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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Words that Inflict Force
-- By AbbePetuchowski - 20 Feb 2021
Prologue
“Do you think your students and their families just viewed you as part of the system?” Hearing this question during a summer internship interview forced me to pause and think for a moment. As a teacher, I often felt constrained by overbearing district initiatives, seemingly pointless school policies, and the realities of available resources. As a new teacher, I worried about the repercussions of disobeying the system’s rules, but also struggled with the moral and practical implications of subjecting my students to policies that I could see provided no benefit and feared would cause harm. With time, I learned where the system had openings for disobedience, yet this tension between my role as an employee within the system and my dissatisfaction with the system itself remained constant.
An agent within a system
Lawyers are also individual actors within an unjust system. However, lawyers are in the unique position to experience personal freedom, while also holding power to impact whether the legal system will unilaterally exert force over their clients. The reality is that a lawyer’s use of language directly impacts how and when public force will be applied to individuals who often have no say in the situation.
The system itself
Holmes describes our society as one in which “the command of the public force is entrusted to the judges in certain cases, and the whole power of the State will be put forth, if necessary, to carry out their judgments and decrees.” In response to the judges’ decrees, a host of actors, from prosecutors to policemen, carry out the prescribed public force, and consequently, individuals are subjected to this force. Inherently, this is not a system concerned with its impact on the individual, nor a system easily amenable by those on which it inflicts force. In applying their own set of ethics to cases, judges often prioritize the protection of the system itself, rather than the human impact of the holding. As Jansen remarked in Lawyerland, this is a system, where Judge Lemuel Shaw, an abolitionist, authored an opinion returning a fugitive slave to enslavement, under jurisdictional grounds.
The lawyer: an agent of force
Robert Cover, with reference to a lawyer’s interpretation, remarked, “Interpretation always takes place in the shadow of coercion." (as quoted in “Repairing The World Through Law: A Reflection On Robert Cover's Social Activism,” Stephen Wizner). Even a lawyer who uses her power of interpretation to protect a client from violence is nonetheless employing a system of force to ensure that protection. Although a lawyer does not directly inflict violence on others, she nonetheless uses language to achieve an outcome that directly results in the application of public force. All cases result in a judgment, which inseparably stipulates that a party’s failure to comply will result in the powers of the state unilaterally enforcing that verdict. Here, there is an inherent juxtaposition of the lawyer’s personal freedom to determine a career that meets her needs with her role within a system that is sustained by the use of unilateral force. The next question is, what can a lawyer do with the understanding that her words not only affect verdicts, but result in the use of coercion?
Distinguishing oneself from the system
The status quo of the criminal legal system results in the application of force in a manner that disregards individual impact. However, as Cohen describes, a lawyer can use “patter” to effect favorable judicial opinions by distracting from adverse precedents and facts, while also introducing human values by “sleight-of-hand.” Cohen does not define “patter,” but just as a magician must determine the form of patter best suited to her own style, lawyers too must determine how best to distract the court from the inclusion of human impact and moral concerns. Perhaps this entails uttering transcendental nonsense to give “justification” for a new interpretation, or maybe it involves spectacle, such as Clarence Darrow’s famous exchange with William Jennings Bryan during the Scopes Monkey Trial. Regardless of the specifics, here, the lawyer is using her creativity, legal knowledge, and institutional power to disrupt the system's status quo of operation.
Transferring power within the system
During my second year teaching, I learned about P.S. 305, a local organization using community organizing strategies to build a movement of students, parents, teachers, and community members demanding for better schools in their neighborhoods. In an educational system driven by top-down decisions from the school district, P.S. 305 aimed to transfer power by informing and organizing those most affected by the district’s decisions. As one aspect of their approach, P.S. 305 sought out teachers, like myself, to equip us with the necessary tools to become stronger advocates so that we could then reach out to others and repeat the same cycle. Similarly, under the community lawyering model, lawyers shift power by providing tactical support for community-based initiatives, seeking to pass on information, rather than acting as gatekeepers of knowledge. (Purvi & Chuck: Community Lawyering). Here, the lawyer uses her role within the system to work outside the system’s status quo, while also aiming to transfer her institutional power.
Epilogue
Thinking back on my experience in the classroom, it is easier for me to now see the role I played within the broader system. However, in the day-to-day of teaching long days, I lived in the present. Although planning for future lessons involved reflection of past classes, I rarely allowed for absence. I didn’t fully step back and look at the system performing in front of me to better visualize where I was situated within it. As a lawyer, I imagine I will be faced with similar time constraints and mental and physical exhaustion. Yet, this time, I aim to remember the necessity of absence, so that I approach each client interaction and legal proceeding with an awareness of my word’s implicit connection to coercion and a vision for how I can work to transfer that power.
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