Beware of Lawyers Bearing Gifts, or Why Social Movements Should Be Wary of Litigation

By Steven E. Barkan

The U.S. Supreme Court is expected to rule later this spring on issues concerning same-sex marriage. Whatever the Court decides, its decisions will be momentous. This fact brings to mind an intriguing topic in the law and social movement literature for social movement scholars and activists to consider: the degree to which litigation (or legal mobilization, to use a favored term in the literature) is a potentially effective strategy for achieving social movement goals. In view of the impending Court decisions, certain observations, based on a growing body of work by legal and social movement scholars, seem in order.

First and foremost, this body of work reaches very disparate conclusions. Some studies conclude that litigation can well be a very effective strategy for achieving movement goals, while other studies conclude that litigation is a weak strategy in this regard and may well thwart movement goals for other reasons. As Michael McMann[1] summarizes this evidence, “how law matters for social movements is infinitely more complex, mixed, variable, and contingent than can be captured in simple position statements.”

Second, to the extent social movements might have only modest success in achieving their goals through litigation, as many scholars assert, certain issues explain this situation. The courts are often unsympathetic to social movement claims, and legal doctrine and rules of judicial procedure may pose obstacles that limit or entirely prevent legal mobilization from winning legal victories. Further, legal mobilization is often costly in both time and money, and social movements may lack sufficient amounts of these precious resources to enable their legal mobilization to succeed.

Third, even if social movements do win favorable court rulings, this outcome may then motivate the targets of the rulings to launch their own legal and other efforts to thwart the rulings’ impact, as notoriously happened after both the 1954 Brown v. Board of Education decision and the 1973 Roe v. Wade decisions. After both cases, opponents of school desegregation and abortion rights respectively fought back with every means, legal and illegal, at their disposal. School desegregation was not finally achieved for at least a decade, and only then because of the civil rights movement, while the anti-abortion rights movement has been able in many ways to limit the practical availability of legal abortions in the forty years since Roe.

Fourth, any legal victories won by social movements may ultimately prove Pyrrhic. Many such victories achieve only minor changes in existing social, political, and economic conditions. Moreover, the fact that they are victories may serve to placate social movement members and to convince the news media, the public, and other external parties of the legitimacy of the existing political and economic order. In the long run, then, successful legal mobilization may ironically help to preserve the status quo rather than to change it significantly.

A fifth observation should be of special interest to social movement scholars, particularly those who came of age during the protest era of the 1960s and early 1970s or who study movements from that era. An article of faith among many scholars, going back at least to Gamson’s[2] Strategy of Social Protest, Piven and Cloward’s[3] Poor People’s Movements, and nonviolent activist David Dellinger’s[4] More Power Than We Know, is that protest works and is, in fact, the most powerful resource social movements have and strategy they can deploy to achieve social change. Explicit or implicit in this understanding is the idea that social movement strategies that do not involve protest will be much less likely, and perhaps not at all likely, to be able to win important movement goals.

To the extent that protest is indeed important for social movement success, legal mobilization may limit such success because it channels activists’ time, money, and energy into legalistic efforts and away from protest. Moreover, the attorneys who handle social movement litigation may pressure their movement clients to shun protest for fear it may generate bad publicity and anger judges and thus help produce judgments against their clients.

For all these reasons, legal mobilization may thus well be, as political scientist Gerald Rosenberg has famously called it, “the hollow hope.” Reflecting this view, Cary Coglianese[5] argued that the contemporary environmental movement erred in using a legalistic strategy aimed at achieving relatively narrow goals in lieu of grassroots organizing and protest tactics. Commenting on the 1960s and 1970s social movements, Joel Handler[6] similarly lamented the choice of legal mobilization: “In sum, social-reform groups find it difficult to obtain tangible results directly from law-reform activity. It can be accomplished, … but, on the whole, special circumstances are needed.”

This essay purposely began with a rather provocative title to signal the pessimistic assessment it has so far painted. To avoid the “simple position statement” against which McCann warns, let me now reverse direction and quickly and rightfully acknowledge that social movements have indeed achieved significant victories, too numerous to list here, in the courts that have advanced their social, political, and economic goals. Should the Supreme Court rule in favor of same-sex marriage later this term, tens of thousands of same-sex couples and their millions of supporters will rejoice across the land, as well they should.

Moreover, although law and social movement scholars disagree on the value of legal mobilization for directly achieving movement goals, they generally agree that legal mobilization often has important indirect benefits. These benefits occur for at least two reasons. First, legal mobilization signals to aggrieved groups that their grievances are in fact their legal rights and, by so doing, helps to provide them a sense of legal entitlement. Second, victories obtained via legal mobilization may give aggrieved groups new hope for change and spur them to political action, an effect that is commonly claimed as occurring among Southern African Americans in the wake of the Brown victory. McCann[7] found a similar effect in his study of the gender pay equity movement: although the movement won only relatively modest pay increases, women workers nonetheless gained a significant sense of political empowerment from these increases that in turn led them to become more active in labor unions and to seek work-related reforms beyond pay equity.

So as social movement scholars and activists anticipate the Supreme Court’s rulings on same-sex marriage, they should do so with full realization of the complexity of legal mobilization. If the Court does rule in favor of same-sex marriage, this achievement will certainly be a significant victory. Yet it may also spur opponents of same-sex equality to strengthen their efforts, and it may also convince many Americans that same-sex equality has finally arrived despite clear evidence of continuing same-sex inequality in other realms of life. Even if those of us who favor same-sex marriage get a chance to rejoice, then, we must do so soberly, knowing that setbacks will occur and that the struggle for full equality is far from over.

References

1.         McCann, Michael. 2006. “Law and Social Movements: Contemporary Perspectives.Annual Review of Law and Social Science. 2: 17-38 (p. 19).

2.         Gamson, William A. 1975. The Strategy of Social Protest. Homewood, IL: Dorsey Press.

3.         Piven, Frances Fox, and Cloward, Richard A. 1979. Poor People’s Movements: Why They Succeed, How They Fail. New York: Vintage Books.

4.         Dellinger, David T. 1975. More Power Than We Know: The People’s Movement Toward Democracy. Garden City, NY: Anchor Press.

5.         Coglianese, Cary. 2001. “Social Movements, Law, and Society: The Institutionalization of the Environmental Movement.”  University of Pennsylvania Law Review 150: 85-118.

6.         Handler, Joel. 1978. Social Movements and the Legal System. New York: Academic Press.

7.         McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press.

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Filed under Essay Dialogues, Movements and the Courts

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