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Law Practice,
Civil Rights

Sep. 18, 2020

An interview with: Angela P. Harris of UC Davis School of Law

Mallika speaks to a critical race theorist and feminist legal scholar about challenging homogeneity of the profession and academy; the genius and struggle of women scholars; emotional intelligence for strong lawyering; the trap of "diversity" without power-sharing; and the potential of Juneteenth 2020.

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Mallika Kaur

Email: mallikakaur@law.berkeley.edu

Mallika is a lawyer and writer who focuses on human rights, with a specialization in gender and minority issues. She teaches skills and experiential courses at UC Berkeley School of Law, including "Negotiating Trauma, Emotions and the Practice of Law."

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Angela P. Harris

Professor Emeritus, UC Davis School of Law

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Angela P. Harris is professor emerita and distinguished professor of law, Boochever and Bird endowed chair for the Study and Teaching of Freedom and Equality, at the University of California, Davis School of Law. Her books include "Presumed Incompetent: The Intersections of Race and Class for Women in Academia" (with Carmen Gonzalez, Gabriella Gutierrez y Muhs, and Yolanda Flores Niemann).
NEGOTIATING TRAUMA & THE LAW

Mallika Kaur: Scholars and practitioners alike still return with regularity to your 1990 article "Race and Essentialism in Feminist Legal Theory." Among other things, you argued there against the fallacy "that a unitary, 'essential' women's experience can be isolated independently of race, class, sexual orientation, and other realities of experience." When I think of several trainings that exist for women-identifying lawyers, and law students, about work-life balance, about professional satisfaction, about career advice, I am struck often by the essentialism involved. In your work in the legal field over the past many decades, do you think there is now more room for the diverse and disparate experiences of women lawyers, and lawyers in general?

Angela Harris: Yes, I think there is. One of the most gratifying things about having been part of the critical race theory movement is seeing Kim Crenshaw's term "intersectionality" enter public discourse. Anti-essentialism is really a corollary to that idea: If you're being intersectional in your thinking, you're also being anti-essentialist. I'm so happy that idea has begun to take hold. I've recently written about "justice movements" -- environmental justice, reproductive justice, land justice, food justice, water justice -- etc., and how I'm struck by their foundational commitment to anti-essentialism as a tool of organizing.

That said, there's lots of room to grow, especially in the legal profession! Law remains such a hierarchical and exclusionary world, and such worlds are extremely homogenous in all kinds of ways. We have an enormous retention problem in law firms, as women, queer people, and people of color find themselves in hostile environments and realize they will never make it to partnership. In environments like that, transformation is stuck in first gear. There is very little diversity, and very little incentive to make any meaningful inroads on transformation.

Mallika Kaur: You've written about how critical legal theory must be dedicated to promoting change and about the importance of a "commitment to caring." What about the concern that academics and lawyers who care too much may lose their objectivity, their focus, their professionalism, may become ineffective empaths?

AH: I love this question! When I was teaching Mindfulness and the Law, I often used that argument as a prompt for the students' final paper. We've all learned from TV and the movies that lawyers are hard-nosed, hard-charging gladiators who never give an inch and will go to the mat for their clients. There's a beautiful righteousness in that image. There's also a lot of gender in that message -- growing up, we also learn that men are warriors and women are caretakers, and given that dichotomy, a caring lawyer just might be kind of a wuss.

What I find, every time I teach the class, is that although this worry about losing objectivity, focus, and professionalism by caring too much is always on the students' minds from day one, by the end of the course they realize that it's really a false worry. They write eloquently about how caring connections to clients, to colleagues, even to lawyers on the other side of the bargaining table actually make you a better lawyer and the lawyering life a more sustainable one. The research confirms this as well. The lawyers that other lawyers look up to -- the "super lawyers" -- tend to have very high emotional intelligence. And that includes being able to show caring and compassion ... which sometimes means tough love!

MK: For legal academics who work towards institutional change, challenging entrenched laws or even entrenched cultures, for example in law schools, what in your experience are the difficulties? Does it help or hurt that a lawyer shares a past trauma related to the law or legal culture they wish to challenge?

AH: It's interesting that academia, including but not limited to legal academia, has some of the same challenges as the legal profession, even though the average law school is more diverse than your average law firm. In doing research for [book "Presumed Incompetent," and afterwards in traveling and speaking about the book all around the country, we found over and over that women in higher education, especially women of color, were frustrated, tapped out, and suffering from incredibly high levels of chronic stress. This is directly related to how isolating the job can be. We have a very individualistic culture of teaching and scholarship, in which you're being judged as an individual from day one and the ideal you're taught to pursue is the lonely genius whose original thoughts transform the world -- and the charismatic, confident teacher all the students love. Interestingly, that's also a very gendered image. Women scholars are seldom thought to be geniuses, and our teaching is often perceived, including by students, as a form of mothering.

