Pedagogy of Prefiguration

abstract. As our social problems deepen and movements rise to meet those challenges, lawyers must expand their repertoire to support transformative visions. Social-movement organizations are not only developing policy platforms, but also experimenting with legal advocacy and institutional development that meet human needs and strive to resist liberal cooption. Movements are engaged in prefigurative thinking, outside of the terms and constraints of our present late-neoliberal moment of global climate emergency and democratic crisis. Building on the work of Davina Cooper on everyday utopias, the Marxist and anarchist theorists of prefigurative politics, and Stefano Harney and Fred Moten on the undercommons, this Essay asks how we may teach ourselves—lawyers and law students—to work with social-movement organizations on projects that prefigure utopian social arrangements. Is utopian imagination antithetical to training for legal practice? How can we help extend utopian imagination to the core social problems on which we work in clinical legal education? Along with several cautionary notes, this Essay suggests three methods with which to experiment: social analysis, radical imagination, and dialogical relationship with collaborators.

Introduction

In the last decade—in the teeth of the breakdown of the neoliberal political order, the rise of fascist and white supremacist movements, and accelerating climate change—progressive movement formations in the United States have generated radical critiques of social, political, and legal structures. Movements have intervened across fields of contention, including policing and criminal incarceration, migrant detention and deportation, and global warming and resource extraction. Examples include the policy platform of the Movement for Black Lives,1 the Free Our Future manifesto authored by Mijente,2 the Green New Deal advocated for by the Sunrise Movement,3 and the Red Deal by The Red Nation.4 These movement platforms start by opposing policing and criminalization, surveillance and militarization, fossil-fuel extraction and dependency. Then, they pivot to defining new horizons for public safety, migration, and protection of land and water. Movement activists collectively acquire critical understandings of interlocking structures of power in their areas of focus (as well as across areas of focus), and they think toward drastically redistributing power and reconstructing institutions.

I speculate in this Essay on pedagogies that may enable law students to engage in utopian thinking alongside social-movement collaborators.5 In the law clinic that I direct, the University of California, Irvine (UCI) Workers, Law, and Organizing Clinic (WLO), I work with law students in collaboration with immigrant- and worker-rights movement organizations. WLO is one of a growing number of law-school clinics that practice law in collaboration with community and movement organizations.6 In WLO and preceding immigrant-rights clinics that I directed at UCI and City University of New York (CUNY) School of Law, we have represented migrants in deportation proceedings as well as low-wage workers in cases to recover unpaid wages and combat employer retaliation. We have also worked on policy and know-your-rights campaigns, all with the shared aim of building the bases of our community and movement partners. Our core goal is to deploy law and legal advocacy to help client organizations challenge skewed distributions of economic, social, and political power in their fields of work, whether defined geographically or by issue or sector.7

The first part of this Essay briefly focuses on one dimension of social crisis—racialized labor extraction in the low-wage sector—to contextualize the work of WLO. As our social problems deepen and movements rise to meet those challenges, lawyers must expand their repertoire to support transformative visions. Social-movement organizations are not only developing policy platforms, but also experimenting with legal advocacy and institutional development that meet human needs and strive to resist liberal cooption. As discussed further in Part II, movements are engaged in prefigurative thinking,8 outside of the terms and constraints of our present moment of global climate emergency and democratic crisis. I ask in this Essay how we may teach ourselves—lawyers and law students—to work with social-movement organizations on projects that prefigure utopian social arrangements. Is utopian imagination antithetical to training for legal practice? How can we help extend utopian imagination to the core social problem on which we work in WLO, the challenge of endemic low-wage labor exploitation in the United States? In Part III, this Essay begins to offer provisional answers to these difficult questions using two representative projects currently on our docket: (1) a state-court case against an employer that fired workers during the pandemic due to the workers’ health- and safety-focused organizing activities, and (2) a nascent collaboration with an organization developing worker cooperatives in Southern California. The projects prompt and illustrate the need for three interdependent pedagogical methods: shared social analysis, radical imagination, and dialogical engagement with client groups.

These methods are not restricted to law-school clinics. They may be used in a range of pedagogical settings, as well as amongst lawyers in legal-practice organizations and units. Ultimately, the depth of the problems that we face necessitate a redistribution of power and reimagination of institutional arrangements. I argue that with new knowledge bases, liberatory thoughtways, and new ways of learning and knowing from clients, lawyers can facilitate and advance the utopian thinking of social movements. This Essay notes caution on several fronts in Part IV and then concludes.

I. race, labor, extraction

The problem area in which we work in WLO is that of exploited and expropriated labor.9 Worker organizing has been constrained by law.10 At the same time, the state has expanded regimes of criminalization, including policing, detention and incarceration, and expulsion and banishment.11 While these enforcement regimes are ostensibly color-blind, economic elites and the state have used race and racism to justify, implement, and expand these immiserating dynamics.12 Against this background of worker alienation and carcerality, there are at least three forces that enable the extraction of labor from low-wage workers in the United States:

Illegality. The state’s withholding of authorization to work is a legal construction; it contributes to maintaining a hierarchical system that enmeshes white supremacy and capitalism.13 This legal construction takes material form in the federal and state budgets for immigration enforcement, the rapid expansions since 9/11 of agencies such as the U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Patrol, and a hybrid migrant-detention system composed of federal prisons, county jails, and private facilities.14 This machinery propels the life/death power of the sovereign.15 The withholding of legal status reinforces racialization and stereotypes about race and criminality and facilitates racialized law enforcement.16 At the same time, illegality keeps immigrant labor vulnerable to incarceration and banishment.

