a "reflective solidarity" that recognizes our connection through our struggle against those who threaten, denigrate, and silence us. . . . [And it] take[s] seriously the ever present fact of exclusion. We can never be sure who "we" are in any final or ultimate sense. Thus, we have to acknowledge the distinction between actual and potential members, the way we may always exclude another. Dean, supra note 177, at 31-32. Unfortunately, I think Dean's proposed method for solving the dilemma - asking group members to create a "hypothetical attitude toward the norms and expectations of their group" and look at the situation from the perspective of the "situated, hypothetical third" who stands outside the immediate situation, id. at 33-34, falls prey to the same challenges from post-modernism that Rawlsian liberalism has.