No individual, no matter how brilliant and bold, can singlehandedly change an institutional culture. So when individual women share their experiences of trauma within a toxic institution, the result is usually compounded trauma. On the other hand, the cycle can only stop when people begin to work collectively for change, and that does begin with sharing individual experiences of trauma -- not at first with leadership, but with others who have had the same experience. As in the 1970s women's movement, consciousness-raising is the beginning of collective movement. Telling your story to others who have experienced something similar pushes back against the individualist culture of academia, and creates the conditions for collective struggle. My fellow editors and I experience that in miniature whenever we present on our book: sometimes there's standing room only, and the energy is incredibly high. People are in such pain, and it is so relieving not to be alone with it.

MK: Could you tell us about what sort of work, given your personal background and identities, has proven most difficult for you?

AH: I found myself the most unhappy in my professional career at the beginning, when I was working in a large corporate law firm. Not only were there very few Black women partners or even senior associates; the culture, despite it being a "progressive" firm, was all about working all the time and never showing weakness. And the clients were corporate clients whose interests I didn't really care about! I only found myself there because I had drunk the law school Kool-Aid: all my fellow students were trying to get jobs at places like this, so I did too. Later I learned that this is called following "extrinsic," rather than "intrinsic," values. It's a recipe for unhappiness.

Academia was a much better fit for me, and I got a lot happier when I made the jump. But, as I suggested above, there was plenty of trauma waiting for me there, too! As the first Black woman ever to be hired onto the tenure track in my law school, I felt the constant weight of the expectation that I be perfect in every way -- otherwise, they might not ever hire another! I was in a classic position: tapped for every committee so that it would look "diverse," but not given any real power, because I would be the only Black person and sometimes the only woman in the group; constantly in demand from students who were hungry for mentorship and education by somebody who looked like them and shared their values; and judging myself probably even more ruthlessly than others were judging me--did I answer that question in class perfectly? Is my faculty workshop talk perfect? Are my ideas original and "brilliant" enough?

Unlearning this training has taken my whole career, and I still struggle with perfectionism and not feeling good enough or smart enough. It's one reason I retired young. Another is the lack of institutional culture change. In 2020, there is still only one Black woman on the tenure track faculty at the law school where I started teaching over thirty years ago! I've seen senior women become bitter and brittle, fighting the same old fights year after year. I decided I didn't need to be one of them.

MK: Your students often report you have retained a humility and gentleness that is generally not rewarded in the profession. You are tremendously accessible to mentees for someone so busy! How does one not become jaded? How do you sustain yourself?

AH: In retirement, I have the privilege to have stopped doing things because I should do them, or because somebody wants me to do them. I'm now trying to do only things that bring me joy or satisfaction. Throughout my career, one of my very favorite things was encouraging more junior people, whether students or junior colleagues. Everyone wants to be seen and their talents and gifts recognized. It always shocks me when brilliant, wonderful students or younger colleagues aren't given the encouragement or the recognition they deserve, and I love helping people figure out what their instrument is and how to play it, so to speak. That I have the privilege to help lift other people up is a great joy, and it has always sustained me.

Another of my very favorite things is innovation. I'm an introvert so working on my scholarship by myself makes me happy, but so does working with others to imagine and build new initiatives. I've had the privilege in my career to be creative with others -- writing casebooks, founding centers and clinics, and most recently founding a new peer-reviewed journal are all things nobody can do by themselves. It's so much fun ... that sustains me too!

MK: You have for very long worked on issues that are now almost constantly the subject of news, conferences, classes. Do you worry about the possibly short half-life of this attention to race and gender issues? Might the individual and collective traumas retriggered by this moment become overwhelming? How do those working towards equity in 2020, prevent losing steam?

AH: My collaborator Aysha Pamukcu recently introduced me to the term "wet cement moment." Juneteenth of 2020 was a wet cement moment: Suddenly it wasn't just Black people in the streets protesting police violence against Black people, suddenly "defund the police" was a thing you could talk about in the mainstream media. The conservative opinion writer for the New York Times, David Brooks, was telling people to read critical race theory! It was crazy.

But, as the wet cement metaphor suggests, things can harden again very quickly. There typically is a very short time in which a large enough group of people is mobilized enough to make really transformative change happen. And with white supremacy -- a structure on which America was founded -- transformative change can't happen in a short time. It's got to be a long, painful haul. So yes, I do worry that the cement will soon harden and we as a society will have pulled down a couple of statues, tweeted some woke hashtags, and hired a few more diversity consultants, and we'll declare racism to be over.

The thing is, in between those wet cement moments there are small groups of people constantly working to prepare for them. This is what happened with Black Lives Matter between Ferguson and Juneteenth, 2020: People were organizing behind the scenes, studying together, acting together. And, what's even more heartening to me is that the young people doing this work are incredibly trauma-aware. They are talking about self-care, breathing together on Zoom calls, inviting healers, doing yoga and meditating. And they're savvy about the effects of intergenerational trauma. Especially, I think, through the influence of queer people and women, that warrior-dude mentality is transforming into something much more human. That's what gives me the most hope, to be honest: a new ideal of struggle that's about achieving justice with love. 

#359624

Ben Armistead

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