Public interest lawyers and resistance movements

California Law Review

Volumn 95, Issue 5, 2007, Pages 1879-1926

  Ashar, Sameer M ^a,b  

^a Department of Law ^*

^b CITY UNIVERSITY OF NEW YORK   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39449092689     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (285)

1. See Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CALIF. L. REV. 741, 763-64 (1994) (citing EDWARD SAID, CULTURE AND IMPERIALISM 209-20 (1993) (defining "resistance culture" as including both the reconstitution of the culture and identity of a subordinated population and an intervention into the dominant culture in efforts to transform it)).
2. Critics call this structural framework "liberal legalism." See Wendy Brown & Janet Halley, Introduction, in LEFT LEGALISM/LEFT CRITIQUE 5-25 (Brown & Halley eds., 2002) [hereinafter LEFT LEGALISM]. The framework is animated by the political vision of classical liberalism-"democratic constitutionalism rooted in abstract individualism," id. at 5 - and married to the implementing force of legalism, which "translates wide-ranging political questions into more narrowly framed legal questions." Id. at 19.
3. See Martha Minow, Lawyering for Human Dignity, 11 AM. U. J. GENDER SOC. POL'Y & L. 143 (2002-2003) (discussing the challenges to progressive public interest lawyers in the present historical moment);
4. Martha Minow, Political Lawyering: An Introduction, 31 HARV. C.R.-C.L. L. REV. 287 (1996).
5. See Marc Galanter, "Old and In the Way": The Coming Demographic Transformation of the Legal Profession and Its Implications for the Provision of Legal Services, 1999 WISE. L. REV. 1081, 1103-04 (1999) ("In the course of fifteen years [between 1982 and 1997], the relative share expended on civil legal services for the poor was halved." Id. at 1104.).
6. See, e.g., Balakrishnan Rajagopal, Limits of Law in counter-hegemonic globalization: the Indian Supreme Court and the Narmada Valley struggle, in LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY 183-217 (Boaventura de Sousa Santos & César A. Rodríguez-Garavito eds., 2005)
7. [hereinafter LAW AND GLOBALIZATION FROM BELOW]; JOEL HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM (1978).
8. National Restaurant Association, Restaurant Industry Facts, May 25, 2007, http://www.restaurant.org/research/ind_glance.cfm (last visited Aug. 14, 2007).
9. See RESTAURANT OPPORTUNITIES CENTER OF NEW YORK & NEW YORK CITY RESTAURANT INDUSTRY COALITION, BEHIND THE KITCHEN DOOR: PERVASIVE INEQUALITY IN NEW YORK'S THRIVING RESTAURANT INDUSTRY 5-8 (2005) [hereinafter BEHIND THE KITCHEN DOOR], www.rocny.org/documents/RocNY_final_compiled.pdf (last visited Aug. 14, 2007).
10. Less than one percent of the workforce in the restaurant industry in New York is unionized. See Sarumathi Jayaraman, ROCing the Industry: Organizing Restaurant Workers in New York, in THE NEW URBAN IMMIGRANT WORKFORCE: INNOVATIVE MODELS FOR LABOR ORGANIZING 143 (Sarumathi Jayaraman & Immanuel Ness eds., 2005) [hereinafter THE NEW URBAN IMMIGRANT WORKFORCE].
11. JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 1 (2006), http://pewhispanic.org/reports/report.php?ReportID=61 (last visited Aug. 14, 2007).
12. See generally id.
13. JEFFREY S. PASSEL, ET AL., UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES 2 (2004), http://www.urban.org/uploadedPDF/1000587_undoc_immigrants_facts.pdf (last visited Aug. 14, 2007).
14. See generally id.
15. See JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 14-15 (2005).
16. See JAGDISH BHAGWATI, IN DEFENSE OF GLOBALIZATION 3 (2004).
17. See JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 53 (2002). During the transition from colonialism to independence, many countries in the global South adopted economic programs that were a mix of free market and governmental command and control policies. These newly independent nations sought to provide income support and other social benefits to the people, to control their own natural resources and essential industries through public ownership, and to aggressively intervene in relationships between employers and workers, especially in industries marked by prior colonial exploitation. Through a combination of internal failure due to corruption and cronyism, external pressure by private entities and lending institutions in the U.S. and Western Europe, and the collapse of the patron states of the Communist bloc, these countries suffered through a succession of economic crises. Policy-makers, economists, and multinational corporations in the global North were hostile to the efforts of these nations to erect legal walls around industries, natural resources, and cheap labor and gained the leverage necessary to impose the conditions of the Washington Consensus in the 1980s and 1990s.
18. See Rosemary J. Coombe, The Cultural Life of Things: Anthropological Approaches to Law and Society in Conditions of Globalization, 10 AM. U. J. INT'L L. & POL'Y 791, 797-801 (1995);
19. Alejandro Portes & Jozsef Borocz, Contemporary Immigration: Theoretical Perspectives on its Determinants and Modes of Incorporation, 23 INT'L MIGRATION REV. 606, 607-09 (1989) (describing current migration as a product of historical patterns of contact and penetration between sending and receiving countries and criticizing push-pull theories that focus solely on contrasts in living standards or governmental action).
20. See Frank Munger, Conclusion: Democratizing Poverty, in LABORING BELOW THE LINE: THE NEW ETHNOGRAPHY OF POVERTY, LOW-WAGE WORK, AND SURVIVAL IN THE GLOBAL ECONOMY 295 (2002).
21. See Saskia Sassen, The Informal Economy: Between New Developments and Old Regulations, 103 YALE L.J. 2289 (1994).
22. See id. at 2294-99 ("The groups of service industries that were the driving economic force in the 1980s were characterized by greater earnings and occupational dispersion, weak labor unions, and mostly unsheltered jobs in the lower-paying echelons." Id. at 2294.).
23. See Bruno Caruso, Immigration Policies in Southern Europe: More State, Less Market, in LABOUR LAW IN AN ERA OF GLOBALIZATION 299, 303 (Joanne Conaghan, et al. eds., 2002) (describing the interaction between enforcement of labor laws and immigration in southern versus Northern Europe) [hereinafter LABOUR LAW IN AN ERA OF GLOBALIZATION]. The Reagan Administration made no secret of its antipathy to organized labor and accelerated deregulatory initiatives in various industries. Funding of federal labor law enforcement in the U.S. has not kept up with inflation and increases in the numbers of covered employees and businesses.
24. ANNETTE BERNHARDT & SIOBHAN MCGRATH, ECONOMIC POLICY BRIEF: TRENDS IN WAGE AND HOUR ENFORCEMENT BY THE U.S. DEPARTMENT OF LABOR, 1975-2004, (Sept. 2005), http://www.brennancenter.org/dynamic/subpages/download_file_8423.pdf (last visited Aug. 14, 2007) ("Our analysis indicates that over the past three decades, enforcement resources and activities of the U.S. Department of Labor have either stagnated or declined, at the same time that the number of workers and workplaces in the country has expanded. In combination, these two trends indicate a significant reduction in the government's capacity to ensure that employers are complying with the most basic workplace laws." Id. at 1.).
25. See Gordon, supra note 14, at 46 ("[U]ndocumented immigrants' fear of deportation and their lack of legal status make them particularly likely to gravitate toward the underground economy, made up of businesses that operate on cash with little regard for government regulations." Id. at 46.).
26. Occupational segregation was a focus of a successful deportation defense in In re Herrera-Priego, U.S. D.O.J. E.O.I.R. July 10, 2003 (Lamb, Immigration J.), available at http://www.lexisnexis.com/practiceareas/ immigration/pdfs/web428.pdf (last visited Aug. 14, 2007) and discussed further by lead attorney Michael J. Wishnie, Introduction: The Border Crossed Us, 28 N.Y.U. REV. L & SOC. CHANGE 389, 389 (2004).
27. The workplace was composed of Latino, Chinese, and Polish workers who did different kinds of work and were subject to varying levels of attention by immigration enforcement authorities during a workplace raid. See Laura Ho et al., (Dis)assembling Rights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry, 31 HARV. C.R.-C.L. L. REV. 383 (1996) (discussing the low status of women workers on the economic ladder).
28. See also Julie A. Su, Making the Invisible Visible: The Garment Industry's Dirty Laundry, 1 J. GENDER RACE & JUST. 405, 411 (1998) (describing the challenge of bridging Thai and Latino garment workers in opposition to exploitative employers).
