Law and Social Movements: It’s More than Just Litigation and Courts

By Steven A. Boutcher

As the essays in this special symposium demonstrate, the relationship between law and social movements has become an increasingly vibrant area of focus for movement scholars, and for good reason. Focusing on legal institutions, such as the courts, raises many important questions that continue to guide movement scholarship, including the role of elites in movement processes, the difficult balance between institutional tactics and broader movement building, and the relationship between strategy and tactical choices.  However, as these essays also suggest, much of movement scholarship appears centrally concerned about the utility of litigation for advancing movement goals—fundamentally a question about outcomes, rather than one about dynamics.

So, how effective is litigation and a reliance on the courts for advancing movement goals? Well, it’s a mixed bag. Early scholarship on this question suggests that law is biased toward the status quo and reinforces social hierarchies (Galanter 1974; Kairys 1998). To the extent that “outsiders” rely on law and rights-based strategies, a pessimistic picture emerges about the role of courts as venues for social change. Early scholarship bears this out: the classic works of both Stuart Scheingold (2004) and Joel Handler (1978) were highly skeptical about the effectiveness of litigation for achieving broad social change (Rosenberg 1991). Essentially, litigation is a conservative strategy dominated by elites and it saps energy from more political and broad-based grassroots organizing (see also Meyer and Boutcher 2007).

Although early scholarship was skeptical about the role of litigation for social change, more recent scholarship has focused on the more subtle, nuanced, and dynamic ways that law affects social movement processes. Whereas early scholars focused on a top-down, formalistic relationship between legal institutions and social movements, recent scholarship decenters law from a narrow focus on the courts and shifts the analysis to the social movement—focusing on the constitutive role that law plays in movement dynamics (McCann 1994). This line of scholarship has focused on how law structures the very terrain that activists navigate in their struggles to reconstitute social relations. In line with this perspective, the research agenda has been directed toward the indirect, or symbolic, effects of law and litigation, focusing on how activists have used litigation to leverage power from targeted groups, build organizational resources, and mobilize constituents. This line of research also questions the assumption that lawyers necessarily co-opt and channel movement strategies – demonstrating that legal strategies are often incorporated in conjunction with other political strategies (McCann 1994; Cummings and Eagly 2001).

This debate has preoccupied scholarship on law and social movements for the last several decades and will most likely motivate continued research. However, research on law and social movements is also much broader than a simple focus on litigation and courts. The constitutive approach to law and social movements broadens the analyst’s gaze toward a broader set of relationships between law and social movements. Law becomes more than just litigation and court outcomes, and instead becomes a powerful symbolic resource, and constraint, that influences broader movement processes.

Moving Beyond the Traditional Debate

The contemporary field of law and social movements within law and society scholarship raises important insights that go beyond the traditional, and stale, debate about the effectiveness of litigation. Here, I articulate a few points where I think the field has gone beyond traditional arguments focused on courts and litigation, and where more research is needed.

• Public interest law organizations (PILOs) do not constitute a movement, but are just one particular actor among a range of movement actors. There is a tendency for researchers to ask why movements go to the courts at particular times and not at others, as if there is a strong strategic rationale for when PILOs become active. To the extent that most modern movements include PILOs, litigation is going to be a constant form of movement activity, or these organizations risk looking irrelevant. Thus, the question of when the courts are used seems misguided.

• Relatedly, if contemporary movements consist of PILOs, at least in part, then we can begin to discuss legal strategies as a type of tactical repertoire, which raises important questions about how the repertoire emerged, how it diffused across movements, and ultimately how strategic a choice it is to use litigation to articulate movement claims. The rise of litigation as a tactic across movements suggests that there might be less reflexivity attached to its usage as time goes on. This is not to suggest, however, that legal activists do not strategize about timing or about the effectiveness of particular legal arguments. Thus, PILOs are going to continue to use the courts even when the opportunities for success seem limited (see Meyer and Boutcher 2007).

