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Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN.

“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.1

Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering:  that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice.

Resistance Lawyering introduces to the historical stage a troupe of unknowns: abolitionist lawyers who used the stingy, slanted procedural rules of the Fugitive Slave Act, in combination with political savvy, to “wage a proxy war against the institution of slavery.” Walking the halls of Congress or bringing impact litigation to defeat slavery, approaches that attack the institution from the outside, was not their methodology. Instead, they were direct service lawyers, employing the summary processes of the Act in service of their clients’ freedom and also their abolitionist commitment. These lawyers’ movement politics manifested in a commitment to ensuring that their clients remained free by engaging with and using the system the lawyers opposed.

Celebrating success in these cases would have been in tension with the idea that had significant traction for abolitionists: that the Fugitive Slave Act imposed relentless unremitting injustice on people who had succeeded in fleeing slavery. The historical consensus has embraced that narrative, concluding that the overwhelming majority of people were returned to slavery.  Farbman’s groundbreaking archival research, however, reveals that this direct service, linked with an unwavering commitment to opposing enslavement, was far more effective than previously realized. The article reports that “of 210 cases invoking some form of process under the Law, eighty-one (38.5 percent) of the fugitives ended their cases as free people,” either exonerated, escaped, or having had their freedom purchased.

I like this article (lots) because, in addition to the revelations that archival research brings, and to the light the article sheds on one of the most harrowing decades in this nation’s history, it’s a good read. Farbman introduces us to characters who once drew breath here, at the most important crossroads of their lives–people like Lewis, captured by a slavecatcher, who obtained representation by two abolitionist lawyers: John Joliffe and future president Rutherford B. Hayes. While his lawyers engaged with the Fugitive Slave Act commissioner, Lewis seized an opportunity not contemplated by the Act:

“While the room (including the lawyers on both sides) was thus distracted, Lewis slipped his chair back a little bit to make space for himself. Noticing that nobody took note of him moving his chair, he did it again until he was behind the marshal and almost in among the crowd. Still no one noticed his movements, so he quietly stood up and stepped backwards. An ally in the crowd gave him a nudge of encouragement and someone put a hat on his head. Then, while [Commissioner] Carpenter droned on, Lewis quietly walked right out of the courtroom and mingled among the crowd of free black activists who had gathered to observe the hearing.”

Lewis made it to a safe house and ultimately to Canada and freedom.

The article dubs this approach of working within the system in furtherance of its destruction “resistance lawyering.” Abolitionist lawyers were able to both protect their individual clients and use those cases to further political opposition to slavery. Resistance lawyering worked when the lawyers won, either by overcoming the procedurally-skewed odds and convincing an often-sympathetic judge on the merits, or by delaying the process sufficiently so that the client took the opportunity to escape or abolitionist groups staged a rescue. Even when lawyer lost though, the legalized violence of the return of a client to enslavement, and the inflicted horrors of legalized retaliation, laid before the public, furthered the abolitionist crusade against the law. This tactic of delay and transparency frustrated the summary process in the Fugitive Slave Act that was intended to facilitate rapid return of people who had made it to the North, with as little publicity as possible.

So what does this have to do with immigration? (After all, I’m an immigration editor for JOTWELL.) The article singles out immigration law as one area in which resistance lawyering has taken root. The United States has over the past few decades constructed a grand apparatus of immigration enforcement that many advocates believe encroaches on once sacrosanct principles of immigration law, like asylum law and family unity. The development of these institutions—what Eisha Jain has called the enforcement pyramid—results in mass deportation and detention but also play out among legal, social, and racial lines when enforcement manifests as surveillance and social control of communities of color. Arrest, deportation and detention rates have soared as have rates of conviction for immigration crimes. Procedural shortcuts to expelling noncitizens using administrative forms of deportation now leapfrog court proceedings as easily as turnstile jumping.

The lesson that Resistance Lawyering brings to the present is that daily direct advocacy linked to movement ideology has been effective in resisting institutionalized injustice. The article points to immigration law as one of several areas where resistance lawyering has either taken root or could. Stephen Manning and I have written before about massive collaborative resistance to family detention. That resistance effort relies on the accumulation of daily direct service actions yoked to the larger goal of frustrating, opposing, and ending family detention itself. Ingrid Eagly, Steven Shafer, and Janna Whalley have documented the role that immigration courts (and advocates) have played in reducing deportation and detention by reversing half of the negative credible fear decisions of asylum officers and systematically lowering the bond amount set by detention officers.

For observers of legal transformation, Resistance Lawyering holds another lesson. As commentators, scholars, and analysts, we often train our binoculars on impact litigation making waves in the Supreme Court, track the freefall of comprehensive immigration reform, or obsess over high-level agency policy and pronouncements. Resistance Lawyering teaches us that when we overlook the integration of direct service with political goalposts, we may be missing the game.

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  1. Spoiler alert: contrary to the laws of physics, the book does not end there.
Cite as: Juliet Stumpf, Resistance is Not As Useless As We Believed, JOTWELL (June 12, 2020) (reviewing Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN),