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Critical Legal Studies

The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics

The limits of law in bringing about social change have long preoccupied legal thinkers. Recent schools of thought have built upon the critical understanding of these limits to produce a body of literature that privileges extralegal activism. These writings present alternatives to the path of legal reform, purporting to avoid the problems of cooptation and deradicalization that hindered earlier legal activism. Three extralegal focal points emerge in this literature: first, a move from professionalism to “lay lawyering”; second, a move from the legal arena to an autonomous sphere of action; and third, a departure from formal legal norms to softer, informal normativities. This Article demonstrates how these recent developments have drawn erroneous conclusions from critical understandings about the cooptive risks of legal strategies. In particular, proposed alternatives to legal reform strategies fail to recognize ways in which they are frequently subject to the same shortcomings they seek to avoid by opting out of the legal arena. Linking historical examples from the labor movement and the civil rights movement to contemporary social movement and public interest literature, the Article charts a nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding-out effects, institutional limitations, and legitimation. The Article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extralegal truism, which rejects legal reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist – namely, that the state is no longer able to ensure socially responsible practices in the twenty-first-century economy.