Austerity. In many parts of the United States, particularly regions deeply impacted by deindustrialization, the only respite from the hollowing out of the social-welfare state in the twenty-first century is funding provided for guard labor:17 police, prisons, and detention centers.18 Policy entrepreneurs with a focus on carceral approaches to social problems have found common cause with public and private interests that rely on policing and incarceration for revenue.19 For example, CoreCivic and the GEO Group lobbied Congress to expand the number of detention beds that it required ICE to fill on any given day.20 In the public sphere, local sheriffs who control county jail facilities are amongst the most ardent supporters of immigration-enforcement crackdowns.21 Indeed, the Central Valley of California, where WLO is litigating the COVID retaliation case described in Part III, is a region deeply impacted by austerity and carcerality. GEO Group owns and operates an immigrant detention center in proximity to the plant that employed our clients.

Domination. The criminal-immigration legal system22 subdues workers who may otherwise exercise voice and autonomy in the workplace.23 As portrayed in the work of sociologist Shannon Gleeson, employers screen for precarity—in part, borne of legal liminality—when they hire, and they possess the tools to suppress workers who complain or organize.24 The lack of worker complaints or demands, in turn, keeps severely underresourced labor-protection authorities out of low-wage workplaces.25 This immiserates migrant low-wage workers, who are bedeviled by grueling schedules and unsafe work conditions, multiple jobs, and constant economic pressure to make ends meet. These conditions have only intensified during the extended COVID-19 pandemic in the United States as low-wage workers have been compelled to work by classification as “essential workers.”26

WLO works in partnership with migrant-worker centers and progressive union locals to combat these conditions and build worker power in the low-wage sector. Unions in the United States have been diminished in size and power by a nearly seventy-five-year war on labor, waged by capital and supported by politicians across the political spectrum.27 This war eliminated more progressive threads within the union movement and elevated conservative union leaders who for many years refused to organize migrant workers and sought their deportation and exclusion.28 Mainstream unions supported the withholding of work authorization for undocumented migrants in the 1986 Immigration Reform and Control Act.29 Migrant-worker centers rose to fill the organizing gap and pioneered creative, confrontational organizing campaigns in the low-wage sector.30 They organized through national-origin affinity, as well as by industry. Some worker centers have grown in the last two decades from local organizations into national networks, such as Restaurant Opportunities Centers United,31 National Domestic Workers Alliance,32 and National Day Laborer Organizing Network.33 WLO supports both national and more fledgling local migrant-worker centers, as well as those that now collaborate extensively with unions.34

II. prefiguration in the undercommons

So how might prefigurative practice enrich these partnerships? This moment is filled with peril for all but those with extreme wealth. Labor remains relatively weak, and left movements persist in the face of strong countercurrents. It is a moment that requires radical experimentation with new, utopian institutional and social forms. Those utopian forms are relatively small in scale or narrow in application due to the power of capital and the disciplining force of the state. But they implement new institutional arrangements and help us imagine more just and equal social relations on a wider scale.35 Prefigurative projects fight the despair of ostensibly unchangeable institutional and social conditions and provide a means by which we may engage in collective utopian thinking, unfettered by the ongoing and depredating operations of capital facilitated by law.36

Prefiguration is a particular type of utopian thinking that gestures toward new organizational forms and, as I explore further below, may especially invite a particular form of generative legalism. In order to flesh this out, it is helpful to understand with slightly more precision what we mean when we talk about prefiguration. Writing from a Marxist standpoint, Carl Boggs argues that the prefigurative tradition

expresses three basic concerns:

1. fear of reproducing hierarchical authority relations under a new ideological rationale;
2. criticism of political parties and trade unions because their centralized forms reproduce the old power relations in a way that undermines revolutionary struggles; and
3. commitment to democratization through local, collective structures that anticipate the future liberated society.37

Benjamin Franks builds on this third point with an anarchist lens and argues that prefigurative practices “contest existing forms of domination and . . . foreshadow its transformation.”38 He goes on to say that “the values, activities, and identities that [prefigurative practices] presently foreshadow are only a synecdoche (a small fragment of the whole), which is necessarily incomplete and provisional. Further, practices are always evolving and can transform with new values arising that represent a radical transcendence of the existing activity.”39 Chris Dixon situates organizing as prefigurative because it entails “bringing people together in ways that build their collective power—with a horizontal orientation. This orientation aims to foster people’s capacities for critically analyzing the world, taking initiative with competence and confidence, engaging in strategic action, and democratically running their own affairs.”40

Building on Marxist and anarchist threads in the literature and focused on experimentation on the left, Amy Cohen and Bronwen Morgan argue for the co-constitutive nature of prefigurative practice and legality.41 Four characteristics distinguish “prefigurative legality”: (1) the innate pluralism and indeterminacy of law provide a sense of possibility and encourage the use of “legal techniques, meanings, and practices;”42 (2) in unpredictable and alchemical ways, people acting collectively draw on “legal logics and thoughtways” to constitute themselves;43 (3) people persist in using legal power “notwithstanding their dissatisfaction, and sometimes deep loss of faith, in the capacity of traditional state-based modes of law reform;”44 and (4) people do not allow uncertainty about outcomes to inhibit experimentation with legal change.45 This Essay builds on Cohen and Morgan’s essential synthetic work by asking how lawyers, as agents of legality, may themselves engage in and facilitate prefigurative practice.