29. See Michael J. Wishnie, supra note 23, at 389-94 (describing the correlation between labor disputes in workplaces and immigrant enforcement raids);
30. Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345, 401 (2001).
31. See Caruso, supra note 21, at 311 -12 (describing the situation in Italy).
32. See Gordon, supra note 14, at 48.
33. BEVERLY J. SILVER, FORCES OF LABOR: WORKERS' MOVEMENTS AND GLOBALIZATION SINCE 1870 3-5, (2003) (describing and then criticizing "race to the bottom" arguments).
34. Although Silver argues against the inevitability of weakened labor movements, she indicates that the fundamental shift in the world economy, which prevents profits in the corporate centers of the global North from reaching mobilized working classes in newly industrialized nations of the global South may sow unrest and preempt labor-management cooperation regimes in manufacturing. Id. at 168-70.
35. Labor in the service industries of the global North, such as restaurant workers, will instead achieve some measure of countervailing power through creative mobilization against highly profitable target employers, like high-end restaurant chains. Id. at 170-73.
36. See infra text accompanying notes 43-47.
37. Frances Raday, The Decline of Union Power-Structural Inevitability or Policy Choice, in LABOUR LAW IN AN ERA OF GLOBALIZATION, supra note 20, at 353, 361-62 ("It is no secret that the concept of employment is a legal construct with a status element not wholly determinable by agreement between the parties. Hence, the possibility of using workers' services without entering into an employment relationship with them is as much a consequence of law as of economic factors")
38. (citing George Gonos, The Contest Over "Employee " Status in the Postwar U.S.: The Case of Temporary Help Firms, 31 LAW & SOC. REV. 81, 83 (1997)).
39. David Graeber, The New Anarchists, in A MOVEMENT OF MOVEMENTS 202, 206 (Tom Mettes ed., 2004) ("[T]he neoliberal vision of 'globalization' is pretty much limited to the movement of capital and commodities, and actually increases barriers against the free flow of people, information, and ideas-the size of the US border guard has almost tripled since the signing of NAFTA.... This is another thing to bear in mind when people talk about the decline of 'sovereignty' in the contemporary world: the main achievement of the nation-state in the last century has been the establishment of a uniform grid of heavily policed barriers across the world." Id.).
40. See infra note 42.
41. See Graeber, supra note 29.
42. See infra text accompanying notes 120-124;
43. Laura Ho et al., supra note 22, at 409-10;
44. Bruce Goldstein et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment, 46 UCLA L. REV. 983, 997-1002 (1999) (describing the vertical disaggregation of the garment industry for the purpose of avoiding liability for legal violations).
45. In 2002, the Department of Justice reversed its long-held view that immigration enforcement is exclusively a function of the federal government and deemed local law enforcement officials to have "inherent authority" to enforce immigration law. See Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1090-91 (2004);
46. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 1003 (2004)
47. (The DOJ's position "creat[es] a thousand borders-the result of allowing local authorities to decide for themselves whether to enforce immigration laws and then having those local authorities be bound by different state laws that affect their enforcement authority." Id.);
48. After joint local-federal immigration raids, immigrant communities remain distrustful of local government agencies, including the police. Terry Golway, Back Into the Shadows, N.Y. TIMES, Feb. 20, 2005, § 14NJ, at 1;
49. Local agencies are increasingly invoking the 1996 changes in the Immigration and Nationality Act to request federal training in immigration enforcement and are reporting non-citizens with minor offenses to immigration officials. Paul Vitello, Path to Deportation Can Start With a Traffic Stop, N.Y. TIMES, Apr. 14, 2006, at Al;
50. Some police officers oppose such deputization practices. Joe Cantlupe, Proposal Targets Migrants ' offenses; Police Say They Lack Resources to Make Arrests, SAN DIEGO UNION-TRIB., NOV. 29, 2003, at Al;
51. The FBI database-to which state and local police have access-now holds immigration information in addition to criminal activity; police officers are encouraged to make immigration arrests, whether the infractions are criminal or civil, including arrests of student-visa violators. Wishnie, State and Local Police Enforcement, supra note 33, at 1095-97.
52. The Court held in U.S. v. Brignoni-Ponce, 422 U.S. 873, 887 (1975), that "Mexican appearance" was a "relevant factor" in an INS stop. Such racial profiling, a widespread practice in immigration enforcement, is extended to local police who cooperate with the federal government.
53. Wishnie, State and Local Police Enforcement of Immigration Laws, supra, at 1102-05;
54. Muzaffar A. Chishti, The Role of States in U.S. Immigration Policy, 58 N.Y.U. ANN. SURV. AM. L. 371, 374 (2004)
55. ("Local law enforcement officers, untrained in the complexities of immigration regulations, are more likely to use race or ethnicity as a substitute for reasonable cause." Id.).
56. In June 2006, U.S. Immigration and Customs Enforcement (ICE) proposed new rules regarding employers' responsibilities upon receipt of a letter from the Social Security Administration (SSA) indicating the lack of a match between an employee's social security number and government records. Safe-Harbor Procedures for Employers Who Receive a NoMatch Letter, 71 Fed. Reg. 34281-01 (June 14, 2006) (to be codified at 8 C.F.R. § 274(a)). Under the pending rules, employers would be required to take a number of steps possibly leading to the termination of an employee. National Immigrant Law Center, DHS Announces It Has Finalized "Safe Harbor Procedures for Employers Who Receive a No-Match Letter" Rule, Aug. 10, 2007, http://www.nilc.org/irnmsemplymnt/ SSA_Related_Info/ssa002.htm (last visited Aug. 15, 2007). If these steps are not taken within a certain period of time, the employer is assumed to have "constructive knowledge" of an employee's lack of authorization to work in the U.S. and could face fines and penalties. Id. These rules, if adopted, will provide employers with a legal justification for the termination of immigrant workers involved in organizing. Under current law,SSA is not permitted to share "no-match" data with ICE. However, DHS is seeking access to SSA records for the purpose of more efficient border patrol enforcement. See Press Release, Office of the Press Secretary, U.S. Department of Homeland Security, DHS Announces Federal Regulations to Improve Worksite Enforcement and Asks Congress to Approve Social Security "No Match" Data Sharing (June 9, 2006), available at http://www.dhs.gov/xnews/releases/press_release_0925.shtm (last visited Aug. 14, 2007).
57. The Real ID Act requires that states confirm social security numbers or proof of ineligibility prior to issuing drivers' licenses. Pub. L. 109-13 § 202(c)(1)(C) 106 Stat. 231 (2005). See Raquel Aldana & Sylvia R. Lazos Vargos, "Aliens" in our Midst Post 9/11: Legislating Outsiderness Within the Borders, 38 U.C. DAVIS L. REV. 1683 (2004) (discussing fear of arrest and deportation in immigrant communities as a result of passage of Real ID Act);
58. Maria Pabón López, More than a License to Drive: State Restrictions on the Use of Driver's Licenses by Noncitizens, 29 S. IU. U. L. J. 91 (2004) (survey of state restrictions on immigrant access to driver's licenses).
59. See Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000).
60. See Sameer M. Ashar, Immigration Enforcement and Subordination: The Consequences of Racial Profiling After September 11, 34 CONN. L. REV. 1185, 1197 (2002);
61. Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295, 297-98 (2002);
62. Approximately 13,000 Arab and South Asian Muslims have been placed in deportation proceedings since 9/11. Andrea Elliot, Study Finds City's Muslims Growing Closer Since 9/11, N.Y. TIMES, Oct. 5, 2004, at B4.
63. Nina Bernstein, Immigrants Go from Farms to Jails, and a Climate of Fear Settles In, N.Y. TIMES, Dec. 24, 2006, § 1, at 21 (describing increased immigration enforcement activity).
64. See Morawetz, supra note 36, at 1945-46
65. ("The likelihood of deportation is greater in communities that are subject to elevated levels of police activity and in which people are more likely to be arrested and prosecuted." Id.).
