Professor Steven Bender re: Justice and Advocacy

Guest: Professor Steven Bender, Seattle University School of Law
Associate Dean and Professor Steven Bender, Seattle University School of Law,
previously with the University of Oregon and national Society of American Law
Teachers (SALT) co-president. Discussion about research project on Justice and Systemic Advocacy.

Update 2021:

Professor Bender has published 2 more books: LatCrit: From Critical Legal Theory to Academic Activism, with Francisco Valdes, Critical Justice: Systemic Advocacy in Law and Society with Francisco Valdes and Jennifer Hill

Transcript

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SPEAKER_00 0:02

Hello and welcome to the Leadership Well podcast with insights and guests to empower learning, leading, and living well. I am delighted to be your producer and host, Natalie Muto Will. Information and recordings are available at the LeadershipWell Hub www.leadershipwealth.com. You are invited to tune in. Our guest today is Associate Dean and Professor Stephen Bender of Seattle University's School of Law, and previously with the University of Oregon. As faculty, Associate Dean, Director of the Green Business Initiative, and Co-Director of the Law and Entrepreneurship Center. A national academic leader on immigration law and policy, award recipient from the Association of American Law Schools, Minority Group Section, and Oregon Book Award for General Nonfiction. He's an elected member of the American Law Institute and previously served as co-president of the National Society of American Law Teachers. Professor Bender is a prolific author, including his books on Mia Colpa, Lessons on Law and Regret from U.S. history, Latinos Law and the American Imagination, Everyday Law for Latinos Latinas, and Compassionate Migration and Regional Policy in the Americas. Welcome, Professor Bender.

SPEAKER_01 1:34

Thanks for having me.

SPEAKER_00 1:36

So your current project, which has been uh quite a long-term endeavor along with your co-editors, is uh critical justice, systemic advocacy in law and society. I understand that you've been working on this book for about a decade.

SPEAKER_01 1:54

Pretty close to a decade now. It is a long process to create a book that's really unlike much of anything as a textbook that's out there, uh, trying to make up for many, many years of an absence of this knowledge in the student at whatever stage we get them, whether law students or before or after, um, is is quite an endeavor. And also to try and synthesize literally thousands of articles in the literature and um really decades and centuries of lawyering and advocacy more generally on social justice issues and trying to blend those two approaches has been um has been challenging and get it into something that's about 1200 um or so pages. Um and so it has been almost a decade-long uh project. But the pandemic has given an opportunity to really uh reflect deeply and and get this you know and get this book um finished. Um I'm very grateful to my two co-authors and uh you know for for uh being able to carve time into life as we know it these days.

SPEAKER_00 3:17

Yes, certainly uh this time has presented challenges and uh opportunities. And uh, even though it's been a decade that you've been working on it, it does seem very timely. And as you say, uh these issues are um long transcend uh a decade and even um uh centuries uh before that. Uh in the in the draft intro, which uh I appreciate you sharing, it suggests that the purpose is to provide a reliable, accessible, diverse, and adaptable resource for those seeking justice, including teachers, students, practitioners, organizers, and activists, with a hope that they can tailor basic points into actionable knowledge in today's context. So uh share with us more about your purpose and also how you've seen the landscape uh uh shift over this decade and and how it is currently today.

