Movements and the Courts: Round Two

As promised, we have another set of great posts addressing the relationship between social movements and the legal system.  Many thanks to our contributors to round two:

Steven A. Boutcher, University of Massachusetts, Amherst (essay)
Chris Hilson, University of Reading (essay)
David Pettinicchio, Oxford University (essay)
Raul Sanchez Urribarri, La Trobe University  and David G. Ortiz, Tulane University (essay)

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. 

Cross-national gay marriage politics, the courts, and the context of activism

Mobilizing Idea’s recent Essay Dialogue on movements and the courts was inspired in part by the DOMA case on the U.S. Supreme Court docket. In her essay, Martinez discusses the role of the Supreme Court in light of a changing political and cultural context regarding gay marriage. While U.S. states have become increasingly polarized on same-sex marriage (SSM), public opinion appears to have shifted in favor of marriage equality. These environmental shifts may be important for legal mobilization. Drawing from classic sociological theory, Martinez writes that “When activists turn to law and demand legal change, it only works when the cultural conditions and political conditions are out of alignment with law. The law changes to match social beliefs and practices.” As Bua of the Huffington Post claims, “the times they are a ‘changin.’”

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.

February Dialogue: Social Movements and the Courts

The U.S. Supreme Court’s recent decision to hear arguments later this year on two cases relevant to LGBT rights raises questions about the relationship between social movement activism and the courts. Contributors to this dialogue address such questions as: How, when, and why do social movements decide to use the courts as a viable strategy for pursuing their goals? How, when, and why might states use courts to repress dissent? And how have movements within the field of law shaped how we think about the courts as appropriate (or inappropriate) routes to social change?  Many thanks to our distinguished scholars and activists who have contributed to this conversation:

Steven E. Barkan, University of Maine (essay)
Siri Gloppen, University of Bergen (essay)
Jay Kim and Karen Gargamelli, Common Law (essay)
Elizabeth E. Martinez, California State University Northridge (essay)
Nicholas Pedriana, University of Wisconsin, Whitewater (essay)
David Pettinicchio, University of Oxford, (essay)

Be sure to check back in mid February for a second round of posts on this topic.

Editors in Chief,
Grace  Yukich, David Ortiz, Rory McVeigh, and Dan Myers

Courtrooms as Spaces for Activism

By Jay Kim and Karen Gargamelli

Common Law is a small nonprofit organization in Queens, New York that uses legal education and legal services to support organizing efforts.  One of our founding principles is our belief that the court system is inherently unfair.  Because of this, it is impossible for us to view the courts as an appropriate route to social change.  The courts can, however, be a space for activism and politicization.

We have spent the past five years working with homeowners fighting back against foreclosure.  We have seen firsthand how entire neighborhoods have been devastated by the foreclosure crisis while the court system has allowed banks to act illegally.  Because of this, we have intentionally targeted courtrooms as a place for protest and activism. 

Predicting the Legal Outcomes on Marriage Equality: What Explains Legal Change Around Civil Liberties?

By Elizabeth E. Martinez

When do social movements use the courts in pursuing their goals? The question might be rewritten to say: assuming that activists will always or often use the courts as one of many strategies, when are they successful in court? When is the law likely to change in response to activist’s lawsuits? This is a pertinent question as we see the U.S. Supreme Court taking up two cases about marriage equality.

One case is about Proposition 8, which took away the right for same-sex couples to marry in California (Hollingsworth v. Perry), and the other case (U.S. v. Windsor) is about the Defense of Marriage Act (DOMA)

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).