66. See, e.g., 66 Fed. Reg. 48334-48335 (Sept. 20, 2001) (to be codified at 8 C.F.R. § 287.3(d)) (detention extended from 24 hours to 48 in general and to a "reasonable period of time" during national emergencies); Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities, 67 Fed. Reg. 19,508- 19,511 (Apr. 22, 2002) (to be codified at 8 C.F.R. §§ 236 and 241) (in communicado detention for legitimate law enforcement purposes); U.S. Immigration and Customs Enforcement, Fact Sheet, Changes to National Security Entry/Exit Registration System (NSEERS) (Dec. 1, 2003); Akram & Johnson, supra note 37, at 331 (noting that approximately 1000 immigrants were swept into custody in the days following 9/11);
67. Ashar, supra note 37, at 1186-91 (describing arrest of detainee in a mosque);
68. Elliot, supra note 37;
69. Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV. 849 (2003) (describing effects of recent enforcement initiatives inLatino immigrant communities); 78 No. 46 Interpreter Releases 1809, 1816 (Dec. 3, 2001) ("voluntary" interviews of 5000 young men from certain countries);
70. James Sterngold & Diana Jean Schemo, A Nation Challenged: Foreign Students; 10 Arrested in Visa Cases in San Diego, N.Y. TIMES, Dec. 13, 2001, at B1 (first arrests of immigrant students for violations of their visas);
71. Dan Eggen, Deportee Sweep Will Start with Mideast Focus, WASH. POST, Feb. 8, 2002, at A01 (arrest of 6000 men from certain countries with final orders of deportation);
72. DOJ Office of Inspector General, The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders, Report No. 1-2003-004, Appendix B (Feb. 2003) (immigration violations entered into national criminal database to facilitate local enforcement of immigration law); 8 C.F.R. § 264.1 (forced registration of non-immigrants from certain countries);
73. Nurith C. Aizenman & Edward Walsh, Immigrants Fear Deportation After Registration: Number of Mideast, Muslim Men Rises Sharply, WASH. POST, July 28, 2003, at A01 (around 80,000 men submitted to "Special Registration" and thousands put into deportation proceedings);
74. Rights Working Group, Secret Hearings and Detentions, http://www.rightsworkinggroup.org/?q=SecretHearings (last visited Aug. 14, 2007) (hundreds of immigrants deported without due process).
75. See, e.g., Bernstein, supra note 38;
76. Julia Preston, U.S. Raids 6 Meat Plants in ID Case, N.Y. TIMES, Dec. 13, 2006, at A24;
77. Nicholas Riccardi & Nicole Gaouette, Employers' immigration pains, L.A. TIMES, Dec. 17, 2006, at 37.
78. The crackdown on undocumented immigrants coincided with deliberation in Washington, D.C. on comprehensive immigration reform and as the Bush Administration's guest worker proposals were attacked from the right by anti-immigrant politicians and organizations. Political performance, rather than actual threats to national security, seems to drive immigration enforcement at this time. See Muneer Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 CALIF. L. REV. 1261, 1317-27 (2004) (discussing the effect of post-9/11 governmental racial profiling on private hate crime perpetrators);
79. David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 954-59 (2002) (discussing sacrifice of the liberties of a minority group to further the purported security interests of the majority);
80. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575, 1582-83 (2002) (describing signals sent to the public by government law enforcement). Cumulatively, post-9/11 enforcement initiatives have eroded workers' right to free association and their ability to organize in the workplace.
81. See also Ruben J. Garcia, Labor's Fragile Freedom of Association Post-9/11, 8 U. PA. J. LAB. & EMP. L. 283 (2006);
82. Wishnie, supra note 33, at 1104.
83. See Secure Fence Act, Pub. L. No. 109-367, 120 Stat. 2638 (2006).
84. See THOMAS R. ELDRIDGE ET AL., 9/11 AND TERRORIST TRAVEL: STAFF REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE U.S. 99 (Aug. 21, 2004).
85. See BELINDA I. REYES ET AL., PUBLIC POLICY INSTITUTE OF CALIFORNIA, HOLDING THE LINE? THE EFFECT OF THE RECENT BORDER BUILD-UP ON UNAUTHORIZED IMMIGRATIONviii-xi (2002), available at http://www.ppic.org/ main/publication.asp?i=158 (last visited Aug. 14, 2007).
86. See Kevin R. Johnson, Open Borders, 51 UCLA L. REV. 193, 244 (2003).
87. See MAE NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA (2004)
88. ("[T]he interstate system, aimed at achieving order and peace, was based on 'crustacean' borders. That changed, among other things, how nation-states regulated migration. Rigid border controls, passports, and state restrictions on entry and exit became the norms for governing emigration and immigration." Id. at 10.).
89. ROC-NY Deputy Director Fekkah Mamdouh was a key member of the leadershipteam, a leader in the workplace at Windows, and a complement to Jayaraman, who had limited experience in the industry prior to 2002.
90. See Jennifer Gordon, We Make the Road By Walking: Immigrant Workers, The Workplace Project, and the Struggle for Social Change, 30 Harv. C.L.-C.R. L. Rev. 407, 428-37 (1995) (describing the founding of the Workplace Project).
91. See Sam Jayaraman, La Alianza Para La Justicia: A Team Approach to Immigrant Workers Organizing, in THE NEW IMMIGRANT URBAN IMMIGRANT WORKFORCE, supra note 8, at 85-104. Like Gordon, Jayaraman used popular education methods at the Workplace Project to expand the scope of what workers understood to be possible through solidarity and collective action.
92. She also made clear that public policy reform, with the leadership of the workers themselves, was an explicit and early goal of her work at the Workplace Project, just as it had been for Gordon. See id. at 90-91;
93. Gordon, supra note 13, at 115-41 (detailing Gordon's work). However, at the Workplace Project Jayaraman departed from a drop-in law clinic model in favor of more focused campaigns. Jayaraman organized teams of immigrant workers from multiple workplaces by industry. She proposed that a consensus be reached on a larger public policy campaign through discussion across teams. Individual workers would bring campaign proposals to the team, which would in turn consider several proposals and decide whether to initiate a given campaign. These were not the easiest cases or those that ensured the highest degree of worker selfhelp. Rather, they were chosen because the problems addressed were prevalent and oppressive in the industry, because the worker or workers who proposed the campaign compelled others to support them through their contributions and commitment to the group, or if the target employer was a bad actor of whom an example could be made through media work to raise rights consciousness in immigrant communities and standards of employment in the industry. Jayaraman also organized support from within the legal and labor fields for the Workplace Projects' goals. She recruited pro bono and public interest attorneys to support the campaigns through litigation and administrative advocacy. In addition, she worked extensively with the Association for Union Democracy against locals that were not responsive to complaints made by immigrant workers at union shops.
94. See id. at 145-46.
95. ROC-NY members were also key participants in the "$5.15 is Not Enough" Coalition with the Working Families Party, which succeeded in raising the minimum wage in New York in 2004 in spite of a gubernatorial veto. See Restaurant Opportunities Center of New York, Programs-Policy Work, http://rocny.org/programs-policywork.htm (last visited Aug. 15, 2007).
96. See ROC-NY, Proposed Responsible Restaurant Licensing Bill (Jan. 2007) (on file with author); BEHIND THE KITCHEN DOOR, supra note 7. See generally ROC-NY, ProgramsResearch Work, http://rocny.org/programs-researchwork.htm (last visited Aug. 15, 2007).
97. See Steven Greenhouse, In $8 Billion Restaurant Industry, a Study Finds Mostly 'Bad Jobs', N.Y. TIMES, Jan. 25, 2005, at B7.
98. See also Leslie Casimir, Say Minorities get Worst Eatery Jobs, N.Y. DAILY NEWS, Jan. 25, 2005, at 9.
99. See 29 U.S.C. §§ 151-69 (2000);
100. JANICE FINE, WORKER CENTERS: ORGANIZING COMMUNITIES AT THE EDGE OF THE DREAM (2006);
101. Alan Hyde, New Institutions for Worker Representation in the United States: Theoretical Issues, 50 N.Y.L. SCH. L. REV. 385 (2005).
102. Boaventura de Sousa Santos notes the turn in the global North from working class parties and labor unions toward a plurality of modes of organization and methodologies with social transformative goals. Boaventura de Sousa Santos, Beyond Neoliberal Governance: The World Social Forum as Subaltern Cosmopolitan Politics and Legality, in LAW AND GLOBALIZATION FROM BELOW 29, 43 (Boaventura de Sousa Santos & César A. Rodríguez-Garavito eds., 2005).
103. See Marion Crain & Ken Matheny, Labor's Identity Crisis, 89 CALIF. L. REV. 1767, 1775, 1828-29 (2001);
104. Jim Pope, Next Wave Organizing and the Shift to a New Paradigm of Labor Law, 50 N.Y.L. SCH. L. REV. 515, 533 (2005-06);
105. The pro-immigrant stance of organized labor coincided with the election of John Sweeney in 1995. Peter T. Kilborn, Why Labor Wants The Tired and Poor, N.Y. TIMES, Oct. 29, 1995, at E3. Unions are now actively seeking immigrant members, directly and through immigrant organizations.