SPEAKER_01 4:12

Sure. So one of the things the book in its in its title um talks about um systemic um injustice and systemic and the need for systemic justice. So it's a terminology that that people are increasingly familiar with. You're hearing it uh literally on the streets, um, people talking in terms of the need for changing systems and for um systemic reform. And so what this book really tried to do is situated law as a system within a variety of other systems that the law is really empowering and enabling. So everything from economic systems like capitalism to the healthcare system, uh, to the criminal justice police system to the educational system, um all of those and subsystems, however you want to break them down, all have sort of law as the central catalyst. Um, and so um, while we normally expect that when students come to law school in particular, and that's our audience, that we're gonna try and glorify the law, this book does the exact opposite. It really breaks down the law and says the law by design is meant to fail in delivering justice. If justice is what we mean by or for what we mean by justice is equal justice, equality. Uh the law by design is going to deliver something different. And so we implicate law and within uh the failure of equal justice as experienced on the in the street, uh as experienced in homes, as experienced in the workplace, in sort of the lived material reality uh of groups and the public. And so it is a it is a it is a book uh that you necessarily, if you were touting um legal education, if you were touting like the American Bar Association, the glory of the legal profession, you wouldn't necessarily hand out the and hold up this book and say, it's all in here, how great the legal profession is, how great the law is and has been, because this is a very critical approach and takes up the question of, all right, if law has been implicated and really the driving force behind systemic injustice then and the lack of equal justice, then what from there? What next? What can make that change? Who can make that change? How can lawyers work with people trying to make things change for the better? And how can law students and other students learn and sort of serve their role toward that end? So it's trying to do all those things at once, which is a sprawling project and why both pages and time it's taken so long. But at the same time, um the systems that are embedded have been in place sometimes for centuries, you know, since colonialism. Um, and so um the resistance to that has been ongoing. Uh, but to try and capture all of that in one um snapshot and just sort of uh record all of that history and all of the knowledge is something that's a challenge to do. Um and we we certainly have found that to be the case. And we can talk later about some of the values we try and instill in the reader and in law students and in legal education that are necessary to counter those centuries of really ongoing injustice.

SPEAKER_00 8:03

So interesting because uh you you teach uh law students, and as you said, also this book can be applied by um those even if they're not law students. And so, in some ways, these are preparing people for careers in law, and also as you're saying, taking uh a perhaps critical approach of of the history. And so one of the things that that that comes to mind is the Einstein quote about uh that we can't solve problems by using the same kind of thinking that we use when we uh when we created them. So presumably you are your intentions is to is to be able to uh uh work with uh this generation of students, let's say, um, and those who also are um are seeking justice to help in in shifting the system uh that is. So what is your um how do you see that happening? How do you see shifting the legal system to better address uh justice and injustice?

SPEAKER_01 9:04

So the same people that created the system indeed aren't going to be the ones to fix it because their self-interest is in what they created. In fact, uh we make the clear point that the law is failing by design and it's not a broken system. It's functioning exactly as it was intended to do, which is to really normalize all of the underlying injustice, all of the underlying mechanisms and levers and strings that sort of uh preordain and predetermine the injustice along identity uh and other lines that we've that we're seeing in society were all emplaced and empowered through law, and by design they were that. So it's not like it's a broken system that needs to be reformed or fixed. And it's not necessarily going to be those people who created that system because they don't necessarily have a self-interest in fixing things. One of the insights from critical uh legal scholars, critical race theory in particular, is the interest convergence theory that in fact there will be progress for, in that case, uh a minority, um, African Americans, if the if it aligns with the societal interest in doing that. And it did in the civil rights era, in the Brown versus Board of Education 50s and the Civil Rights Act 60s. There was a very fleeting alignment of keeping out communist alternatives by showing that we can undo sort of facially discriminatory laws. We can deliver formal legal equality. Um, but that and meaningful everyday equality and economic equality are two completely different um things. So it's so the reform, the changing systems and changing ourselves is really going to come from those who are affected uh most by the system. And it's gonna come from their organizing and their bringing about culture shifts while ameliorating everyday problems. And so we try and show how advocates and lawyers can sort of fit in and make those, you know, and and make the organizing and the culture shift part of the legal work that they do. Because lawyers don't always think in those terms. They think of where can I file a lawsuit and how soon can I file it, and that lawsuit's going to be transformative. Well, few are. Um, and even Brown versus Board of Education, probably what we could all say the most monumental Supreme Court decision that many of us could think of has been undercut from the time it was issued by enforcement problems uh and by private action to thwart it. And schools are as segregated and unequal as they ever were. You can name another Supreme Court case that seems judicial outcome that seems transformative, same uh outcome. Um, so what does that mean for transformation? It means transformation is not gonna be uh is not necessarily gonna be embodied in those sort of formal legal equality pronouncements. It's gonna require more of a societal shift, it's gonna require more of a building of power to protect those gains from backlash and backsliding, which always seems to happen in the history of struggle and in the and in the everyday systems that continue on despite struggle.

