The Anatomy of Social Movement Litigation
abstract. What do those seeking social change stand to gain or lose when they turn to litigation? Scholars of legal mobilization have addressed how litigation can shape social movements through its indirect effects, as going to court can unite, mobilize, or legitimize activists and their opponents. But these previous studies tend to disregard the nuts and bolts of litigation, instead focusing on judicial decisions or treating lawsuits as monolithic events. In contrast, this Note attends to the process of litigation in all its complexity, arguing that particular elements of litigation—namely claiming, discovery, and record building—are critical sources of indirect effects. This Note further argues that while such elements offer activists distinctive opportunities to draw extralegal benefits from legal action, these benefits are enabled and constrained by the procedural rules and norms that structure litigation. By constructing a new approach to legal mobilization that highlights the centrality of procedure, this Note challenges the terms of the debate over the utility of courts to social movements.
author. Yale Law School, J.D. expected 2024; Yale University, Department of History, Ph.D. expected 2027. I am deeply grateful to Scott Cummings, Justin Driver, Allison Frank, Joseph Mead, Douglas NeJaime, Reva Siegel, Rachael Stryer, and Alexander Zhang for their feedback, support, and encouragement. I would also like to thank the editors of the Yale Law Journal, especially Michael Loedel, Thomas Ritz, and Saylor Soinski. Finally, I owe a debt of gratitude to those who spoke with me about their work in East Ramapo: Olivia Castor, Oscar Cohen, Ana Maeda-Gonzalez, Perry Grossman, Willie Trotman, and Steve White.
Introduction
Why do social movements go to court? Sometimes the answer is straightforward: activists seek the coercive power of a judicial decree. But litigation can also shape social movements in indirect ways. Legal concepts like rights can frame grievances and unite activists around particular goals. Judicial decisions can inspire movements by providing symbolic victories or defeats. The filing—or the mere threat—of a lawsuit can bring recalcitrant parties to the bargaining table. Though legal mobilization scholarship examines the indirect effects of litigation on movements, this field was long neglected by legal academics and left to sociolegal scholars in other disciplines.1 A generation ago, one could lament that law professors and sociolegal scholars “communicate only fitfully, if at all, with one another,” facing a “language barrier . . . higher than the one between English and French, German or Italian.”2
Recently, the legal mobilization framework has come to play a larger role in legal scholarship.3 Despite this welcome change, significant divides remain between scholars of law and of social movement theory. “[G]reater interdisciplinary dialogue” is still necessary to fully appreciate the effects of law on movements.4 While legal academics and their colleagues across campus may now be speaking the same language, they do so in decidedly different dialects.
This Note seeks to bridge the divide between legal and social movement scholarship by applying the legal mobilization framework to the process of litigation in all its complexity. Previous studies of law’s indirect effects on social movements have generally disregarded the nuts and bolts of litigation, instead focusing on how indirect effects flow from judicial determinations and reducing the ordeal of litigation to its conclusion. This bias is understandable: in law schools, the judicial decision is the coin of the realm. Legal education foregrounds judicial opinions to the exclusion of context and procedural history.5 Though unsurprising, the tendency to focus on outcomes alone is misguided, akin to losing sight of the journey by fixating on the destination. For their part, sociolegal scholars outside of legal academia have also explored the indirect effects that stem from litigation as a whole but have tended to focus more on what happens beyond rather than within the courtroom. These analyses offer crucial insights into how legal action shapes activism on the ground, but they do not always consider the intricacies of litigation.
Missing from both sets of prior accounts is the centrality of procedure to legal mobilization. Although the phases, norms, and rules of procedure go unnoticed or undertheorized, they shape the dividends that movements can reap from their legal efforts. This Note argues that particular elements of litigation—including the pleading of claims, the collection of evidence through discovery, and the creation of a judicial record—are sources of indirect effects, presenting activists with distinctive opportunities to derive extralegal benefits from legal action. However, as this Note demonstrates, these benefits are far from inevitable. Instead, they are facilitated or frustrated by the procedural rules and norms that structure litigation itself.