106. See also Stephen Franklin, Farm union helps in recruiting and hiring immigrant workers, HOUS. CHRON., Apr. 19, 2006, § Business, at 3;
107. Steven Greenhouse, Labor Federation Forms a Pact with Day Workers, N.Y. TIMES, Aug. 10, 2006, at A18.
108. See Fine, supra note 54, at 5 (indicating that the worker center classification includes a range of organizations, including those serving African-Americans, mixed immigrant and nonimmigrant populations, and workfare recipients but that the vast majority of the organizations serve immigrant commumties).
109. See Julie Yates Rivchin, Building Power Among Low-Wage Immigrant Workers: Some Legal Considerations for Organizing Structures and Strategies, 28 N.Y.U. REV. L. & SOC. CHANGE 397, 410-16 (2004)
110. ("[T]he [NLRA]'s strict regulation of organizing tactics may present difficulties for ,a workers' center, and even undermine the ability of a campaign to meet the center's overall goals. The NLRA prohibits secondary boycotts under most circumstances, places restrictions on picketing, and also limits the way in which racial issues can be addressed in union certification election campaigns." Id. at 410 (citations omitted)).
111. Congress, the courts, and the NLRB have sought to regulate labor organizations' secondary boycott, see 29 U.S.C. § 158(b)(4)(B) (prohibiting union actions against third parties), and picketing activities. See also Int'l Hod Carriers Local 840, 135 N.L.R.B. 1153 (1962) (interpreting 29 U.S.C. § 158(b)(7) as placing restrictions on the time and purpose of pickets). Worker centers have successfully evaded the labor organization classification, and the corresponding legal limits placed on their campaign tactics, through effective defensive advocacy before the NLRB. See infra note 129.
112. The white male leadership of most unions through the 1990s downplayed race and gender-based concerns within the movement and at worksites. See Pope, supra note 56, at 530 ("Most union officials shied away from alliances with social movements like the civil rights movement and the women's movement, viewing them as threats both to the stability of collective bargaining relationships and to their own job security as aging white men at the helm of increasingly diverse and female organizations." Id. (citation omitted)). This stance together with the antipathy held by unions against immigrants, ensured that worker centers, such as Chinese Staff and Workers Association and Andolan Organizing South Asian Workers, would lead the fight against intra-community racism, classism, and caste-ism.
113. For background on Change to Win campaigns, see, e.g., William Glanz, Union Targets Janitors for Organizing, WASH. TIMES, Jan. 26, 2006 at ClO;
114. Jim Newton, Hotel Campaign Signals Labor's Ascent in L.A., L.A. TIMES, Mar. 27,2006, at 1.
115. The model of providing worker centers with outside legal counsel on federal litigation through clinical legal education was originated by Michael J. Wishnie and Nancy Morawetz, law professors and co-directors of the NYU School of Law Immigrant Rights Clinic (NYU-IRC), in early collaborations with Chinese Staff and Workers Association, National Mobilization Against Sweatshops, and Andolan. See also infra note 63.
116. Andolan, which means "movement" in several South Asian languages, is a community group of low-wage immigrant South Asian workers. Andolan seeks to empower its members by educating them about their workplace rights, advocating for living wages, raising public awareness surrounding abusive industry conditions-particularly in the areas of domestic, restaurant, and retail work, and litigating against exploitative employers. See Andolan, About Us, http://andolan.net/about-us.htm (last visited Aug. 15, 2007). See also Albor Ruiz, Battling Diplo Abuse of Workers in Homes, N.Y. DAILY NEWS, Oct. 7, 2004, at 4 (highlighting Andolan's campaign against diplomatic immunity, which shields diplomats from prosecution when they employ housekeepers and nannies and violate labor laws).
117. Domestic Workers United (DWU) represents members in an industry that includes more than 600,000 women in the greater New York Metropolitan area. DWU was founded by workers and organizers with the Women Workers Project of Committee Against Anti-Asian Violence. DWU engages in a variety of organizing and lobbying activities, including recent efforts to promulgate a standard domestic worker contract throughout New York that would provide for a living wage and dignified employment. See Chisun Lee, Domestic Disturbance, VILLAGE VOICE, Mar. 19, 2002, at 31-32, 35 (profiling DWU's attempts to organize domestic workers during recent rights awareness campaign);
118. Ai-jen Poo & Eric Tang, Center Stage: Domestic Workers Organizing in the Global City, in THE NEW URBAN IMMIGRANT WORKFORCE 105-18, supra note 8; DWU Homepage, http://www.domesticworkersunited.org/ (last visited Aug. 15, 2007).
119. The Taxi Workers' Alliance was founded in 1998 when it coordinated a massive 40,000 driver strike in New York City. See BUU MATHEW, TAXI!: CABS AND CAPITALISM IN NEW YORK CITY (2005);
120. Somini Sengupta, Deploring Giuliani Proposals, Cabbies Shun Fares for a Day, N.Y. TIMES, May 14, 1998, at Al;
121. Hilary Russ, Making Change: Organizing Drivers, CITY LIMITS MAGAZINE, July-Aug., 2002, available at http://www.citylimits.org/content/articles/viewarticle.cfm?article_id=2787 (last visited Aug. 15, 2007).
122. Currently, the Alliance represents approximately 6,000 members and works to promote economic and civil rights for taxi drivers. In 2004, the Alliance successfully lobbied the NYC Taxi and Limousine Commission to increase taxi fares by 26%. See Michael Luo, Taxi Commission Backs a 26% Rise for Fares in City, N.Y. TIMES, Mar. 31, 2004, at Al.
123. The alliance is currently involved in a campaign to block the installation of GPS trackers in all NYC taxi cabs. See Pete Donohue, DOI To Delay launch of Space Age Cabs, N.Y. DAILY NEWS, Mar. 20, 2006, at 3.
124. The alliance was invited to join the New York City Central Labor Council in 2006. See Steven Greenhouse, Taxi Workers ' Alliance May Join Labor Group, N.Y. TIMES, NOV. 14, 2006, at B3.
125. Wage and hour law is quite accessible to law students and relatively uncomplicated at its core. Further, the cases have allowed students to gain incremental proficiency in more challenging parts of the field, such as
126. There is much more to say on the benefits and challenges of these collaborations for clinical legal education and the development of public interest law and these arguments are partly the focus of my other scholarly work.
127. See Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 NW. U. L. REV. 1251, 1277-81 (2006);
128. Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. Rev. 443, 450-60 (2001).
129. Please note that this is a partial list and does not reflect all of the dedicated attorneys and organizations working to protect the rights of immigrant workers.
130. See 29 U.S.C. § 201 et seq.
131. See generally Peter Kwong, Chinese Staff and Workers' Association: A Model for Organizing in the Changing Economy?, 25 SOC. POL'Y 30 (1994).
132. See also Steven Greenhouse, Lawsuit Accuses Fashion House of Running Sweatshops, N.Y. TIMES, June 8, 2000, at B10, (CSWA organized with the named plaintiffs to bring a class action lawsuit filed by AALDEF against Donna Karan);
133. Andrew Hsiao, 100 Years of Hell-Raising: the Hidden History of Asian American Activism in New York City, VILLAGE VOICE, June 23, 1998, at 67 (CSWA instigated demonstrations against Street Beat, a sportswear company, in conjunction with a lawsuit filed by AALDEF).
134. See Victor Narro, Impacting Next Wave Organizing: Creative Campaign Strategies of the Los Angeles Worker Centers, 50 N.Y.L. SCH. L. REV. 465, 471-81 (2005-06).
135. See Singh v. Jutla & C.D. & R.'s Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002) (plaintiff represented by LAS-ELC, National Immigration Law Center, and pro bono attorneys from Brobeck, Bribeck, Phleger & Harrison, LLP; Hoffman Plastic does not bar undocumented immigrants from recovering back pay for work already performed); Christopher Ho & Jennifer C. Chang, Drawing the Line After Hoffman Plastic Compound, Inc. v. NLRB: Strategies for Protecting Undocumented Workers in the Title VII Context and Beyond, 22 HOFSTRA LAB. & EMP. L. J. 473, 496 (2005) (discussing cases that limit the Hoffman Plastic holding in context of FLSA, Workers' Compensation, and tort cases). See also Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) (plaintiff represented by Urban Justice Center and civil rights firm Koob & Magoolaghan); Zeng Liu v. Donna Karan Int'l, Inc., 207 F.Supp.2d 191 (S.D.N.Y. 2002) (plaintiff represented by AALDEF & employment firm Outten & Golden).