SPEAKER_00 12:41

Often uh I I think and have said that uh laws can change, however, uh it takes longer, often for for the culture to shift and and the mindset. And so it seems like those need to go together. And and as you say, sometimes there's um there are certain cliches or or terminology that are often used. So, for example, reform and um and justice, and it takes longer for people to get beyond that and what that means. And it seems like we're we're at a time that that not only is there increased awareness, um, but also the importance and the push for for people to do something beyond the idea of cliche, beyond the idea of hashtags, uh, beyond the idea of theory. And it sounds like that's one of the things that you're advocating is uh as a more systemic action and a different way of thinking.

SPEAKER_01 13:33

It is. Uh courts oftentimes don't like to be in front of making justice. They kind of put their finger to the wind like a legislator would, and say, okay, what's public opinion doing? Um so you really didn't see transformative decisions in the LGBT arena, for example, until public polls were really showing that there was a shift in culture uh and in public attitudes. Um and and even if a court does get ahead of things, um that that is that's virtually certain that there's going to be some backlash or undercutting. And even in areas where there is uh where public uh you know where where the where the public seems to be building in their support for something, uh there is still uh the potential for backlash because the public doesn't always translate to legislative and judicial outcomes. In other words, um studies of power, and we include from from two notable authors, Gillins and Page, we include sort of their empirical study of who really does have power to deter, and and we define power by the ability to get what you want, if you want to put it in really simple terms, the ability to get the policy outcome you want, and it's not the general public in number. It is really uh, you know, it's it's it's it's elites uh and corporate structures and money structures that tend to be able to control outcomes despite the general public. Um so so really that's an important lesson that the courts may not act unless there's a sense of finger to the wind that the general public's behind it. But then at the same time, power can undo uh a lot of those gains, raw power, um unprincipled power, despite us being in a time where we think we're not, you know, we're not in the rule of kings anymore, and we have principled uh and accountable democracy. Uh the book really demonstrates that that uh that that is for the most part an illusion. And the sooner that people seeking change uh accept that, the better. And then what do you do about it? Some of the things that we've begun to suggest and talk about here.

SPEAKER_00 16:06

There is so much um power really in um in the concepts of motivation and uh understanding what does motivate people, what motivates a society, and uh the shift in that and how um and where that power comes from and and how how things can change. And as you say, you know, motivation is definitely an important part of that. And uh, you know, we we agree um about the importance of the law, uh however one thinks of it, you know, whether whether it's good or not good or or or whether the intentions behind that, but certainly there's a lot of power in the law, and and those who are involved in the law, whether as as lawyers or lawmakers or uh or or justices or the importance really of being aware of the law in general, citizens, you know, anybody who wants to affect change, anybody who wants to advocate uh just being aware, and I think the importance certainly of increasing our knowledge and our and of our awareness, and as you say, you know, some things that people can do. So being that the book is not out yet, what are some of your, let's say, practical uh tips or insights that you can uh that you can share?