• Because PILOs constitute one type of actor in relation to other movement actors, an interesting line of inquiry should focus on the status and power inequities and the agenda setting capabilities that exist across actors. To the extent that legal strategies becomes legitimated over other tactical choices, then lawyers and their organizations hold a lot of power in shaping which claims and grievances get heightened within the field. A recent analysis by Sandra Levitsky (2006) suggests that legal actors are in a position to influence certain grievances over others. Her analysis of Chicago LGBT organizations suggests an asymmetric relationship between legal groups and other organizations. Legal groups will work with others when assistance is requested, but the relationship is not reciprocated, allowing legal actors to continue working in isolation from other actors and pushing forward on an agenda that might be disconnected from what other actors want.

• Not all lawyers are the same. There is a growth industry within law and society scholarship focused on “cause lawyers” who are distinguished from conventional lawyers based on their personal commitment to a particular cause. This is different from the “hired gun” image of the lawyer who advocates in the best interests of the paying client, regardless of the issues at stake. Cause lawyers can inhabit many areas of law, but the prototypical examples are often those attached to public interest organizations like the ACLU (see Boutcher 2013). However, not all cause lawyers are similar in their strategic impulses. We know that some will “go it alone,” ignoring organizing broader strategies, while others actively break down the barriers between legal strategies and grassroots mobilization (Cummings and Eagly 2001), due in part to how they navigate their own personal and professional identities (Jones 2005). Thus, not all lawyers necessarily co-opt or channel movements away from broader political goals.

• Although movement scholars are concerned about movement success in the courts, much can be learned from studying legal mobilization in the face of defeat (Boutcher 2010). Although defeats can be crippling or demobilizing, they can also motivate movement mobilization (NeJaime 2011). For instance, in my study of the LGBT movement following the loss in Bowers v. Hardwick, I found that activists were able to mobilize increased funding, incorporate diverse strategies, develop new organizations, build new alliances across different actors, and shift venues. Thus, focusing solely on the question of legal success misses many of these dynamics.

References:

Boutcher, Steven A. 2010. “Mobilizing in the shadow of the law: Lesbian and gay rights in the aftermath of Bowers v. Hardwick.” Research in Social Movements, Conflict, and Change 31: 175–205.

Boutcher, Steven A. 2013. “Lawyering for Social Change: Pro Bono Publico, Cause Lawyering, and the Social Movement Society.” Mobilization 18(2).

Cummings, S., and Eagly, I.V.  2001. “A critical reflection on law and organizing.” UCLA Law Review 48: 443–517.

Galanter, Mark. 1974. “Why the ‘haves’ come out ahead: Speculations on the limits of legal change.” Law and Society Review 9: 95–160.

Handler, Joel F. 1978. Social Movements and the Legal System: A Theory of Law Reform and Social Change. New York: Academic Press.

Jones, Lynn C. 2005. “Exploring the Sources of Cause and Career Correspondence Among Cause Lawyers.” In the Worlds Cause Lawyers Make, edited by Austin Sarat and Stuart Scheingold. Palo Alto, CA: Stanford University Press.

Kairys, David. 1998. The Politics of Law: A Progressive Critique, 3rd edition. New York: Perseus.

Levitsky, Sandra R. 2006. “To Lead With Law: Reassessing the Influence of Legal Advocacy Organizations in Social Movements.” Pp. 145-163 in Cause Lawyers and Social Movements, edited by A. Sarat, and S.A. Scheingold. Stanford, CA: Stanford University Press.

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

Meyer, David S. and Steven A. Boutcher . 2007. “Signals and spillover: Brown v. Board of Education and other social movements.” Perspectives on Politics 5: 81–93.

NeJaime, Douglas. 2011. “Winning through Losing.” Iowa Law Review 96: 941-1012.

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press.

Scheingold, Stuart A. 2004. The Politics of Rights: Lawyers, Public Policy, and Political Change, 2nd edition. Ann Arbor: University of Michigan Press.