These concepts—social critique, local and democratic experimentation, visionary organizing, and generative legality—take us beyond a universe anchored in current social arrangements, one circumscribed by state repression, legislative compromise, and U.S. constitutionalism. In his reading of the George Floyd protests of 2020, Veryl Pow describes “acts of prefiguration to create a sustainable space, free from police violence or state intervention, where land is commonly accessed and resources are managed and distributed directly among grassroots participants.”46 Drawing on the experiments of the Occupy movement, Michael Haber describes “prefigurative tools” developed by anti-authoritarian activists, including means by which to structure and defend autonomous communities and to ensure that power within groups is shared horizontally.47 Prefigurative thinking provides a framework for projects that social-movement organizations may use to defy the inevitable retrenchment that follows from significant challenges to the status quo. This way of thinking sharpens our capacity to see nascent prefigurative practice in the world as it is.

Unfortunately, it is not preordained that educational institutions teach students how to engage in prefigurative thinking. The writer Ursula K. Le Guin has written extensively about the hostility in U.S. schooling to imagination, to thinking beyond the here and now:

Imagination is not a means of making money. It has no place in the vocabulary of profit-making. It is not a weapon, though all weapons originate from it, and their use, or non-use, depends on it, as with all tools and their use. The imagination is an essential tool of the mind, a fundamental way of thinking, an indispensable means of becoming and remaining human . . . .48

And yet imagination remains under siege in U.S. educational systems, which are under pressure to prepare students to obediently serve capital and develop historical understanding that reinforces current distributions of wealth and power.49

Law schools are especially hostile to progressive prefigurative thinking. In Duncan Kennedy’s words, they reproduce hierarchy and conformity.50 Law—both its omnipresence as a force of social control and near-total absence as a constraint on capital—is a central arena of movement contestation. Law is exceptionally fraught terrain for radical political imagination due to its use as an instrument of social control,51 as well as its use to discipline and domesticate disruptive social movements.52 Legalism in left movement spaces has been the subject of sustained critique,53 including of its tendency to permeate movement strategy, which social theorist Dylan Riley calls the “juridification of the imagination.”54

Stefano Harney and Fred Moten are deeply critical of the university as compromised and carceral, but they also suggest that spaces remain in which academic workers may engage in critical work:

The university needs what [the subversive intellectual] bears but cannot bear what she brings. And on top of all that she disappears. She disappears into the underground, the downlow lowdown maroon community of the university, into the undercommons of enlightenment, where the work gets done, where the work gets subverted, where the revolution is still black, still strong.55

While there are no signs on campus pointing toward the undercommons, we can begin to see “where the work gets done” at a university: amongst the cleaners, kitchen staff, and gardeners; the adjunct faculty who teach large classes for little money; and the teaching assistants who nurture intellect for an uncertain future in the academy. Perhaps we can also glimpse “where the work gets subverted”: small, unfunded projects that matter to families and communities, projects of the head and the heart run by dissident graduate students and marginalized faculty, union campaigns of staff workers and teachers, unrelenting critique in journals and on social media, and courageous acts of direct action targeting racist iconography.56 And there may well be spaces on campus in which “the revolution is still black, still strong”: spaces of solidarity and mutual aid.57 The question I ask in this Essay is whether law-school clinics may act as an undercommons and bring students, faculty, and movement actors together to enact prefigurative projects, against all the pressures mounted against such work in the university.

Law clinics have the capacity to advance prefigurative thinking because of their position within, but at the edges of, both legal education and legal practice. Excellent legal education teaches about the plasticity of law: the meaning of texts remains contestable, and the application of law to fact situations requires adaptation. Good lawyers devise interpretations of legal texts that advance the interests of their clients and causes, bearing in mind principles and values both internal and external to the texts themselves.58 Moreover, transactional and legislative lawyers draft new legal texts that structure institutions and relationships.59 Law clinics shaped and driven by collaborations with social-movement and community organizations extend and contextualize classroom lessons about the plasticity and possibility of law through student work on a small sample of cases and projects. Clinical education exists beside both traditional classes focused on legal doctrine, interpretation, and adaptation and seminars in which students take up normative questions untethered from client interests. This proximity and juxtaposition make law clinics potentially well-suited to serve as laboratories of prefigurative legalism.60

Further, the relationship of law clinics to legal practice reinforces the potential for prefigurative practice. Clinics are at the edges of legal practice, in most cases because of low case volume, but also due to their funding model. Public-interest legal organizations that represent poor and marginalized people operate under great pressures of case volume and—in the case of federally funded civil legal services—regulatory constraints. By contrast, excellent clinics are funded on an ongoing basis from law-school budgets, as opposed to being dependent on short-term university fundraising or philanthropic grants. Both the duty of loyalty to clients and the principle of academic freedom enable clinical teachers to construct dockets with a rare degree of independence,61 shielded from the market and state pressure that most progressive civil-society organizations face to reinforce (or not challenge) status-quo distributions of wealth and power.62 Law clinics are institutions of practice but also exist outside of practice.

Policy platforms, movement demands, and nonreformist reforms63find expression in prefigurative projects. Law clinics may engage in experimentation that sets a foundation for ongoing radical visioning and sustains social movements through periods of retrenchment and repression. In the undercommons, visionary movement organizations and movement lawyers may crack open the conflicts that offer a view to new worlds, and they may repoliticize spaces that have been bled of agonistic life by neoliberalism.64 In this way, clinics may be sites of prefigurative collaboration but also prefigurative themselves. They may sketch the outlines of a different kind of learning community and legal practice collective, of institutions that are accountable to movements and communities rather than to private wealth and state discipline.

