Rascuache Lawyering: a Chicana/O Vision of Rebellious Law Practice, Pedagogy, and Clients

\\jciprod01\productn\N\NYC\23-1\NYC105.txt unknown Seq: 1 24-OCT-16 10:55 RASCUACHE LAWYERING: A CHICANA/O VISION OF REBELLIOUS LAW PRACTICE, PEDAGOGY, AND CLIENTS ALFREDO MIRANDE´ * This essay uses storytelling and the narrative method of Critical Race Theory to address current issues in progressive law practice. Specifically, it seeks to expand on Gerald Lopez’s ´ vision of Rebel- lious Lawyering by applying the Mexican concept of rascuache or rascuachismo, a bottom up have not aesthetic and sensibility. By fo- cusing on rascuachismo, I seek to shift attention from lawyers to clients and their impact on pedagogy and practice. Two narrative case studies, based on the experiences of rascuache clients, are used to demonstrate the unique ways that rascuache clients respond to subordination. While rascuachismo represents a distinct mexicano aesthetic and sensibility that is humorous, satirical, and playful, I propose that it is also a form of resistance to cultural control and economic and political oppression. The movidas rascuaches or hustles, described in this article and the rich folkloric stories surrounding their successful implementation, rather than being a sign of weaknesses, inferiority, or subordination, are weapons of the weak. They are resourceful and creative strategies that immigrants, minorities, and members of subal- tern classes use to survive and to thrive in an otherwise hostile environment. I. INTRODUCTION When Rebellious Lawyering1 first appeared in 1992, I was in my second year at Stanford Law School and enrolled in Jerry Lopez’s ´ “Teaching Self-Help and Lay Lawyering” class. We read his book and a number of other works that centered on the rebellious vision of progressive law practice. Jerry’s classes and the Lawyering for Social Change (LSC) curriculum were like a breath of fresh air and a wel- come reprieve from the traditional law school curriculum and the reg- nant, hierarchical view of law and lawyering. During that second year, I was also introduced to Critical Legal Studies (CLS) and Critical Race Theory (CRT) in a History of Mod- * Alfredo Mirande, ´ J.D., Ph.D. taught at the Texas Tech University School of Law and is currently Distinguished Professor of Sociology and Ethnic Studies at the University of California, Riverside. Email: [email protected]. 1 GERALD P. LOPEZ´ , REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRES- SIVE LAW PRACTICE (1992). 217 \\jciprod01\productn\N\NYC\23-1\NYC105.txt unknown Seq: 2 24-OCT-16 10:55 218 CLINICAL LAW REVIEW [Vol. 23:217 ern Legal Thought class taught by Thomas C. Grey, a prominent legal theorist at Stanford, and an expert on legal pragmatism. It was here that I first encountered the writings of people like the late Derrick Bell2 and Richard Delgado and Critical Feminist scholars like Mari Matsuda, Kimberle ´ Crenshaw, Patricia Williams, and Angela Harris.3 Intrigued by these progressive critiques of law, and surprised that these works were largely ignored in the LSC curriculum, in the second semester I enrolled in a directed studies course with Professor Grey where I wrote a paper on CRT and Delgado. The paper was subse- quently published in a special issue of the Harvard Latino Law Re- view4 devoted to Delgado’s Rodrigo Chronicles. One of my goals in this essay is to link Lopez’s ´ vision of rebellious law practice with existing CRT and LatCrit scholarship. Despite the significance and impact of Rebellious Lawyering on clinicians and practitioners, Lopez’s ´ vision of law and progressive law practice has largely failed to be incorporated into CRT and LatCrit scholarship. These theoretical paradigms, in turn, have done little to advance our understanding of law practice or the rebellious vision of lawyering for social change. Lopez’s ´ rebellious lawyering principles and pedagogy have also not been incorporated into undergraduate and graduate university curricula outside of law schools. Over the past twenty-five years or so, I have sought to implement the rebellious vision of law and law practice in my pedagogy, scholarship, and law practice. For example, in my undergraduate teaching I have developed an innovative undergraduate class, “Law and Subor- dination,” where students are trained to be lay lawyers, to teach self- help, and to work in community placements as advocates for, with, and on behalf of people at the bottom of the social hierarchy. In other words, to work with people who normally do not have access to law or to lawyers. I have also sought to implement rebellious lawyering principles in my graduate seminars I have, for example, developed a graduate seminar in Sociology, Law, Race, Class, Gender, and Cul- 2 DERRICK A. BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR SOCIAL JUSTICE (1987) 3 Id.; Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401 (1987); Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 PENN L. REV. 561 (1984); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581. Law Review (1990); Mari Matsuda, Looking at the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Charles R. Lawrence, III, Race and Affirmative Ac- tion: A Critical Race Perspective, in THE POLITICS OF LAW : A PROGRESSIVE CRITIQUE 312 (David Kairys ed., 1998) [hereinafter THE POLITICS OF LAW ]. 