136. See Rivera v. NIBCO, Inc., 364 F.2d 1057, rehearing and rehearing en banc denied, 384 F.3d 822 (9th Cir. 2004), cert, denied, 544 U.S. 905 (2005) (LAS-ELC represented plaintiffs and NELP and National Employment Lawyers Association submitted amicus briefs; discovery of immigration status would chill immigrant workers' exercise of legitimate right to remedies under Title VII);
137. Ho & Chang, supra note 72, at 497-517 (discussing Title VII cases interpreting Hoffman Plastic and legal theories to limit its holding).
138. See N.Y. C.P.L.R. 3211, 3212 (McKinney 2007);
139. N.Y. CIV. RIGHTS LAW §§ 70-a, 76-a (McKinney 2007).
140. We have partnered with the Latin American Workers Project in Brooklyn and the Queens Community House ESL program in Jackson Heights, New York.
141. See Victor Narro, Impacting Next Wave Organizing: Creative Campaign Strategies of the Los Angeles Worker Centers, 50 N.Y.L. SCH. L. REV. 465, 487-95 (2005-06).
142. See, e.g., NELP, Holding the Wage Floor: Enforcement of Wage and Hour Standards for Low-Wage Workers in an Era of Government Inaction and Employer Unaccountability (2006), http://www.nelp.org/docUploads/ Holding%20the%20Wage%20Floor2%2Epdf (last visited Aug. 15, 2007) (providing data on violations common to specific industries and suggesting recommendations for legislative and organizing campaigns); NELP, Analysis of Certain Key provisions of HR 4437 (Sensenbrenner-King) Impacting Worker Centers (2006), http://www.nelp.org/docUploads/analysis%20of%20certain%20key%20provisions%2Epdf (last visited Aug. 15, 2007) (highlighting an expanded definition of smuggling and preemption of state and local laws designed to support day labor centers among other provisions). See generally NELP, Immigrant Worker Project, http://www.immigrantnonstandard.org/page.php?section=immigrant&page==index (last visited Aug. 15, 2007); NILC Immigrants & Employment Index, http://www.nilc.org/immsempltmnt/index.htm (last visited Aug. 15, 2007) (including a Hoffman amicus curiae brief and resource material for immigrant workers, organizers, and legal advocates).
143. NYU-IRC provided legislative counsel to DWU on a new municipal law that strengthened local regulation of employment agencies for nannies. See Steven Greenhouse, New Protections for Nannies are Approved by Council, N.Y.TIMES, May 15,2003, at B3.
144. See Inter-American Court of Human Rights (IAC) OC-18 (2003), translated excerpt of decision available at http://www. immigrantnonstandard.org/page.php?section=immigrant&page= human-rights-translated (last visited Aug. 15, 2007) (amicus brief filed by NELP, Professor Sarah Cleveland of University of Texas School of Law, Professor Beth Lyon of Villanova University School of Law, NILC, and Northwest Worker Justice Center; case brought by Mexico against U.S. in reaction to the Supreme Court holding in Hoffman Plastic and the consequent limits on rights of immigrant workers in U.S.).
145. See Petition Alleging Violations of the Human Rights of Undocumented Workers by the U.S. (Nov. 1, 2006), available at http://www.aclu.org/images/asset_upload_file946_27232.pdf (last visited Aug. 15, 2007) (filed with IAC by ACLU, University of Pennsylvania Transnational Legal Clinic, and NELP on behalf of immigrant workers pursuant to the Universal Declaration of Human Rights).
146. See Michael J. Wishnie, Immigrant Workers and the Domestic Enforcement of International Labor Rights, 4 U. PA. J. LAB. & EMP. L. 529, 543-57 (2002); Mexico NAO No. 01-01 (Feb. 2002) (petition filed pursuant to North American Agreement for Labor Cooperation [NAALC] by CSWA and National Mobilization Against Sweatshops [NMASS] against New York State Workers' Compensation Board due to delays in the adjudication of injured workers' claims).
147. See Mexico NAO No. 9804 (1998), Canada NAO No. 9802 (1998) (petitions filed pursuant to the NAALC by workers' rights coalition against the collaboration between U.S. immigration and labor enforcement agencies).
148. See Katherine Van Wezel Stone, Labor and the Global Economy: Four Approaches to Transnational Labor Regulation, 16 MICH. J. INT'L L. 987, 1024-25 (1995) (critique of crossborder monitoring approach used in NAALC). The International Labor Rights Fund (ILRF), which collaborates extensively with organized labor, and Professor Lance Compa of the Cornell School of Industrial and Labor Relations were important progenitors of the use of international law and tribunals on behalf of U.S. workers.
149. See generally Lance Compa, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE U.S. UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS (2004); ILRF campaign materials, available at www.laborrights.org (last visited Aug. 15, 2007).
150. See Wishnie, supra note 81, at 538-43.
151. These categories are derived from the analysis set out by Cummings and Eagly, see supra note 67, After Public Interest Law at 1268-82.
152. This is changing as more private law firms become involved in class action wage and hour litigation. E.g., Outten & Golden, Shelly's New York/Fireman Hospitality Group Withheld Tips, Minimum Wages, and Overtime Case, http://www.outtengolden.com/firm/practice/classactions/#225 (last visited Aug. 15, 2007) (Outten & Golden and co-counsel AALDEF are currently representing worker-members of ROC-NY in a class action against an upscale Midtown Manhattan restaurant); Leiff Cabraser, Practice Areas: Employment Law, http://www.lieffcabraser.com/practice_areas.htm#employment (last visited Dec. 26, 2006) (describing 2002 case in which the firm represented assembly line workers at Perdue Farms chicken plants and settled for $10 million). However, public interest lawyers will remain attorneys of first resort for worker centers for reasons set out in Section III.B, infra (noting willingness of lawyers for worker centers to resist conservative interpretations of the professional responsibility rules).
153. See David Luban, Taking Out the Adversary: The Assault on Progressive PublicInterest Lawyers, 91 CALIF. L. REV. 209, 220-26 (2003).
154. See Juliet M. Brodie, Post-Welfare Lawyering: Clinical Legal Education and a New Poverty Law Agenda, 20 WASH. U. J. L. & POL'Y 201, 225 (2006) (discussing the need to adapt legal services for individuals pushed into the low-wage labor market by welfare reform).
155. See Luban, supra note 87, at 236-41.
156. Conservative media outlets, such as the NEW YORK POST and the CITY JOURNAL (a quarterly issue by the Manhattan Institute), regularly called on Governor Pataki, Mayor Giuliani, and the CUNY Board of Trustees to shut down the law school in the last decade. See Heather Mac Donald, CUNY Could Be Great Again, CITY JOURNAL, Winter 1998, available at http://www.cityjournal.org/ html/8_1_cuny_could.html (last visited Aug. 15, 2007) (CUNY Law is "irredeemably rotten" with its "1960s-style curriculum in political organizing and consciousness-raising");
157. Editorial, Close CUNY Law School, N.Y. POST, January 19, 1999, at 28, CUNY Before the Bar, N.Y. POST, Dec. 8, 2002, at 24;
158. Editorial, The School We Don't Need, N.Y. POST, May 3, 2003, at 14.
159. See, e.g., Stephen Loffredo, Poverty Law and Community Activism: Notes from a Law School Clinic, 150 U. PENN. L. REV. 173, 189-96 (2001) (describing a collaboration between a CUNY clinic and a grassroots organization of welfare recipients).
160. Students ranked the cases on which they wanted to work (in the CUNY-IRRC that year, the choice was between asylum, Violence Against Women Act, and immigrant worker cases) and they were assigned to teams on the basis of those preferences.
161. Emily Grajales, William Massey, Johnda Powers, and, later, Jesse Gribben constituted the first student team from CUNY-IRRC to work on this case and draft the complaint.
162. Hollis Pfitsch, Sebastion Riccardi, and Greg Sharma-Holt constituted the second team and negotiated the settlement agreement. This team was composed of a student with a background in organized labor, another who had worked with immigrant workers at a non-profit in the Northwest prior to law school, and a third student who had worked with ACORN.
