From a sociolegal perspective, Joe Berlinger’s documentary film Crude (2009) is fascinating. It serves as a potent yet complex on-the-ground application of multiple canonical theories on the relationship between law and social change. I’ve used it in my Introduction to Law & Society course for many years, finding it very effective in the classroom. And teaching it never gets stale: well over a decade since the case began, it continues to take twists and turns, each of which make it even more relevant as a sociolegal case study.
The film focuses on a portion (2006-2007) of a massive class action lawsuit set in the Ecuadorian Amazon. The plaintiffs, a group of 30,000 Indigenous Ecuadorians and five Amazonian Indigenous groups, claimed that Chevron (formerly Texaco) poisoned their ancestral land. Claimants say the American oil company did so while mining the Lego Agrio oil field from the 1970s to 1990s, causing catastrophic environmental harm including the pollution of rivers and streams on which the Ecuadorians rely for survival. The evidence in the film is damning: we’re shown children with nasty skin conditions, interviews with grieving mothers whose young children died of cancer, dead chickens, and ponds of carelessly discarded oil waste.
Chevron denied any wrongdoing. They pinned the blame on Petroecuador, a state-owned oil company that has since taken over mining operations in the area. Adding to the film’s allure as a legal thriller, the trial literally takes place in the jungle. The parties roam around inspecting various contaminated sites. One review deems Crude “a ground-level view of one of the most extraordinary legal dramas of our time.” Students find the film gripping and are always eager to hear what has happened since.
As a bonus for law-school-bound students interested in cause lawyering, viewers get to know the attorneys representing the Ecuadorians quite well. Particularly Pablo Fajardo, a young Ecuadorian man who at the time was just beginning his legal practice; and Steve Donziger, a Manhattan-based human rights attorney who has spent the bulk of his legal career on this case. Fajardo is depicted as reserved and at times naïve, but as we get to know him we see clearly that he’s smart, charismatic, and determined. He holds his own when arguing with Chevron’s intimidating trial attorney – a very animated tall, slender man who wears an explorer’s cap. Donziger on the other hand could come off as pushy and controlling, but it’s convincing that that he has the best interest of the Ecuadorian people in mind.
Before viewing the film, I ask my students to read materials to familiarize themselves with three different perspectives on the relationship between law and social change: Gerald Rosenberg’s (1990) Hollow Hope, Michael McCann’s (1994) concept of legal mobilization, and Marc Galanter’s (1974) classic “Why the Haves Come Out Ahead.” The film provides plenty of evidence to support each perspective. But I think it challenges each in important ways, too.
Rosenberg’s perspective, which points to the limits of litigation for achieving social change, particularly when there’s a disconnect between societal values and legal rulings, comes out looking very convincing, especially when we consider what transpired after the film’s release. In 2011, an Ecuadorian court ordered Chevron to pay $18.2 billion in compensation. The Ecuador Supreme Court upheld the verdict, reducing the award to $9.5 billion. But Chevron has refused to pay. They called the verdict “illegitimate and inapplicable.” Even though it was Chevron who initially advocated moving the case form the U.S. to Ecuador, they went on to resume their legal defense in the U.S. where an appeals court deemed the verdict unenforceable. One can argue that after all these years of seemingly endless legal battles, 30,000 Ecuadorians have yet to achieve anything resembling justice.
Yet there’s also plenty of evidence to support Michael McCann’s (1994) legal mobilization model, which, in conversation with Rosenberg, says, yes, these limits are real, but we also need to acknowledge how litigation draws attention to issues and mobilizes people who come to see their hardship as a violation of their rights. To that end, the film does an excellent job depicting the case as both a legal and public relations struggle. Donziger is skilled in the latter: he pitches and lands a profile of Fajardo in Vanity Fair, which, in turn, gets the attention of Trudie Styler and her rock star husband, Sting. In the film Donziger flies Styler to Ecuador where she tours the polluted landscape and speaks with impacted people as the cameras roll. He does the same with Ecuador’s president Rafael Correa, who at the time was riding momentum from a recent electoral victory. Later we’re taken to Giant’s Stadium in New Jersey, where Sting’s band The Police play in front of a massive crowd for the benefit of the Ecuadorians’ cause. The litigation may have been futile to a degree, but it clearly did something. As I always remind my students, we wouldn’t have even been covering the case had it not been for the lawsuit and the attention it’s attracted.
Finally, we take a look at Marc Galanter’s classic article “Why the Haves Come Out Ahead.” Galanter argues that the ‘haves’ are ‘repeat players,’ intimately familiar with all aspects of the legal process. This is in sharp contrast to what he calls “one-timers,” who enter trials without much, if any, experience. Clearly, if there’s a case worthy of comparison to the biblical struggle between David versus Goliath, this is it. My students tend to see application of Galanter’s ideas somewhat obvious in comparison to the other two, although I encourage them to think about a wide array of advantages that Chevron brings to the case (e.g., their upper-hand public relations).