4 Alfredo Mirande, ´ “Revenge of the Nerds,” or Postmodern “Colored Folk”?—A Cri- tique of Critical Race Theory and the Chronicles of Rodrigo, 4 HARV. LAT. L. REV. 153 (2000). \\jciprod01\productn\N\NYC\23-1\NYC105.txt unknown Seq: 3 24-OCT-16 10:55 Fall 2016] Rascuache Lawyering 219 ture, which seeks to incorporate law and subordination and Critical Race Theory principles into Sociology. Finally, I have sought to implement rebellious lawyering principles in my small, largely pro bono law practice. This essay continues the tradition and method introduced by Bell, Delgado, Williams and other members of the legal storytelling movement by using narrative as a technique to address current issues in CRT and LatCrit and in rebellious law practice. My intent here is to extend and expand on the ideas contained in Rebellious Lawyering to CRT and LatCrit, and to examine the interrelationship and synergy between critical theories of race in law and social science conceptions of rebellious practice. Specifically, by sharing two case studies from my rascuache law practice, my goal is to apply Lopez’s ´ vision of rebellious lawyering to the Chicana/o experience through the concept of rascuache5 or “rascuachismo.” I seek to expand on the twin concepts of rascuache and rascuachismo and to apply a rascuache sensibility not only to Gerald Lopez’s ´ vision of rebellious practice but also to larger political forces, political mobilization, and social movements for social change in the society at large. While my previous work, like Rebellious Lawyering, focused on the rascuache lawyer and lawyering, here I turn my attention to rascuache clients. I address how a fuller understanding of rascuache clients can advance our vision of rebellious law practice. In a classic commentary and critique of CLS, a movement led largely by progressive White men teaching at elite law schools,6 Bob Gordon commented on the divide among people attending CLS con- ferences between theorists and practitioners.7 While theorists gener- ally eschew and devalue practice, practitioners hunger for theory. Gordon adds that despite differences among members of the CLS movement, an amazing amount of convergence characterizes their work. The prototypical Crit was a progressive who first started think- ing about law as a student in the late 1960s, or progressive lawyers who tried to use the system against the system. Harold Dalton has observed that people of Color8 hold the po- 5 The word is also spelled rasquache with a “q” instead of a “c.” I prefer the latter usage because I believe it is perhaps more rascuache. 6 Roberto Mangabeira Unger, The Critical Legal Studies Movement, in CRITICAL LE- GAL STUDIES 323 (Allan C. Hutchinson ed., 1989); Peter Gabel & Jay M. Feinman, Con- tract Law as Ideology, in THE POLITICS OF LAW , supra note 3, at 497; Robert W. Gordon, Some Critical Theories of Law and Their Critics,” in THE POLITICS OF LAW , supra note 3, at 641. 7 Gordon, supra note 6. 8 I have opted to capitalize “Color” in people of Color as well as “Black” and “White” in the text because the terms are used to refer to groups of people and not to color per se. \\jciprod01\productn\N\NYC\23-1\NYC105.txt unknown Seq: 4 24-OCT-16 10:55 220 CLINICAL LAW REVIEW [Vol. 23:217 tential for bridging the schism between theorists and practitioners because they are “practitioners” almost by definition in the sense that the consequences of racism have direct, practical, inescapable, and im- mediate relevance for them.9 In other words, even if people of Color are not all technically “practitioners,” we cannot simply “walk away” from race issues the way White progressives can. Following Dalton’s lead, I propose that the terms rascuache and rascuachismo can be used to link Chicana/o practitioners to the experiences of our subal- tern clients, specifically to working class Mexicano/Chicano clients. Having introduced the topic, Part II develops the Mexican concept of rascuachismo, a working class aesthetic and sensibility. In Part III, I extend the discussion of rascuachismo from a working class aesthetic and sensibility to an active and creative form of resistance to oppression and subordination both in the United States and transna- tionally. Part IV discusses how Rebellious Lawyering and Critical Race Theory have impacted my pedagogy.

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