163. See, e.g., Edward Lewine, Making Mexicans His Mission, N.Y. TIMES, Apr. 5, 1998, at 14-1.
164. See N.Y. LAB. LAW §§ 650-665; 12 NYCRR 142.
165. See 29 U.S.C. § 201 et seq. The statute also included prohibitions on child labor and retaliation by employers against employees who complain of violations. FLSA specifically excluded agricultural and domestic labor, largely as a result of compromise with senators from the South where African-Americans constituted the vast majority of workers in these sectors. See also Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981, 1041-43 (2002) (discussing historical exclusions and limitations of FLSA in light of its grounding in the Commerce Clause rather than the anti-slavery Reconstruction Amendments);
166. Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 TEX. L. REV. 1335, 1371-80 (1987) (discussing FLSA legislative history).
167. See 29 U.S.C. § 216.
168. The minimum wage in New York is $7.15 as of January 1, 2007. See N.Y. LAB. LAW § 652.
169. See generally Steven E. Abraham, How the Taft-Hartley Act Hindered Unions, 12 HOFSTRA LAB. L.J. 1 (1994);
170. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1533-34 (2002);
171. Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Law?, 47 CATH. U. L. REV. 763 (1998).
172. See Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARV. L. REV. 1379, 1412-30 (1993);
173. Michael C. Harper, The Case for Limiting Judicial Review of Labor Board Certification Decisions, 55 GEO. WASH. L. REV. 262, 298 & n.163 (1987);
174. James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 TEX. L. REV. 1563, 1575-1580, 1588-1591 (1996) (summarizing Supreme Court decisions which restricted the collective bargaining process-particularly after 1970, and theorizing the Court's refusal to adhere to NLRA policy);
175. Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265,291-93(1978).
176. E.g., Marc Linder, Closing the Gap Between Reich and Poor: Which Side is the Department of Labor On?, 21 N.Y.U. REV. L. & SOC. CHANGE 1 (1993) (criticizing the DOL's regulatory definition of FLSA's salary test).
177. See also Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals, 141 U. PA. L. REV. 457, 531-33 (1992) (summarizing the problems of agency enforcement of labor laws, including Title VII, NLRA, FLSA, OSHA, and Workers Compensation);
178. Id. at 545-46 ("Government agencies are too often hobbled by budget limitations and too vulnerable to political appointees who are unsympathetic to the substantive rights meant to be protected.").
179. There are approximately eighty million workers covered by FLSA, and only 946 DOL investigators; federal enforcement alone is not enough to enforce FLSA to the fullest extent possible. Brief for the Secretary of Labor as Amicus Curiae Supporting Appellants, Bailey v. Gulf Coast Transp., Inc. 280 F.3d 1333 (11th Cir. 2001) (No. 01-12379), available at http://www.dol.gov/ sol/media/briefs/baileyvgulfcoast(A)-6-10-2002.htm (last visited Aug. 15, 2007) (supporting a private right of action for FLSA's antiretaliation provision).
180. See also Bernhardt & McGrath, supra note 20.
181. The conservative critique of public interest law is well known and well documented (even as right-wing movements have entered the arena of impact litigation for social change). See generally Luban, supra note 87.
182. See generally DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE) (1997);
183. Roberto Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 567-76 (1983) (setting forth critiques of objectivism and formalism in legal thought and process).
184. See Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM, supra note 2, at 196-97.
185. See id. at 212.
186. See Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563, 1581-86 (1984) ("[E]xisting rights-thinking attributes a 'falsely concrete' or frozen character to what are always contingent or merely possible social phenomena." Id. at 1581).
187. The welfare rights movement suffered through this political dynamic, in which advocates successfully used judicial action to create a right to due process when the government attempted to end subsistence payments to poor people, Goldberg v. Kelley, 397 U.S. 254 (1970), which process was later proscribed by efficiency concerns when the progressive moment passed in Mathews v. Eldridge, 424 U.S. 319 (1976).
188. See Mark Tushnet, The Critique of Rights, 47 SMU L. REV. 23, 27-29 (1993).
189. But see Scott Barclay & Shauna Fisher, Cause Lawyers in the First Wave Same Sex Marriage Litigation, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 84-100 (Austin Sarat & Stuart Scheingold, eds. 2006) (discussing the positive effects on a grassroots movement of an unsuccessful litigation strategy).
190. See STUART SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE (1974).
191. Gerald Rosenberg made a similar critique from a different political position and argued that the legalization of political movements has ultimately disserved political movements and impaired legal institutions. See GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
192. See, e.g., Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System, 59 U. CHIC. REV. L. 575, 638 (1992).
193. It is important to note that critical legal scholars were centrally focused on the advancement of left causes within and outside the legal academy and the debate was, on an underlying theoretical level, about strategy and tactics rather than goals. Some scholars incorporated the insights of the critical legal scholars in their work while arguing for continued engagement in concrete projects for social justice. See, e.g., Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. REV. 589 (1986) (documenting the interrelationship between rights and politics from experience in a particular social movement);
194. Ed Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 STAN. L. REV. 509 (1984) (challenging critical legal scholars to reconnect their doctrinal analysis to progressive social movements).
195. Two scholars who skillfully deployed client narratives to facilitate theoretical interventions into public interest practice were Gerald Lopez and Lucie White. In REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1989), Lopez criticized lawyers representing poor communities for undercutting commimity leadership and minimizing lay knowledge.
196. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1989).
197. Lawyers in poor communities set out to do good, but as a result of their own race and class assumptions and the dominant assumptions of the legal profession, their work only exacerbates the conditions of powerlessness felt by their clients. Lopez effectively brought Derrick Bell's race and class critique of the Brown v. Board of Education impact litigation strategy to frontline legal services offices. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976).
198. Lopez developed a set of tactical changes that could transform poverty lawyering and advance a community empowerment agenda with a foundation in lay lawyering and leadership. Meanwhile, White internalized critical legal scholarship and applied the insights of feministtheory and postmodern political and literary thought in her analysis of selected case studies. Such cases include an African-American woman who speaks truth to power in her welfare hearing, see Lucie E. White, Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs. G, 38 BUFF. L. REV. 1 (1990), or the plaintiff class in a welfare suit that used speak-outs and the homeless people who used street theater to build community.
199. See Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535, 546-63 (1987-88).
200. See also Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U REV. L. & SOC. CHANGE 369 (1983).
201. These legal academic interventions had a sustained and widespread impact on public interest law, from impact litigation to frontline legal services offices, both directly through the work itself and indirectly through the internalization of their insights by law students filtering into varied practice settings. See generally Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 CLINICAL L. REV. 427 (2000) (analyzing the theoretical insights of Lopez, White, and Anthony V. Alfieri, refuting critiques, and surveying applications of the work).
202. However, the impact was also uneven, as the extension and application of the ideas and the implementation of innovative tactics and strategies were left to a wide range of practitioners. It cannot be said that lawyering is no longer "regnant." It seems predestined that there will always be regnant lawyers who pursue established modes of practice and rebellious lawyers who deliver legal services in new forms to more effectively achieve social justice ends. In considering innovative approaches to public interest law in the current context, it is essential to understand the pervasive influence of these scholars on the evolution of practice over the last two decades. See Joel F, Handler, Postmodernism, Protest, and the New Social Movements, 26 LAW & SOC'Y REV. 697 (1992);
203. Cummings & Eagly, A Critical Reflection on Law and Organizing, supra note 67, at 456-60.
204. See Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107 (1991).
205. See generally RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (2004).
206. See White, Subordination, Rhetorical Survival Skills and Sunday Shoes, supra note 113.
207. See Orly Lobel, The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 959-62 (2007) (critically discussing the concept of "lay lawyering").
208. See id. at 978-82 (discussing the perils of a retreat by progressives to the extralegal sphere).
209. See Cummings and Eagly, supra note 67.
210. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (foreclosing the NLRB from awarding backpay to undocumented workers).
211. See id.
212. See National Labor Relations Board, Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc. (July 19, 2002), http://www.nlrb.gov/gcmemo/gc02-06.html (last visited Aug. 15, 2007);
213. Employment Standards Administration Wage and Hour Division, U.S. Department of Labor, Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastic decision on laws enforced by the Wage and Hour Division, http://www.dol.gov/esa/regs/compliance/whd/whdfs48. htm (last visited June 18, 2005) ("The Department's Wage and Hour Division will continue to enforce the FLSA and MSPA without regard to whether an employee is documented or undocumented. Enforcement of these laws is distinguishable from ordering back pay under the NLRA." Id.).