III. methods

How can lawyers and law students build a pedagogy that supports and defends prefigurative practice in the heat of the crises that we face together? Can this collaborative work be subversive or even revolutionary? To work through this question, I offer two examples from WLO’s docket. We create potentiality in the way that we construct these projects with our collaborators.

In June 2020, a group of workers gathered outside of the packing plant in which they work in the Central Valley of California. They started a picket with signs, as their supervisors watched from inside of the chain link fence at the edges of the work site. Some workers who had tested positive for COVID joined the line from inside of their cars. Led by a forty-two-year-old mother of two, a packing-plant veteran, the workers called on their employer to adopt protective measures in the wake of the rash of COVID infections that ravaged the workforce. In May, coworkers had started to fall sick, bringing the illness to the children and elders in their homes. The company had initially not provided or required the use of PPE in the plant; later, it charged workers eight dollars per mask. By July, 150 workers had been infected in a workforce of approximately 400, and one worker had died.

The conditions at the plant were part of a larger story of essential workers in the low-wage sector subjected to sickness and premature death.65 COVID tore through communities of Latinx immigrant workers in the Central Valley, much as it did in meat-packing plants in Tennessee and Minnesota.66These were essential workers, as defined by the company under federal and state guidelines, ensuring that the company could continue to earn revenue from sales of food during the pandemic. They were unable “to control their risk of exposure” to COVID.67

With help from the United Farm Workers (UFW),68 the worker-leaders spoke to reporters and generated a spate of stories on the conditions of work in the plant during the first wave of the pandemic. They led a second walkout the following week after a poor response by the company. The company then began an extended campaign of discipline and terminations aimed at the worker-leaders. One worker was prevented from using the computer that workers used to tally products on the plant floor and eventually discharged. Another was fired immediately. Others, who were hired through temporary staffing agencies, were told that their contracts had been terminated.

UFW was not planning to organize the plant, but it sought to honor the solidarity demonstrated by the workers. WLO came to represent the fired worker-leaders with UFW through the union’s primary outside counsel, Martínez Aguilasocho Law, Inc.69 Working with UFW lawyers, the WLO clinical team researched potential claims, interviewed workers, and began informal discovery. We drafted a complaint for use in state court.70 In undertaking these tasks, we continued to guide the work by asking a set of questions: In the context of this type of traditional litigation case, how might a clinic advance a more critical understanding of the conditions to which “essential workers” were subject during the pandemic? How do we accentuate and elevate the worker solidarity that provoked the terminations? How might we depart from standard representation in litigation to think prefiguratively with our clients and collaborators? Toward what future might this work gesture?

A second project is the clinic’s aspiration to help grow worker cooperatives in Orange County, California, in close collaboration with the organization Cooperación Santa Ana (CoopSA).71 According to Carmen Huertas-Noble, Missy Risser-Lovings, and Christopher Adams, “[W]orker cooperatives subordinate capital to labor—profits are distributed based on the workers’ labor, not their capital investment.”72 Optimally, workers have a controlling voice in governance through cooperative agreements, benefit from profit-sharing and equitable pay structures, and keep profits in their communities.73 Moreover, as manifestations of community solidarity, cooperatives are more likely than other corporate entities to preserve and enrich the local environment.74 However, cooperatives make up a miniscule portion of U.S. economic production for a variety of reasons, most notably the small size of most cooperative businesses, the lack of significant patient capital,75 and the challenge of building a sustainable market for goods made or services rendered by relatively inexperienced participants.76 CoopSA seeks to build an ecosystem of worker cooperatives, particularly in sectors in which there is greater economic opportunity in the region. Our work with CoopSA raises questions: Can social enterprises such as worker cooperatives replace or supplement wage labor, particularly in the absence of capital? How can worker cooperatives resist market imperatives and protect collective well-being while generating revenue? The established labor movement is based on a model of industrial production that is significantly diminished in the United States. Our work on cooperatives asks about the ways in which we may organize our economic lives to ensure community autonomy, sustainability, resilience, and prosperity, particularly in the face of climate change.

So how might we develop a set of pedagogical approaches that honors and nurtures prefigurative work and that might reimagine the university and legal practice? Legal educators already unremarkably engage in procapitalist prefigurative work, helping students realize a vision of their lifelong service to capital. How do we end this functionality in the clinic and turn our resources toward pro-social, radical visions of a future life buoyed by solidarity and love? I suggest three pedagogical methods: deriving a common social analysis, exercising radical imagination, and engaging dialogically with client groups.

A. Social Analysis

First, I suggest that a shared social analysis or “sociological imagination”77 amongst collaborators is essential. We must examine the root causes of the racialized labor extraction of migrant labor in capitalism and ask: how do we understand global historical structures of inequality and the ways in which they manifest in our current moment? knowledge base and analysis could elevate our utopian, prefigurative aspirations and abate the instrumentalization and domestication of legal practice and the university. By understanding background distributions and structures of power, we can alter the work that we do with movements and challenge conventional approaches to public-interest representation. Oscillating between ideas and practice, between history and the present, fuels pedagogical growth, and it disrupts complacency and acquiescence to an established economic and social order.78