Disentangling the process of movement litigation sheds new light on whether and how courts are useful vehicles for those seeking social change. Activists have long questioned the value of litigation, characterizing legal action as too slow and too conservative.6 Critical scholars have echoed them, casting doubt on the capacity of courts to produce social change.7 Some charge that litigation is not only ineffective but also harmful, providing pyrrhic victories that demobilize, deradicalize, and distort movements.8 For these critics, litigation is indeed a source of indirect effects, but such effects do more harm than good.9 Others, including critical race theorists, have defended rights-based legal-reform efforts as limited but valuable means of movement building.10 Arguments over the utility of courts to social movements have only intensified in recent years.11 Legal mobilization scholarship emerged out of this debate, employing empirical methods to better understand how legal action advances and impedes movement goals.12 By foregrounding the role of procedure in producing indirect effects, this Note challenges the terms of the debate: any account of the possibilities and dangers of movement litigation must attend to how procedure enables and constrains indirect effects.
This Note explores the anatomy of social movement litigation by attending to its constituent parts.13 Placing sociolegal research in conversation with civil-procedure scholarship, this Note highlights how specific elements of litigation generate indirect effects. It applies this framework to a range of historical examples, revisiting iconic cases on issues as varied as school desegregation, fair employment, marriage equality, consumer protection, and property law. In each case, the courtroom did not serve merely as a venue to resolve private disputes.14 Instead, courts provided conceptual, informational, and rhetorical resources to activists of all stripes. In no small part, these resources were products of process.
This Note argues that three procedural stages, and their accompanying rules and norms, are especially pertinent to legal mobilization. First, the act of claiming can frame grievances in new terms and unite activists around a common vision. Second, discovery enables movement litigants to garner information from their adversaries that may be useful well beyond the courthouse. Even if a document produced during discovery is not critical to one’s legal case, it can be a smoking gun in the court of public opinion. Third, record building enables activists to enshrine and validate their experiences in ways that can be seized upon in further political actions. Claiming, discovery, and record building operate dynamically but produce distinctive indirect effects that can contribute to legal mobilization. They reflect some, though certainly not all, of the ways in which procedure shapes social movement activity.
This Note then proceeds to an in-depth case study of a recent voting-rights lawsuit in East Ramapo, New York—a curious instance when activists went to court knowing full well that a favorable judicial decree would have little direct impact.15 While the East Ramapo Central School District overwhelmingly served low-income students of color, its Board was controlled by white members who exclusively sent their children to private religious schools. As the Board cut back on programs and staff, public-school advocates opposed such changes but made little headway in political channels. In 2017, they filed a federal vote-dilution lawsuit against the district, targeting the at-large system of elections rather than the educational disparities faced by students of color. Members of the public-school community understood that even with a victory in court, they would still lack control of the Board. Drawing on original interviews and contemporaneous reporting, this Note demonstrates that activists instead sought and attained the indirect effects of litigation. These effects flowed from particular stages of litigation and were mediated by procedural rules and norms. This Note thus provides evidence that even when activists are well aware that they will not find salvation through judicial decrees, they may nonetheless turn to courts because of the benefits that radiate from the litigation process.16
Part I reviews traditional accounts of indirect effects, demonstrating that they tend to neglect procedural intricacies and treat litigation as a monolith. Part II advances a disaggregated model of social movement litigation, showing how discrete elements of litigation and their procedural rules and norms are critical to the production of indirect effects. Part II further applies this framework to a wide variety of historical cases. Part III uses this model to examine the case of East Ramapo, relying on public reporting, court documents, and interviews with activists to demonstrate how litigation procedure shapes movement activism outside the courthouse walls.
