(Un)covering identity in civil rights and poverty law

This fascinating essay by Anthony Alfieri (2008) looks at dangers of ‘covering’ or stereotyping clients and why the education and training of future civil rights and poverty lawyers should be changed.

Read his essay: (Un)covering identity in civil rights and poverty law (233 KB)

Alfieri argues that many lawyers are guilty of ‘covering’ client differences. Quoting Professor Yoshino, to ‘cover’ is to ‘mute or repress a disfavoured or stigmatised identity trait’ – traits associated with difference or inferiority. Civil rights lawyers however should encourage individual and group identity – what is called self-elaboration and societal integration.

The essay looks at the costs of covering and the benefits of uncovering identity. Uncovering can be seen as a form of emancipation allowing individuals to express a public sense of self – it can connect marginised individuals and groups with legal and political strategies. There are some complex ethical dilemmas for lawyers and these are illustrated in three case studies – the Community Health Education Clinic who provide representation for gay, HIV-positive members of the Haitian community, a Lesbian, Gay and Bisexual Transgender Project and the Hispanic AIDS Forum in New York. The studies show how traditional notions of ‘marginalised’ groups obscure the existence of ‘hypermarginalised’ sub groups. These sub groups are often excluded and vulnerable – people such as ex-offenders, people coping with domestic abuse and drug users.

Alfieri calls for alternative education, training and curricular initiatives in clinical and legal education. He considers critical theory, which could be improved to help law students address difference-based client and community identities. Cross cultural training is needed to include a greater awareness of lawyer-client differences. Changes would include a challenge to neutrality and greater client participation in the lawyering process – moving beyond individual case-specific decision-making to issue-focused, neighbourhood-wide interests in legal advocacy.

Collective action and the forming of links between theory and practice should be a principal goal of clinical and nonclinical legal education.

Anthony Alfieri also wrote ‘Practicing Communities’ in 2007. In this, he describes community lawyering as

the representation of community-based organisations and groups for purposes of empowerment, capacity building, and political mobilisation.

The effective delivery of scarce legal goods to disadvantaged clients requires more than the provision of equal access, case-by-case representation, and zealous advocacy. Alfieri argues scarcity requires that effective legal change be measured not by the outcomes of individual cases, but rather by the progress of social change: specifically, by the degree to which individual clients are able to collaborate in local and national alliances to enlarge civil rights and to alleviate poverty. Collective action and the forming of links between theory and practice should be a principal goal of clinical and nonclinical legal education.

Published: 24 January 2017

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