My students, our movement partners, and I need to engage in social analysis to have clarity about the structural conditions that we face across our projects. Our study of the Black radical tradition and its animating critique of racial capitalism—as set forth by W.E.B. Du Bois,79 Neville Alexander,80 Cedric Robinson,81 Ruth Wilson Gilmore,82 and Robin D.G. Kelley83—can prompt new understanding and cause us to think structurally against the individuation of hegemonic neoliberal discourse. In Gilmore’s words, “capitalism requires inequality and racism enshrines it.”84 Racial categorization and gendering,85 amongst other ways in which we divide ourselves, facilitate the relative exploitation of vulnerable subjects at the bottom of social hierarchies,86 as is occurring with migrant workers globally.87 Our broader systemic understanding is not fixed and uniform across clinic participants and collaborators. We seek a deeper descriptive understanding of the contexts in which racialized labor extraction emerges, so as to develop a more sophisticated and effective praxis. Workers, organizers, students, and teachers engage in social analysis as we build our own knowledge bases—gradually, collectively, and iteratively—and we act on the basis of theories of change that evolve with experience.88

Our responses to those structural conditions will fall short time after time if we as teachers and students do not engage in social analysis of the problems on which we are working. For example, there are strong internal and external incentives for clinics to work on small individual cases to recover unpaid wages. Our organizational partners are often flooded with individual claims and struggle to transform individual claims-making into organizing for larger, collective goals. These unpaid-wage cases can provide short-term pedagogical benefits, as they may be used to teach foundational lawyering skills such as fact investigation, client interviewing, and trial advocacy. And they offer a sense of accomplishment, in cases in which we manage to get small but significant sums of money into the pockets of vulnerable workers and their families. However, in working on these cases, we accept the definition of the problem we address to be wage theft, rather than racialized labor extraction. e may draft a report on wage theft and work with client groups to criminalize it, thereby expanding the carceral system and policing in neighborhoods in which low-wage workers live and work, with far-reaching consequences.89 We may target companies that are especially bad actors. But we will not be working on the larger problem of racialized labor extraction. The autocracy of “private government” in the workplace—in Elizabeth Anderson’s words90—will remain intact. We will not critically evaluate the broader context and seek opportunities to attack the interlocking regimes of public and private racialized violence to which low-wage workers are subject.

The pull to act on the basis of fixed knowledge is gravitational. But by engaging in ongoing social analysis, undergirded by critical historical knowledge and collaboration with social movement organizations, lawyers and law students can expand their understanding beyond dominant paradigms. Ongoing social analysis, undergirded by critical historical knowledge, causes teachers and students to make leaps of understanding while collaborating with social movement organizations. Even with shared social analysis, we may not successfully identify and challenge the world-historical conditions that determine how workers fare in the low-wage economy. But without it, we do not stand a chance of overcoming the flood of individual unpaid wage claims and, with movement partners, successfully pivoting toward worker solidarity.91 If we practice solely in a wage theft frame, we are likely to channel the energy of our movement partners toward reforms that entrench employer autocracy and exploitation.92

Apart from docket selection, clinic participants’ shared social analysis deeply informs how we make framing and narrative choices in cases. Recall that in the UFW case that I describe above,93 five workers lost their jobs after leading protests against their employer and talking to the press in the midst of the pandemic. COVID disproportionately impacted Latinx workers in the Central Valley, as workers were compelled to work in agricultural and food processing without adequate protective measures in place.94 Families could have been spared the loss of loved ones had employers and the state valued the lives of workers. It was essential that our draft complaint capture the disproportionate impact of the pandemic on Latinx workers and surface the avoidable choices that led to sickness and death. The clinic team included references in the complaint to press accounts and public health studies to substantiate this focus.95 When we turned to the adverse employment actions, we sought to accentuate the workers’ courage in leading protests as they were closely observed by their bosses.96 The employers continued to view the workers as expendable, just as they had before offering protections from COVID. They assumed that workers would have limited access to state agencies and the press. They were focused on preventing workers from expressing solidarity in the workplace and on penalizing those who had the temerity to defy their power. We could have drafted the complaint without an emphasis on the workers’ racially and economically skewed vulnerability to COVID, and we could have merely focused on the employer’s violation of retaliation laws.97 But it was important that it be known—to the judge, the press, the public, opposing counsel, the employers, and the workers themselves—that this was a case about the suppression and elimination of Latinx worker solidarity in the midst of a global public health crisis. This was domination at work. We aspired to convey the strength and bravery of those who were terminated, who through their actions cared about their community of workers and families and undertook direct action to defend it.

The draft complaint in this case is enriched by the broader theoretical understanding and sociological imagination that the frame of racialized labor extraction offers. It is also a pedagogical tool within the clinic, as the structures and conditions about which we read and consider in abstract terms are substantiated by specific facts in direct exchanges with our clients, the experts on the ground.98 In the course of drafting the complaint, we have the opportunity to try different frames, to see what the evidence supports and which narrative coheres. It may be that some students resist the underlying theory of racial capitalism, and that is fine. My larger pedagogical goal is to demonstrate the unremarkable nature of specific horrific facts, to tie those facts to the conditions facing many others, and to elevate the agency and solidarity of vulnerable workers. It is both the sociological imagination in this particular context and the relationship of theory to facts that students take with them from their clinical practice. However, to advance prefigurative thinking, we need critical social analysis married to radical imagination, to which this Essay now turns.

B. Radical Imagination

Clinics must develop the capacity of teachers and students to imagine new trajectories with our partners and clients. Legal educators generally presume that clinics undertake projects for social impact with the limited pedagogical goal of preparing students for postgraduate practice. We tend to suppress more transformative pedagogical aims. I myself have found that it is challenging, as a neoliberal subject and as a lawyer, to maintain my imaginative capacity in the face of economic and social pressure. Our work with CoopSA is nascent. We have done intakes with a few groups of cooperative collaborators and are just beginning to think alongside CoopSA about an ecosystem of cooperatives in the region. bring a degree of skepticism as to the sustainability of cooperative business models. We wonder: Can a collective of service professionals succeed in Santa Ana? Can a café or food establishment survive in a highly competitive environment? It is challenging to suspend judgment and to appreciate the broader vision of organizers who are thinking in terms of a regional ecosystem of interrelated businesses.