214. In the U.S. specifically, the Supreme Court has used a series of techniques to strip private individuals of their ability to enforce civil rights laws, such as by expanding the scope of sovereign immunity and the scope of compelled arbitration under the Federal Arbitration Act, while reducing the availability of implied rights of action and attorneys fees. See Pam Karlan, Disarming the Private Attorney General, 2003 U. III. L. REV. 183 (2003). Sylvia Law analyzed the federalism "revolution" in Supreme Court jurisprudence and surveyed the negative impact on workers and other vulnerable populations.
215. See Sylvia Law, In the Name of Federalism: The Supreme Court's Assault on Democracy and Civil Rights, 70 U. CIN. L. REV. 367 (2002). In Alexander v. Sandoval, 532 U.S. 275 (2001), the Court decided that individuals do not have a private right of action for discriminatory disparate impact on the basis of race, ethnicity, or national origin against recipients of federal funding under Title VI. The Buckhannon (2001) court curtailed the private enforcement of civil rights statutes by imposing a narrow definition of "prevailing party" for the purpose of determining defendant's liability for plaintiffs attorneys' fees.
216. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). In Alden v. Maine, 527 U.S. 706 (1999), the Court denied a private claim under the Fair Labor Standards Act against the State of Maine on the basis of state sovereignty. Each of these cases narrows the range of civil rights litigation that may be brought by private litigants.
217. See WILLIAM B. GOULD, INTERNATIONAL LABOR STANDARDS: GLOBALIZATION, TRADE, AND PUBLIC POLICY (Robert J. Flanagan & William B. Gould IV eds., 2003) ("[The Hoffman Plastic] ruling which creates an incentive for American employers to employ workers to whom labor law protection is denied constitutes a compelling argument in favor of the proposition that the West, and particularly the U.S., is not concerned with the plight of vulnerable immigrant workers who hail from the poor nations but rather the interests of entrepreneurs within our borders." Id. at 95).
218. See Marianne Staniunas, All Employees Are Equal, But Some Employees Are More Equal Than Others, 6 U. PA. J. LAB. & EMP. L. 393, 399-400 (2004) (noting that employers seek out undocumented workers because of their inability to seek enforcement of statutory labor protections).
219. See generally Katherine Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509 (1981) (arbitration has successfully removed labor disputes from the public sphere, preventing the development of a more vigorous class consciousness in the labor movement).
220. Additionally, and not of minor significance for a law school clinic, expedient discovery advanced pedagogical goals in exposing the student team to pre-trial procedure during the time that they were in the clinic. Michael J. Wishnie, Clinical Professor of Law at Yale Law School, shared this insight with me based on his experience at NYU-IRC.
221. One federal judge lectured the attorneys and parties in a wage and hour case, that I litigated with NYU-IRC, about the fact that he was used to adjudicating large-scale corporate litigation and that we did not belong in his courtroom. In spite (or because) of his feelings, he took a personal role in settlement negotiations and pushed the parties hard to come to an agreement, in a way that could be said to have benefited the immigrant worker plaintiffs.
222. In a recent CUNY-IRRC wage and hour case on behalf of a domestic worker, a federal magistrate judge, who delayed adjudication of our motions to compel discovery, acted quickly when defendants complained to the court about demonstrations in front of a small business that they own. The worker was ordered to appear before the judge for an evidentiary hearing in which she was questioned about her membership in the worker-center that was organizing the protests as well as her prior knowledge of the events. Defendants did not allege a specific legal theory that would allow the court to prohibit First Amendment activities, but the court was quick to impute a jury-tainting theory, which it ultimately rejected on the basis of clear contrary precedent in the district. Lopez v. Meluzio et al., No. 05-00009 (E.D.N.Y. Aug. 23, 2006) (order adopting report and recommendation of magistrate denying defendants' motion for injunctive relief).
223. See 29 U.S.C. § 158(b).
224. One of the CUNY-IRRC students linked ROC-NY with an experienced labor lawyer, Dan Clifton, who successfully defended the organization before the NLRB. He recently achieved a significant victory for the organization and worker centers around the country by convincing the NLRB that ROC-NY is not a labor organization and thus is not required to meet the filing burdens under the Labor-Management Reporting and Disclosure Act. 29 U.S.C. § 401 et seq. (1959) (amended 1987); 29 U.S.C. § 402(i) (defining "labor organization"), §§ 431-441 (setting forth reporting requirements). More importantly, worker centers are not bound by the NLRA's constraints on secondary boycotts and picketing. See supra note 58.
225. See, e.g., N.Y. LAWYER'S CODE OF PROFESSIONAL RESPONSIBILITY Disciplinary Rule (DR) 5-107 [1200.26] (B) ("Unless authorized by law, a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal service for another to direct or regulate his or her professional judgment in rendering such legal services, or to cause the lawyer to compromise the lawyer's duty to maintain the confidences and secrets of the client under DR 4-101 [1200.19](B)."Id.).
226. The Code also prohibits lawyers from taking cases in which their exercise of professional judgment may be affected by their own personal interest. See id. at DR 5-101. Applied stringently, this rule would be grounds for disciplinary sanctions against most public interest lawyers, on both the right and the left. However, the organized bar seems to accept some degree of deviation from the formal rules to accommodate public interest legal activities that legitimize the profession and mitigate the public perception that lawyers serve a fundamentally mercenary and amoral function in society. See AUSTIN SARAT & STUART SCHEINGOLD, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 3-5 (1998).
227. See 29 U.S.C. § 158(a).
228. The team was not aware of the nature of the fee arrangement between the employer and the large law firm that it used. It is possible that the firm was receiving flat fees for services rather than billing by the hour. The senior attorney on the case, who was also the managing attorney of the firm's New York office, had a long-term relationship with the founder and C.E.O. of the parent company and related this to the team to indicate his delegated authority in negotiations.
229. See supra note 34.
230. We counseled our clients to refuse to sign a broad confidentiality agreement for political reasons - because they may choose to reveal information that they acquire in civil litigation to ROC-NY or HERE - and for practical reasons - because organizers might help them interpret and understand materials turned over by defendants.
231. It was at this hearing that the judge-angered at one point by his perception that plaintiffs were being unreasonable and having recently been assigned a related case about work conditions at another of the parent company's restaurants-lectured the legal team on what he viewed as its role. He said derisively that the lawyers were not to use a case in his court to advance a cause or to transform overall conditions in the industry. He instructed the team to litigate the individual case and not to be unreasonable in negotiations. I was momentarily speechless since the primary reason we had taken the case was to transform conditions in the industry.
232. Tony Lu and Haeyoung Yoon with the Community Development Project of the Urban Justice Center filed a second wage and hour suit and Alex Reinert, an associate with the private civil rights law firm of Koob & Magoolaghan, represented workers before the Equal Employment Opportunity Commission on discrimination grounds.
233. See supra note 75.
234. Discussed supra Sec. II.B.3.
235. See supra note 130.
236. The corporation also tried to pressure ROC-NY through less formal means. The wellknown C.E.O. sent letters to ROC-NY's funders, emphasizing that the sympathetic support center for 9/11 workers and families had morphed into a Marxist activist group. These letters had no discernible effect on the organization's sources of funding, though it was hard for ROC-NY to know whether reduced grants or severed funding relationships were the indirect result of the restaurant's corporate campaign against the organization.
237. See Steven Greenhouse, Two Restaurants to Pay Workers $ 164,000, N.Y. TIMES, Jan. 12, 2005, at B3.
238. See also Lynda Richardson, Public Lives: For the Kitchen Help, She Stands the Heat, N.Y. TIMES, Jan. 21, 2005, at B4.
239. See Rajagopal, supra note 5, at 184-85.
240. Louise Trubek marked this transition in public interest law in the context of her discussion of the changing work of the Center for Public Representation in Wisconsin. See Louise Trubek, Old Wine in New Bottles: Public Interest Lawyering in an Era of Privatization, 28 FORDHAM URB. L.J. 1739 (2001).
241. For examples of the legislative successes of worker centers in New York, see Greenhouse, supra note 79 (Domestic Workers United campaign);
242. Michael Luo, Taxi Commission Backs a 26% Rise For Fares in City, N.Y. TIMES, Mar. 31, 2004, at A1 (NY Taxi Workers' Alliance campaign).