SPEAKER_01 17:15

One of them is is a really important one, and we really start out with it, and that is uh a lot of law school classes, legal education, um, treat the students as exceptional, um, entering the honorable profession, an exceptional profession. Um, they're gonna have knowledge that's going to solve problems, it's gonna save the world. And we back it up and say, actually, what you need as a value is humility, uh, because a lot of the knowledge that you're gonna use uh to uh to find your place within ongoing through the centuries, even struggle against injustice is gonna come from the bottom, from the groups at the bottom of societal hierarchies and casts. Learning to value what they have to say about their lived material reality, about their experience, and learning to have humility about what you can do with that and the peace that you can provide, and not being that savior for them, but actually working in a collaborative manner with those groups to help them build power, um, to apply the things that you know as a legally trained professional, which is knowledge of the legal system, to see where legal remedies and and you know may fit in, um, and oftentimes to protect them in their organizing, whether it's a union, whether it's a protest, whether it's other groups, um, are important things that a lawyer can do, but at the same time, being humble about I'm not, as a lawyer, uh somebody who knows more than you and who knows what you need. Um, you're the one, you're the group who knows what you want, and all I can do is listen to you and try and help you get there. And at the same time, a value that the book tries to impart is that these struggles have outlived most other advocates in their life and probably will outlive you. As much as there's an urgency for immediate change, we know that change swings like a pendulum. Um, and it and and equal justice goes back to injustice, even if there seem to be dramatic breakthroughs, which Brown versus Board of Legal Education is simply one of those. That's that seemed to be a high point, a summit, but not but now is seen as sort of uh a disappointment in the actual changes. And so for a law student and anybody else involved in the struggle, they need to value self-preservation, they need to preserve themselves for the long haul of the struggle. And the book really tries to imagine something that's different than most other books and most other lawyering, which is sort of um atomized around a single legal case or a contract, and then you're done and you won and you celebrate. No, how do you really uh fit in to uh building relationships with affected groups and struggling for uh justice as you can with your knowledge of the law for the long haul? Those are important values, we think that really humility, self-preservation are values that aren't limited to lawyers and the legal profession. That's something that everybody could benefit from.

SPEAKER_00 20:40

This is true. Uh definitely the idea of learning and uh or being always lifelong learners and being willing to listen and have that humility, as you say. And I think that's something that uh uh you know is definitely coming up these days in terms of uh recognizing our own bias or recognizing our own prejudice, and um that we we can't necessarily just you know think, even though people may have good intentions, that it's about just doing uh what we think is best for others or helping others. It's uh definitely a collaborative process and um always recognize, like you say, the opportunity to um to learn. So, what what are what is something that you've learned over this time uh yourself personally, and um as as an author, as an academic, as a parent, as a as a multicultural citizen, what is your what is your hope for the future?

SPEAKER_01 21:32

Um I I once ended a book um on the friendship of of Robert Kennedy and Cesar Chavez with a quote when Cesar Chavez was on a show, maybe it was the Dick Cabot show, um, back in the 60s, when he was asked if he was an optimistic person, and he said, Yes, I have a lot of faith in people. Um, and hope and optimism have been something that have been a challenge at times when. You realize how daunting the centuries back embeddedness and really how natural a lot of injustices have become. And some people have said that it's only, you know, why is there so much racial unrest and unhappiness and organizing around that today? And one of the explanations that that really resonates, I think, with the with what we experience behind the book is that when you have the chance during a pandemic to simply shut off things and really self-reflect, you really start then to see what really is going on. The African American community said just that. You know, now you actually see those who aren't black for the first time what is really being faced. And so that sort of self-reflection is really important. But hope is something that we try and end the book on a hopeful note because how can you self-preserve yourself if you're not hopeful? It's hard to really dedicate yourself to a lifetime of advocate advocacy for vulnerable communities and populations if you don't have hope. Because if things are hopeless, then you just say it's a dystopian world and and and why fight? So really I think it is critical for self-preservation to you know to hang on to hope and to realize that you know, maybe like planting a seed, you're not going to eat the apple in your generation, but you've enabled a future generation to eat. Um and that's a satisfying life, uh a life lived well, and a life lived in struggle, which is more and more needed these days.

SPEAKER_00 23:52

You raised several good points, including that uh during this time of more containment and perhaps reflection and challenge, it's bringing more or some of the problems to light. And that increases awareness and provides an opportunity for people in our society to do something with a long-term approach and impact. Thank you, Professor Bender, for your work, for continuing to plant those seeds amongst students and advocates, and for sharing your insights and hope, well wishes as you continue and complete this project. We look forward to that coming out.

SPEAKER_01 24:41

It was it was very worthwhile to talk with you. Thanks so much, Natalie.

SPEAKER_00 24:45

Thank you. And thank you, listeners, for tuning in to the Conscious Council Mindful Managers program today. Information and recordings will be available at leadershipwell.com.