In the context of litigation, organizers ask us to structure backwards-looking litigation, such as in the UFW case, to honor workers who exercised solidarity and lost their jobs. Organizers help lawyers and clients make the leaps we need to make for these projects to be prefigurative. And yet the prevailing legal ethical rules prescribe particular roles for lawyers and clients and bar third parties from that relationship.99 The rules structure relationships in which clients have limited say as to the conduct of their cases and are prohibited from explicitly bringing organizers into their decision-making.100 But it is organizers who often help workers envision possible futures, above and beyond the ones in which they are mired. As lawyers, we must imagine beyond the constraining rules of our profession and the material and ideational austerity so deeply inscribed in our culture and ourselves. In a context in which our clients alone work or starve (or, in many cases, work or go to jail101), the voices and visions of organizers enable prefigurative thinking in our collaborations.

Davina Cooper describes prefigurative experiments in which collectives and subdivisions of the state act as if the rules and structures granting legitimacy to those actions already exist.102 In the work that I describe above, we accompany groups of low-wage workers and community residents who prefigure class consciousness, collectivity, and creative generativity.103 Our clients at the packing plant exercised solidarity and demonstrated what is possible, even under conditions of stress and threat. The workers saw that their well-being was incidental to their employers’ aim of maximum production. They worked to convince others to join them outside of the plant. They implicitly threatened ongoing production. They acted collectively to defend everyone in that plant. In doing so, they prefigured an economy centered on the needs of low-wage workers. They neither formed a union nor went on strike, but they did reimagine “their conditions of possibility”104: they acted as if the rules and structures legitimizing solidarity, worker control of production, and community care already existed. The worker-leaders were then terminated for these acts.105

The litigation documents both the prefigurative nature of the protest activities and the costs imposed on the protagonists.106 In our effort to tell the story of our clients’ courage against outsized obstacles, we engage with them and the UFW organizers and lawyers in prefigurative thinking. How we construct that story makes meaning, beyond the alleged violations of the law.107 We seek to extend the workers’ contestation of the conditions of possibility, stopping the employers from using their power to terminate at-will employees and contracts to reconsolidate power relations in the low-wage sector. Similarly, in the case of our cooperative clients, we are asked to imagine a city of worker-owned businesses, of workers and residents united in their concern for community well-being. We are asked to provide the legal basis for new relations of trust and mutual aid between groups of producers and creators. This is prefigurative thinking as captured in networks and agreements.108

How do we prepare ourselves to engage in these leaps, particularly after a first-year law curriculum that mostly narrows our imaginaries? Most clinics engage in early-semester training that focuses on core areas of substantive law, along with the legal skills that students need to launch into practice immediately. These skills include navigating lawyer-client relationships, interviewing and counseling clients, and conducting basic legal research. As with movement lawyering more generally, it is essential that we teach the canonical lawyering skills with more creativity. We can ask: how might we develop our capacity to exercise radical imagination in relationships with clients? For example, instruction on building lawyer-client relationships should embrace pluralism, indeterminacy, and generativity. There are many ways to build an effective relationship with clients. Gerald López’s “rebellious lawyering”109 and Lucie White’s “third dimensional lawyering”110 speak to that sense of possibility: the idea of an open-source relationship from which many strategies and outcomes are possible. Team collaboration is another skill that many clinics often feature early in the semester, sometimes drawing on business-school literature as teaching material. Instead, we might consider using adrienne maree brown’s Emergent Strategy: Shaping Change, Changing Worlds, particularly her focus on “collaborative ideation.”111 In brown’s telling, “Black Lives Matter” is a product of the collaborative ideation of social movement participants from around the world.112 It is an example of Afrofuturism, of imagining a circumstance that has not yet arrived: “[W]e bend the world to assert and embody that Black lives matter.”113 By centering Black thought and movement voices over standard materials on collaboration, we begin to develop radical imagination.114 While in most cases these will not be the spaces of Black Study to which Harney and Moten refer when they describe the undercommons, imaginative clinics may yet become spaces in which “the work gets subverted.”115 brown says, “Imagination is one of the spoils of colonization, which in many ways is claiming who gets to imagine the future for a given geography.”116 Teaching toward radical imagination is an effort to develop lawyers’ capacity to dream with our collaborators and to work against the mobilization of law in the extension of settler-colonialism.117 We embark on this work for the pedagogical development of all participants, including law students, worker-clients, organizers, teachers, and allies. We aim to grow our collective capacity to exercise radical imagination, to recognize the co-constitutive relationship between material reality and ideology, and to stave off the threat of instrumentalization, commodification, and domestication. We must do this work together, across our role categories, in dialogue with clients and organizational partners—dialogue to which this Essay turns.

C. Dialogical Relationship

Legal representation fosters a dialogical relationship between law and social movement, as captured and personified in the exchanges between workers, lawyers, and organizers. In the past, I have largely relied on the imaginative capacity of the organizers with whom we work.118 Drawing on lessons from the literature on lawyer domination in public-interest cases, lawyers have been taught to defer to clients, organizers, and community organizations in cases and campaigns.119 While lawyers have great skill that can be used to advance community campaigns, the argument goes, radical vision is not part of the typical lawyer’s skillset.120 Instead, social movement organizations look to organizers and members to develop campaign goals and the far horizons toward which they aim.

