Don’t Forget Parties and Policy Legacies

By Drew Halfmann

Many of the essays in this Mobilizing Ideas dialogue examine the successes and failures of the abortion movements—arguing for example that the anti-abortion movement succeeded by co-opting discourses of “choice” and “women’s health,” organizing through churches, and pursuing incremental change, but was hurt by its violence, extremist rhetoric and attacks on contraception; while the abortion rights movement failed by focusing on “abortion rights” rather than “reproductive justice” and on defensive litigation.

Here, I’d like to highlight a few additional factors that helped determine the successes, failures, and strategic options of the abortion movements: the policy legacies of the Roe v. Wade and Planned Parenthood vs. Casey decisions, the relationship of the movements to political parties, and the electoral fortunes of those parties.  

Standing Up for Rights: Assessing Legal Mobilization Cross-Nationally

By Raul A. Sanchez Urribarri and David G. Ortiz

The use of litigation by social movements in order to achieve social change (typically referred to as legal mobilization) has become a topic of major significance at a global scale. Whilst the lion’s share of legal mobilization has arguably taken place in Western democracies, particularly in the United States (with the best known example being the Civil Rights movement, as has been correctly pointed out by last week’s posts, recent efforts have sought to understand similar developments in the developing world across multiple scenarios, including weakly institutionalized democracies, and even in authoritarian regimes where legal mobilization is costly, but not out of the question.  As a result, there is increasing scholarly attention to these phenomena (for example, see Gauri and Brinks 2008; Gargarella et al 2006; Vanhala 2011; Yamin and Gloppen 2011; Young 2012).  Sometimes these efforts are channeled through high-profile litigation that intentionally seeks to settle “mega-political” questions that prove intractable in other venues (Hirschl 2008).  This is the most visible instance of legal contention by social movements, and the one that tends to highlight the need to understand this phenomenon.  However, legal mobilization is a much more complex, fragmented, and widespread reality, which includes smaller (even routine) trials, a range of efforts outside the courts (sometimes by actors not directly involved in the legal process), multiple (and even competing) goals, and a range of possible effects well beyond the desired policy change. 

The Courts and Social Movements: Two Literatures and Two Methodologies

By Chris Hilson

The relationship between courts and social movements is a complex one and a rich academic and activist literature has evolved around it. Simplifying somewhat, the academic literature can be divided into two broad camps. First, there is the predominantly U.S. work in the law and society tradition, which has explored the utility of using the courts as vehicles for social change, with classic “anti”s like Rosenberg and his Hollow Hope (1991) and “pro”s like McCann (1994). This work itself arises out of earlier classics on legal mobilization such as Marc Galanter’s “Why the ‘Haves’ Come Out Ahead” (1974). A significant proportion of it is focused on movement outcomes and debates about the success of litigation as a strategy.

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.

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.

Social Movement Activism and the Courts

By Siri Gloppen

Will going to court help or harm the cause? This is a burning question for social movements and scholars siding with them. And it should be given careful consideration, in light of socio-legal scholarship suggesting that the “haves” come out ahead in court (Galanter 1974), and that even when social movement litigation succeeds, court victories are “hollow hopes” (Rosenberg 1991) bringing no real change. Fears are not only that it is ineffective and a waste of resources, but also that it may be counterproductive—that courts-centered activism will legitimize the system, circumscribe the struggle in ways that prevent radical challenges to the status quo, and change and de-radicalize the movement itself (Scheingold 1974).

The When, Why, and How of Legal Mobilization

By David Pettinicchio

Social movement scholars have increasingly broadened their view of the role of social movements vis-à-vis institutions and political outcomes– that is, beyond using direct action to challenge authority. The fact that you are reading a short essay about social movements and the courts is a testament to that. As movements became increasingly viewed as part of “everyday politics” and the use of institutionalized tactics more common, not surprisingly, legal mobilization emerged as an area of interest among political sociologists and social movement scholars.

The Revolution Will Not Be Funded

By Karen Gargamelli

The Revolution Will Not Be Funded,
Edited by INCITE! Women of Color Against Violence. South End Press, 2001

This book serves as an important warning to young and well-intentioned activists and organizers. Beware! The Non-Profit Industrial Complex (NPIC) corrupts radical minds.  The Revolution Will Not Be Funded was published the year my friends and I graduated from the City University of New York (CUNY) School of Law—a small, progressive law school designed to produced “lawyers in the service of human needs.” It was evident to us, even as young graduates, that the NPIC had co-opted many of our mentors and that it would soon deflate and paralyze many of our lively and passionate classmates.  We wanted to resist the NPIC and its works and its empty promises.

Myself and two others from the Class of 2007 used The Revolution Will Not Be Funded as a guide to help us interpret and navigate the world of foundations and other 501(c)(3)s. We used this book to found our own organizations—Common Law, Inc. in 2007 and Organizing4Occupation in 2011. 

“Ambulance chasing” as legal mobilization?

The Americans with Disabilities Act (ADA) is seen as an important victory for the disability rights movement after a long struggle for a comprehensive civil rights law protecting persons with disabilities form discrimination. Unlike the Rehabilitation Act (whose Section 504 was the first truly rights-oriented language in American disability policy), whereby political entrepreneurs had much more to do with constructing and shepherding the policy that subsequently lead to the rise of the modern disability rights movement, key movement figures were much more aware and active in the politics leading up to the ADA. Yet, although the ADA was drafted in 1988, signed into law in 1990 and took effect in 1992, my colleague, Michelle Maroto, and I were surprised to learn that employment rates and economic well-being among persons with disabilities have actually declined over the last 20 years. In drafting a manuscript on the subject, we essentially find two arguments seeking to explain the failure of this law: one claims that the ADA increased the cost of hiring persons with disabilities – unintended harms – so to speak; the other suggests that the ADA was never truly applied due to judicial resistance and narrow, illogical interpretations that favored employers over plaintiffs. Beginning in 2006, both activists and institutional entrepreneurs formally acknowledged the “failure” of the ADA (at least in improving economic conditions) through a set of hearings that would eventually lead to the ADA Restoration Act of 2007/2008. By and large, what was being restored was the intent of the ADA which had been undermined by the courts – the courts have historically not been champions of reasonable accommodation.