This course will examine the role of law as a tool of collective struggle through case studies of five pivotal social movements that have reshaped American politics: the civil rights, labor, reproductive rights, same-sex marriage, and conservative movements. Our method will be to analyze and compare the context, objectives, tactics, and outcomes of each movement, focusing specifically on how law and lawyers have played a role in advancing—and sometimes undercutting—movement aims. We are primarily concerned with understanding how lawyers and activists perceive the efficacy of legal action and evaluating the conditions under which law “works” as a social change tool (and what this means). Toward this end, we will distinguish between, and appraise the importance of, the “direct” and “indirect” effects of legal action—winning legal rights in court or through legislative action (direct) versus using law to raise consciousness of injustice, win public opinion, leverage policy concessions, or negotiate private resolutions (indirect). Through a deep analysis of each case, we will explore three different sets of questions about the relation between law and social change. First, how does law come to play a role in movement strategy? What are the legal issues that construct and frame injustice and how do activists and lawyers come to view law as an important tool of redress? Who makes the key decisions about when and how to deploy law? What tensions arise and how are they managed? How do lawyers’ professional responsibilities inform movement strategy? Second, what are the different objectives of legal action across movements and how do they relate with other movement goals? What strategies and tactics do lawyers use to achieve these goals and what factors predict their success? Are legal goals compatible or incompatible with movement ambitions? Does the way that legal goals get defined and executed differ across progressive and conservative movements? Finally, what are the social change outcomes and how do we judge their impact? What assumptions and methodological tools should we use to evaluate movement impacts? How do we answer the fundamental question: Does law ultimately help or hurt social movements?
The course responds to the curious transformation of the study of law and social change over the past decade. Historically the domain of the “outsider” scholars (in law and society, critical legal studies, critical race theory, and clinical theory), the empirical study of law’s relationship to social activism, its impact on society, and the role of lawyers in movements have recently achieved mainstream prominence. At what has long been considered the legal academic apex—constitutional theory—scholars are engaged in a robust and ideologically charged debate over the appropriate role of judicial review—“muscular” versus “minimalist”—that traces back to earlier concepts, but is now playing out upon the terrain of history, political science, and sociology. These scholars are building theory from empirical assessments of how constitutional law is made “from below” and evaluations of whether court decisions change behavior and, if they do, which way the change cuts—increasing support for protected rights or provoking backlash against them. Some of the foremost legal historians have joined the debate, reappraising the impact of seminal civil rights cases on racial practices, social mores, and American politics. In these accounts of social change, lawyers occupy a central role mobilizing law and thus understanding how lawyers shape disputes, make strategic and tactical decisions, and influence the direction of change processes and outcomes has reemerged as a central scholarly endeavor. The overarching emphasis on the empirical study of behavior—both of the agents and subjects of legal change—reflects and reproduces a broader trend across disparate legal fields: turning away from theories of law that rest upon implicit assumptions about rule compliance or stylized models of rational action and toward descriptive and normative accounts based on the real decision making processes of real people. Hence, a defining feature of the contemporary scholarly landscape is that the fundamental question of jurisprudence—how law relates to society—is now being asked by a generation of scholars equipped with empiricism and steeped in interdisciplinarity.
This course seeks to engage this literature with an eye toward understanding its central insights and thinking about its application to social movements, past and present—and the role of lawyers within them. Thus, we will approach the cases both with a lawyerly and social scientific gaze. We want to understand the strategic and doctrinal elements of movement legal claims, but also how they come to have a meaning that may either expand or limit their transformative potential. We also want to explore the interaction between winning legal redress as a matter of formal law and winning changes in social practice and realignments of political power. Can court victories lead to substantive reform on the ground given the institutional constraints under which courts operate? Do courts shape or simply reflect public attitudes? If they get too far ahead of the public, will court decisions provoke backlash? How much does our ultimate assessment of the effectiveness of legal action depend upon judgments about the viability of alternative political paths not taken? How do lawyers’ professional role conceptions and obligations shape their ability to be effective agents of change?
In the seminar, we will grapple with these fundamental questions and consider what they teach us about how lawyers should approach work in connection with collective efforts to transform society. We will thus use the cases to reflect not just on what lawyers have done right and wrong, but what they might do better. We begin with what has become the paradigmatic case study of law and social movements: the NAACP LDF’s impact litigation campaign to end legalized segregation in public education. We explore the role of lawyers in the case and engage texts that argue that Brown v. Board of Education did not meet the movement’s aims of desegregation, nor did it directly stimulate broader civil rights movement activity. From there, we go back to the labor movement, which succeeded in transforming the legal regime of union recognition, but lost power through a combination of strategic, legal, and economic changes. Next we will explore the so-called “backlash” thesis in the context of two movements: first, for abortion rights, looking at efforts both before and after Roe v. Wade, and second, for same-sex marriage, comparing the national landscape to the campaign in California, which has now taken center stage because of the Supreme Court’s review of California’s constitutional ban on same-sex marriage in Perry v. Schwarzenegger. We conclude by looking at the rise of the multifaceted conservative movement, which has contested many of the victories of the progressive movements studied here. We explore the origins of various conservative movements, analyze the synergies and tensions among them, and compare how actors within them think about and deploy law to achieve movement ends.