Lawyers in an earlier era of public-interest practice have had close and sometimes contentious relationships with movement collaborators.121 However, as Scott L. Cummings argues, scholarly accounts of the role of law and lawyers in historical social movements (e.g., school desegregation, abortion rights) “have coalesced around a critical vision . . . that centers on foundational problems of efficacy and accountability.”122 Critics have imagined these problems as interwoven: lawyers are less than fully accountable to their social-movement clients and, therefore, end up advancing elite, court-centered legal strategies that undermine movements rather than preserving movements’ efficacy.123 These accounts have traveled into public interest practice and reshaped the field.124 However, a “new canon” of law and social movements narratives (e.g., immigrant rights, anti-sweatshop activism, Black Lives Matter) have cast a new light on relationships between lawyers and social movements.125 Lawyers can engage in “integrated advocacy,” in which they work in close coordination with organizers and constituents using a range of legal advocacy tactics in and out of court, nested in a broader political campaigns.126 This orientation leads lawyers out of the trap of deference or domination.127 Both deference and domination inhibit collaborative prefigurative thinking. As Cohen and Morgan argue convincingly, legality can be generative and core to prefigurative practice.128 Integrated advocacy permits lawyers to engage in that generative collaboration with movement actors and, therefore, to access the full range of possibility available to social movements.129

However, the norms and practices of the legal profession and the collapse of unionism may obstruct truly dialogical relationships between lawyers and worker-clients. Lawyering’s core purpose is traditionally projected narrowly as helping clients navigate systems of legal process. There are provisions in the code of professional conduct that allow lawyers to engage beyond the terms of a case or deal, but these are understood to be exceptional rather than normative.130 Some corporate lawyers, particularly in-house attorneys, are paid to engage in longer-term dialogical counseling relationships with their clients.131 However, in worker representation, with the decline of unions as intermediaries, lawyers are less likely to have the capacity or means to engage in long-term dialogical relationships with their clients.132 Organizers—the intermediaries who would initiate, foster, and facilitate such relationships—are blocked from having a formalized role in the relationship.133 And class-action practice does not usually foster prefigurative thinking in dialogic relationships between lawyers and clients.134 The law (and the rules of professional conduct) structures and immunizes the collectivization of and coordination by the owners of capital, and it formally delegates authority to entity managers.135 By contrast, nonunionized workers are generally alienated and isolated, including in their relationships with lawyers. It is as if corporate lawyers could only have relationships with individual shareholders, but not the entity intermediaries who may speak for the corporation. Workers’ involvement in union and nonunion movement activities and a broader reading of the rules of professional conduct136 may enable deeper prefigurative collaboration with lawyers.

Our representation of the packing-plant workers demanded a dialogical relationship between the clinic, the workers, and our UFW collaborators. Essential workers forced by law to work during the pandemic turned to a trusted friend in the UFW, who in turn connected them to lawyers. The UFW lawyers filed and lost an initial National Labor Relations Board claim on behalf of the fired workers. They then brought in the clinic to investigate potential retaliation claims under state law. Law students engaged in extended exchanges with the worker-leaders, facilitated and sometimes interpreted by paralegals at the UFW law firm. The case was built by the worker-leaders and an assemblage of UFW staffers, legal workers, and clinic students. Recall the second and third features of Cohen and Morgan’s prefigurative legality: people constitute themselves collectively in part by drawing on “legal logics and thoughtways” and they persist in doing so in spite of their deep skepticism and loss of faith in liberal legality.137 Workers, lawyers, and organizers engage in co-constitution and keep each other going in the face of overwhelming odds, losses, cooptation, and retrenchment. They bring their experience in each case and campaign, including the dialogical nature of their relationships with allies new and old, to the subsequent contexts to which their lives take them.

Prefigurative practice requires the pluralist, indeterminate, and generative client relationships described above, rather than the cramped conventional vision captured in the code of professional conduct and often applied in the representation of subordinated clients. Lawyers need to find ways to work dialogically with organizations and collectives in client relationships, so that they may serve as intermediaries and repositories of collective imagination and project new horizons for the work.

IV. resisting corruption

We must radically alter our social arrangements if we are to abate economic inequality, re-democratize the state, and adapt to environmental change collectively. But radical posturing in the classroom, even with the use of creative pedagogies, does not necessarily yield radical outcomes. We can use the language of prefiguration but still remain mired in a neoliberal order with antidemocratic elements gathering force.138 Even accounting for the inherently small scale of prefigurative experimentation, what if these approaches are corrupted139 before they bear any fruit? Three cautions prompt this question: first, whether deep-seated ideological hostility may compromise the radical politics underlying prefigurative thinking; second, whether lawyers, as agents of the state, can participate in efforts to disrupt authority and move toward just social arrangements and institutions; and third, whether academics might appropriate and dilute radical ideation from movement spaces. This Part examines and responds to each, and it argues for lawyers to take up prefigurative thinking with these cautions in mind.