Then there’s the recent developments – namely Chevron’s all out legal and public relations assault on Donziger. The oil company sued their adversary under the Racketeer Influenced and Corrupt Organizations (RICO) Act, using testimony from an Ecuadorian judge who claimed – and later recanted – that Donziger corrupted the case by bribing a judge. When Donziger refused U.S. District Judge Lewis Kaplan’s request to turn over his phones and computers on account of attorney-client privilege, the judge charged him with contempt of court, a misdemeanor. Kaplan allegedly has close ties to Chevron.
After prosecutors from the Southern District of New York declined to pursue the case, Kaplan – unconstitutionally, Donziger has argued – carried it out on his own, assigning a private law firm that has also represented Chevron. Judge Loretta Preska, a member of the Chevron-friendly Federalist Society, oversaw the case. Presca was reportedly inattentive throughout the trial and showed clear contempt for the human rights lawyer. At one point she said of Donziger, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”
Mainstream media hardly covered the case. And Donziger, to nobody’s surprise, was convicted. While awaiting the results of an appeal, Presca refused to release him, placing Donziger on house arrest in advance of his six-month prison sentence (which was subsequently shortened as part of a Covid-related early release program, placing him back on house arrest). At the time of this writing, Donziger has been under supervision for almost 900 days, which he says is by far the longest punishment anyone convicted of this charge has ever received.
Meanwhile, the struggle continues: activists are still taking to the streets, adding “Free Donziger” to their pleas for justice in the Amazon. And celebrities – notably former presidential candidate Marianne Williamson and actress Susan Sarandon – are again throwing their weight behind the cause.
I haven’t taught this course since Donziger’s prosecution, but when I do I’m thinking of expanding the unit to include material on law as it relates to global capitalism, environmental destruction, and indigeneity. This excites me, because I think we’ll be able to ask some questions that represent the frontier of law and society scholarship as the planet warms and resources grow increasingly scarce. To what extent are corporations – particularly the 100 companies responsible for 71% of global emissions – untouchable under current arrangements? When it boils down, does law under global capitalism actually have the capacity to protect the rights of Indigenous peoples from extractive corporations? And if such a monumental effort failed to get justice, what else can be done?
I hope you give Crude a look; I’m happy to answer questions about my experience and welcome any suggestions.
****
Jamie Longazel is Associate Professor of Law & Society at John Jay College and is affiliated with the International Migration Studies program at the CUNY Graduate Center. He is currently serving on the Consortium of Undergraduate Law and Justice Programs (CULJP) Board of Directors. He can be reached at [email protected].
The film focuses on a portion (2006-2007) of a massive class action lawsuit set in the Ecuadorian Amazon. The plaintiffs, a group of 30,000 Indigenous Ecuadorians and five Amazonian Indigenous groups, claimed that Chevron (formerly Texaco) poisoned their ancestral land. Claimants say the American oil company did so while mining the Lego Agrio oil field from the 1970s to 1990s, causing catastrophic environmental harm including the pollution of rivers and streams on which the Ecuadorians rely for survival. The evidence in the film is damning: we’re shown children with nasty skin conditions, interviews with grieving mothers whose young children died of cancer, dead chickens, and ponds of carelessly discarded oil waste.
Chevron denied any wrongdoing. They pinned the blame on Petroecuador, a state-owned oil company that has since taken over mining operations in the area. Adding to the film’s allure as a legal thriller, the trial literally takes place in the jungle. The parties roam around inspecting various contaminated sites. One review deems Crude “a ground-level view of one of the most extraordinary legal dramas of our time.” Students find the film gripping and are always eager to hear what has happened since.
As a bonus for law-school-bound students interested in cause lawyering, viewers get to know the attorneys representing the Ecuadorians quite well. Particularly Pablo Fajardo, a young Ecuadorian man who at the time was just beginning his legal practice; and Steve Donziger, a Manhattan-based human rights attorney who has spent the bulk of his legal career on this case. Fajardo is depicted as reserved and at times naïve, but as we get to know him we see clearly that he’s smart, charismatic, and determined. He holds his own when arguing with Chevron’s intimidating trial attorney – a very animated tall, slender man who wears an explorer’s cap. Donziger on the other hand could come off as pushy and controlling, but it’s convincing that that he has the best interest of the Ecuadorian people in mind.
Before viewing the film, I ask my students to read materials to familiarize themselves with three different perspectives on the relationship between law and social change: Gerald Rosenberg’s (1990) Hollow Hope, Michael McCann’s (1994) concept of legal mobilization, and Marc Galanter’s (1974) classic “Why the Haves Come Out Ahead.” The film provides plenty of evidence to support each perspective. But I think it challenges each in important ways, too.