243. See Lobel, supra note 117.
244. See supra text accompanying notes 114-117.
245. Gary Bellow best captured the possibilities of a dynamic and committed relationship between lawyer and client to which the team aspired: Alliance seems as good a word as any to describe this relationship because alliances generate bonds and dependencies and are grounded, at least in aspiration, in forms ofrespect and mutuality that are far more personal and compelling, for many of us who do political legal work, than the demands of some notion of client-centered lawyering, no matter how strongly held. Alliance also seems to offer an ideal that permits us to talk seriously about purposive judgment-when and whether to intervene or to seek influence-in situations in which one has
246. Cf. Jennifer Gordon, Law, Lawyers, and Labor: The United Farm Workers 'Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, 8 U. PENN. J. LAB. EMPL. L. 1, 47-49 (2005) (discussing creation of the union's legal department five years after its establishment and thus subordinate to the union's larger goals; in-house legal department strengthened rather than weakened lawyer accountability).
247. For a discussion of similar problems, see Austin Sarat & Stuart A. Scheingold, What Cause Lawyers Do For, and To, Social Movements, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 109, at 2-3 (discussing constraints imposed by social movements on affiliated lawyers).
248. It is necessary to represent groups of relatively powerless people rather than individuals and that this devotion to collective representation did not disempower individuals but was necessitated by the adversarial context in which we fought. See Gordon, supra note 149, at 10-44 (describing the collaboration between UFW organizers and lawyers).
249. See Stephen Ellmann, Client-Centeredness Multiplied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers' Representation of Groups, 78 VA. L. REV. 1103 (1992) (Ellmann discusses the challenges of group representation in a non-union context and develops tactics with which to approach the problem of collective representation in a highly individualized profession. It is important to do more work along these lines (as well as the work being done by Jennifer Gordon to map the collaborations between lawyers and activist unions) to alter the professional self-conception of public interest lawyers).
250. See PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991);
251. Kimberle Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988).
252. See supra Sec. II.B.3.
253. See Rajagopal, supra note 5, at 170.
254. But see Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE LJ. 1860 (1987)
255. ("Nonetheless, I worry about criticizing rights and legal language just when they have become available to people who had previously lacked access to them. I worry about those who have, telling those who do not, 'you do not need it, you should not want it.' But, rather than trash rights, I join in the efforts to reclaim and reinvent them. Whether and how to use words to constrain power are questions that should be answered by those who lack it. For this task, rights rhetoric is remarkably well-suited. It enables a devastating, if rhetorical, exposure of and challenge to hierarchies of power." Id. at 1910).
256. de Sousa Santos & Rodriguez-Garavito, Law, Politics, and the Subaltern in Counterhegemonic Globalization in LAW AND GLOBALIZATION FROM BELOW, supra note 5 at 15 (2005).
257. See, e.g., Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004);
258. William Simon, Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism, 46 WM. & MARY L. REV. 127(2004).
259. de Sousa Santos & Rodriguez-Garavito, supra note 156, at 16.
260. See generally Karl Klare, Countervailing Workers' Power as a Regulatory Strategy, in LEGAL REGULATION OF THE EMPLOYMENT RELATION, Ch. 3 (Hugh Collins et al. eds., 2000).
261. See Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447, 461-62 (2000)
262. ("Yet, the fact that aliens enjoy these rights does not mean that their formal or nominal legal status vis-à-vis the political community in which they reside has changed. When citizenship is understood as formal legal membership in the polity, aliens remain outsiders to citizenship: they reside in the host country only at the country's discretion; there are often restrictions imposed on their travel; they are denied the right to participate politically at the national level; and they are often precluded from naturalizing. Furthermore, they symbolically remain outsiders to membership in the polity." Id. at 462 (citations omitted)).
263. See Gordon, supra note 14, at 156-73 (discussing the solidarity effects of rights talk and assertion and the creation of a new, more collective, immigrant identity).
264. See Lobel, supra note 117, at 942-59.
265. See FRANCES FOX PIVEN AND RICHARD CLOWARD, POOR PEOPLE'S MOVEMENTS: WHY THEY SUCCEED, HOW THEY FAIL 1-40 (1979) (describing how protest movements lose power through institutional accommodation and coercion).
266. Lobel accurately depicts the fear of cooption as a driving force in the acceptance or rejection by movement organizations of social justice strategies. Cooption has driven organizers and lawyers toward extralegal activism. However, I would not characterize the campaign described in this article or many of the legal collaborations with worker centers as a retreat from the law and toward civil society, as Lobel does. See Lobel, supra note 117, at 961-62.
267. In fact, movement organizations usually prevent their lawyers from yielding to the psychosocial allure of softer informal normativities (which characterize the non-adversarial and discursive governance structures advocated by Lobel and others, see supra note 157).
268. For most people, even lawyers, public confrontation is a more challenging enterprise than collaborative negotiations and the solidarity and direct action tactics of movement organizations embolden lawyers. Correspondingly, lawyers represent movement organizations in courts and legislatures on basic terms set by organizers and workers and allow the organizations to resist cooption while remaining engaged in law reform projects. See Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CALIF. L. REV. 775, 826-41 (1998) (illustrating the potential dialectic between political participation/law reform and transformative movement politics in the context of an environmental justice case study).
269. The ideas in this section in part reflect the work of Families for Freedom (FFF), a movement organization with which CUNY-IRRC collaborates but that is not a workers center. Founded in 2002, FFF is a New York-based non-profit organization that defends and supports immigrant communities against the federal government's aggressive detention and deportation policies. See FFF website homepage, http://www.familiesforfreedom.org (last visited Aug. 15, 2007).
270. Angela Harris describes this paradigm from a legal theoretical standpoint, in which default identity characteristics, such as race, gender, and sexual orientation, are neither ignored nor do they serve as the central organizing principle of social movements. Supra note 1, at 783-84.
271. Instead, as Robert Chang argues, "people of color" solidarity in the service of a progressive agenda must be built on the basis of a new subject position, one that comes with political commitments and through struggle. See Robert Chang, The End of Innocence or Politics After the Fall of the Essential, 45 AM. U. L. REV. 687, 690-94 (1996).
272. This substantive radical democratic project is central to the movement organizations described in this article, see id. at 692.
273. See Fran Ansley, Inclusive Boundaries and Other (Impossible Paths Toward Community Development in a Global World, 150 U. PA. L. REV. 353, 405-11 (2001) (setting forth an aspiration for globalized social movements in the U.S.).
274. Movement organizations such as ROC-NY, pursue the radical democratic engagement of its members in politics, not in grassroots activism outside of the sphere of the political process. See Lobel, supra note 117, at 963-64 (discussing the robust political engagement of the "M-stream" from the desiccated extra-political self-organization of the "L-stream" to define "civil society" and consigning grassroots activists to the latter)
275. (citing Charles Taylor, Invoking Civil Society, in WORKING PAPERS AND PROCEEDINGS OF THE CENTER FOR PSYCHOSOCIAL STUDIES 1-17)).
276. See generally de Sousa Santos and Rodriguez-Garavito, supra note 158.
277. See, e.g., TODD GITLIN, THE TWILIGHT OF COMMON DREAMS: WHY AMERICA IS WRACKED BY CULTURE WARS (1996).
278. See Penelope Andrews, Globalization, Human Rights, and Critical Race Feminism: Voices from the Margins, 3 J. GENDER RACE & JUST. 373, 395-99 (2000) (discussing critical race feminism application in international human rights);
279. Cornel West, The Role of Law in Progressive Politics, 43 VAND. L. REV. 1797 (1990).
280. See generally Victor C. Romero, Rethinking Minority Coalition Building: Valuing Self-sacrifice, Stewardship, and Anti-subordination, 50 VILL. L. REV. 823 (2005) (discussing the difficulties of coalition-building and proposing first principles that might overcome those challenges).
281. See Ngai, supra note 46, at 56-90 (discussing the construction of illegality through deportation policy).
282. See supra text accompanying notes 34-43.
283. Lucie White describes an aspirational "third dimension" model that sets a benchmark for what public interest lawyers can hope to achieve in collaboration with movement organizations. See Lucie White, To Learn and Teach: Lesson from Driefontein on Lawyering and Power, 1988 WIS. L. REV. 699, 760-68 (1988).
284. See supra notes 80-85.
285. See generally Rhonda Copelon, The Indivisible Framework of International Human Rights: A Source of Social Justice in the U.S., 3 N.Y. CITY L. REV. 59 (1998) (discussing the potential impact of international law applications in the U.S.).