First, the automatic and nearly unconscious effort to distance oneself from radical ideologies in the United States may detach prefiguration from its Marxist and anarchist foundations, domesticating and deradicalizing the experimentation that we attempt in law clinics. In law, the mainstream of the discipline has viewed collectivity and solidarity with suspicion, instead elevating measures of individualized utility—or law and economics—as the core currency in lawmaking and legal interpretation.140 Neoliberal austerity has placed questions of social welfare outside of the realm of the contestable, outside of politics.141 So, can we fathom truly radical prefigurative projects in the midst of our current order?142 We not have the imaginative capacity required to envision and realize a social vision untethered from our current dystopian reality. Indeed, one thread of Marxist critique holds that prefiguration is impossible in a feudal or capitalist order and that a movement pursuing revolutionary change may need to deploy means out of accord with the radical pro-social arrangements that the movement seeks to establish.143 Anarchist principles are, if possible, made even more invisible in our current social context.144

Despite this skepticism about the potential of prefigurative practices to yield radical outcomes, there are signs of life, of radical futures. Abolitionist ideation and solidarity exist today in all corners. People are generating ideas and institutional arrangements that fundamentally counter neoliberal austerity, policing, surveillance, racialization, criminalization, militarization, and human and natural exploitation. People are queering institutions, disrupting hierarchies, and investing in mutual-aid projects.145 In tangible terms, the vitality of the land and the water persists in spite of every human effort to despoil and exploit. Prefiguration occurs today in the context of our current institutional arrangements. Almost by definition, prefigurative struggle toward a more just, safe, and autonomy-enhancing existence occurs in conditions likely to be hostile to radical ideologies and social arrangements. In a moment of conjuncture,146 it is incumbent on lawyers to join the struggle with workers and organizers to originate radical arrangements that build with our solidarities and other utopian resources. And perhaps we might ultimately co-develop institutions and ideological precepts that transcend our current reality.

A second caution: as agents of state discipline, lawyers may seem suspect for this prefigurative role. However, it is precisely because law is used to impose social control and disrupt progressive social movements that we must act against its bounds. In the clinic, we see the limits of our liberal political order in every unpaid-wage case that we litigate before agencies and courts. We document conditions of racialized labor extraction in each of these cases. Generations of public-interest lawyers have been taught to build Sisyphean careers in courts that manage unyielding neoliberal immiseration rather than dispense justice.147

By contrast, prefigurative practice permits lawyers and law students to use our powers of observation and documentation to work toward social arrangements that reconfigure the terrain on which we operate in everyday legalism. We teach our students to operate within the bounds of the law as it is, but also to conceive of law as it might be.148 Prefigurative practice opens vistas to lawyers and law students that are otherwise kept hidden from us. And it provides a means by which to join organizers and other movement activists in imagining alternative legal social orders.149 Because we are all—lawyers, organizers, workers—subject to capitalist discipline, it is incumbent on all to engage in prefigurative thinking and to prompt each other to persist. Ruth Wilson Gilmore says that “subjectivity is historical becoming.”150 This Essay is a call for lawyers’ historical becoming through prefigurative practice.

Finally, as Harney and Moten argue, the university is a mechanism of community exploitation that reinforces our current unjust order.151 Might we as academics be extracting generative ideation from the workers, organizers, and movements with which we work? Clinical professors risk putting movement ideation in the service of our roles providing career skills training and our tenure and promotion cases. But as Harney and Moten also note, academics at the margins of the university may choose to deploy their efforts and the institutional remnants that come into their possession toward radical experimentation.152 We create spaces in the undercommons in which we may study together, along with workers and organizers, to challenge social arrangements and originate new ones. Perhaps prefigurative practice also suggests a reconceptualization of law student as legal worker, which surfaces their potential exploitation and challenges traditional academic hierarchy.153 The law clinic must recreate itself to serve as an undercommons, as a small-scale experiment in what the university and legal practice may become. Prefigurative pedagogies in the undercommons incorporate vigilance against the reproduction of hierarchy. And on a societal level, through prefigurative practice, law clinics might advocate for, document, and support movements as they fight deradicalization, cooption, and retrenchment.

These responses are partial. But in the conjunctural moment in which we exist, lawyers and law students—and the law schools and legal practice organizations in which they work—have little choice but to attempt to generate new approaches and new arrangements. The structure and limits of the law clinic offer a defined space in which to experiment with movement collaborators. It is essential that we use the experimental spaces that we have.

Conclusion

The core purpose of this Essay is to speculate on how lawyers, law schools, and legal practice organizations may participate in the unfolding, imaginative endeavor of left social movements. Lawyers have the capacity to engage in prefigurative thinking with movement partners against significant obstacles, including anesthetizing educational methods and blinkered legalism. The law school clinic may serve as an undercommons: a site of critical social analysis, radical imagination, and expansive dialogical relationships with movement collaborators. In such a law clinic, we can prefigure the world we seek to create. Prefigurative thinking requires that we formulate an expansive, critical understanding of the social problems on which we work in law school clinics. It demands that we work against the neoliberal order in which we are immersed to build solidarities with clients, social movement organizations, and one another. These are audacious and perhaps utopian aspirations. But the current period of evolving disaster demands nothing less of us. How we reconstruct our institutions will determine whether we have a collective future.

Clinical Professor of Law and Associate Dean for Equity Initiatives, University of California, Irvine School of Law. I am deeply grateful to work with successive groups of dedicated and inspiring clinic students, clients, and organizers. Thanks to Amna Akbar, Swethaa Ballakrishnen, Shruti Gohil, Annie Lai, Jocelyn Simonson, Ethan Smith, and participants in the POLIMA conference on political imagination in Turku, Finland, colleagues at a session of the UC Irvine Law Faculty Workshop, and the editors of the Yale Law Journal for their critical engagement. Finally, I am grateful to the Mesa Refuge for the time and space offered by the Howard and Phyllis Friedman Fellowship for an Inclusive Economy.