Rosenberg’s perspective, which points to the limits of litigation for achieving social change, particularly when there’s a disconnect between societal values and legal rulings, comes out looking very convincing, especially when we consider what transpired after the film’s release. In 2011, an Ecuadorian court ordered Chevron to pay $18.2 billion in compensation. The Ecuador Supreme Court upheld the verdict, reducing the award to $9.5 billion. But Chevron has refused to pay. They called the verdict “illegitimate and inapplicable.” Even though it was Chevron who initially advocated moving the case form the U.S. to Ecuador, they went on to resume their legal defense in the U.S. where an appeals court deemed the verdict unenforceable. One can argue that after all these years of seemingly endless legal battles, 30,000 Ecuadorians have yet to achieve anything resembling justice.
Yet there’s also plenty of evidence to support Michael McCann’s (1994) legal mobilization model, which, in conversation with Rosenberg, says, yes, these limits are real, but we also need to acknowledge how litigation draws attention to issues and mobilizes people who come to see their hardship as a violation of their rights. To that end, the film does an excellent job depicting the case as both a legal and public relations struggle. Donziger is skilled in the latter: he pitches and lands a profile of Fajardo in Vanity Fair, which, in turn, gets the attention of Trudie Styler and her rock star husband, Sting. In the film Donziger flies Styler to Ecuador where she tours the polluted landscape and speaks with impacted people as the cameras roll. He does the same with Ecuador’s president Rafael Correa, who at the time was riding momentum from a recent electoral victory. Later we’re taken to Giant’s Stadium in New Jersey, where Sting’s band The Police play in front of a massive crowd for the benefit of the Ecuadorians’ cause. The litigation may have been futile to a degree, but it clearly did something. As I always remind my students, we wouldn’t have even been covering the case had it not been for the lawsuit and the attention it’s attracted.
Finally, we take a look at Marc Galanter’s classic article “Why the Haves Come Out Ahead.” Galanter argues that the ‘haves’ are ‘repeat players,’ intimately familiar with all aspects of the legal process. This is in sharp contrast to what he calls “one-timers,” who enter trials without much, if any, experience. Clearly, if there’s a case worthy of comparison to the biblical struggle between David versus Goliath, this is it. My students tend to see application of Galanter’s ideas somewhat obvious in comparison to the other two, although I encourage them to think about a wide array of advantages that Chevron brings to the case (e.g., their upper-hand public relations).
Then there’s the recent developments – namely Chevron’s all out legal and public relations assault on Donziger. The oil company sued their adversary under the Racketeer Influenced and Corrupt Organizations (RICO) Act, using testimony from an Ecuadorian judge who claimed – and later recanted – that Donziger corrupted the case by bribing a judge. When Donziger refused U.S. District Judge Lewis Kaplan’s request to turn over his phones and computers on account of attorney-client privilege, the judge charged him with contempt of court, a misdemeanor. Kaplan allegedly has close ties to Chevron.
After prosecutors from the Southern District of New York declined to pursue the case, Kaplan – unconstitutionally, Donziger has argued – carried it out on his own, assigning a private law firm that has also represented Chevron. Judge Loretta Preska, a member of the Chevron-friendly Federalist Society, oversaw the case. Presca was reportedly inattentive throughout the trial and showed clear contempt for the human rights lawyer. At one point she said of Donziger, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”
Mainstream media hardly covered the case. And Donziger, to nobody’s surprise, was convicted. While awaiting the results of an appeal, Presca refused to release him, placing Donziger on house arrest in advance of his six-month prison sentence (which was subsequently shortened as part of a Covid-related early release program, placing him back on house arrest). At the time of this writing, Donziger has been under supervision for almost 900 days, which he says is by far the longest punishment anyone convicted of this charge has ever received.
Meanwhile, the struggle continues: activists are still taking to the streets, adding “Free Donziger” to their pleas for justice in the Amazon. And celebrities – notably former presidential candidate Marianne Williamson and actress Susan Sarandon – are again throwing their weight behind the cause.
I haven’t taught this course since Donziger’s prosecution, but when I do I’m thinking of expanding the unit to include material on law as it relates to global capitalism, environmental destruction, and indigeneity. This excites me, because I think we’ll be able to ask some questions that represent the frontier of law and society scholarship as the planet warms and resources grow increasingly scarce. To what extent are corporations – particularly the 100 companies responsible for 71% of global emissions – untouchable under current arrangements? When it boils down, does law under global capitalism actually have the capacity to protect the rights of Indigenous peoples from extractive corporations? And if such a monumental effort failed to get justice, what else can be done?
I hope you give Crude a look; I’m happy to answer questions about my experience and welcome any suggestions.
****
Jamie Longazel is Associate Professor of Law & Society at John Jay College and is affiliated with the International Migration Studies program at the CUNY Graduate Center. He is currently serving on the Consortium of Undergraduate Law and Justice Programs (CULJP) Board of Directors. He can be reached at [email protected].
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