For notable sociolegal work produced by scholars outside of legal academia, see Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994); Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (1974); Paul Burstein, Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity, 96 Am. J. Soc. 1201 (1991); and Kevin J. McMahon & Michael Paris, The Politics of Rights Revisited: Rosenberg, McCann, and the New Institutionalism, in Leveraging the Law: Using the Courts to Achieve Social Change 63 (David A. Schultz ed., 1998). Some sociolegal scholars were trained in law schools but primarily identified with adjacent disciplines or movements like law and society. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Marc Galanter, The Radiating Effects of Courts, in Empirical Theories About Courts 117 (Keith O. Boyum & Lynn Mather eds., 1983); William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . , 15 Law & Soc’y Rev. 631 (1980-81). Several notable legal scholars have long explored how law shapes social movements, but their ranks were few prior to the early 2000s. See, e.g., William E. Forbath, Law and the Shaping of the American Labor Movement (1991); Joel F. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (1978); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419 (2001); Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297 (2001); Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81 (1994); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. & Soc. Change 535 (1987-88).
Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 U. Pa. L. Rev. 1, 2 (2001); see also Eskridge, supra note 1, at 422 (“Just as law professors have much to learn from social movement scholarship about the dynamics of public law, so sociology professors have much to learn from us about the dynamics of social movements . . . .” (footnote omitted)); Michael W. McCann, How Does Law Matter for Social Movements?, in How Does Law Matter? 76, 76 (Bryant G. Garth & Austin Sarat eds., 1998) (describing the two fields as “mostly independent”).
See, e.g., Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) [hereinafter Brown-Nagin, Courage to Dissent]; Catherine R. Albiston, Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave (2010); Cause Lawyers and Social Movements (Austin Sarat & Stuart A. Scheingold eds., 2006); Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740 (2014); Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663 (2012) [hereinafter NeJaime, Legal Mobilization Dilemma]; Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941 (2011) [hereinafter NeJaime, Winning Through Losing]; César Rodríguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669 (2011); Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 Berkeley J. Emp. & Lab. L. 1 (2009) [hereinafter Cummings, Hemmed In]; Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. Rev. 1235 (2010); Scott L. Cummings, Law in the Labor Movement’s Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight, 95 Calif. L. Rev. 1927 (2007) [hereinafter Cummings, Wal-Mart]; Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436 (2005); Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1016 (2004); Anna-Maria Marshall, Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment, 28 Law & Soc. Inquiry 659 (2003). For further discussion of this developing field, see Scott L. Cummings, The Social Movement Turn in Law, 43 Law & Soc. Inquiry 360 (2018); Scott L. Cummings, The Puzzle of Social Movements in American Legal Theory, 64 UCLA L. Rev. 1554 (2017) [hereinafter Cummings, The Puzzle of Social Movements]; Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, 36 Fordham Urb. L.J. 603, 609-12 (2009); Steven A. Boutcher & Holly J. McCammon, Social Movements and Litigation, in The Wiley Blackwell Companion to Social Movements 306 (David A. Snow, Sarah A. Soule, Hanspeter Kriesi & Holly J. McCammon eds., 2d ed. 2019); and Sandra R. Levitsky, Law and Social Movements: Old Debates and New Directions, in The Handbook of Law and Society 382 (Austin Sarat & Patricia Ewick eds., 2015).
Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 Mich. L. Rev. 877, 879 (2013) (reviewing Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (2011)); see also McCann, supra note 2, at 78 (calling for a “synthesis” of legal and social movement scholarship).
See Hendrik Hartog, Four Fragments on Doing Legal History, or Thinking with and Against Willard Hurst, 39 Law & Hist. Rev. 835, 839 (2021) (“Any common law case, any of the chestnuts of the first year law school casebook, when examined closely, will require accounting for a history that has been forgotten or skipped over or, more likely, been taken for granted, but that is implicit in the language of the case.”); Jill Lepore, On Evidence: Proving Frye as a Matter of Law, Science, and History, 124 Yale L.J. 1092, 1141 (2015) (“Case law and case method instruction obliterate context . . . .”).
See, e.g., Christopher W. Schmidt, Divided by Law: The Sit-ins and the Role of the Courts in the Civil Rights Movement, 33 Law & Hist. Rev. 93, 113 (2015) (“The very identity of the first wave of sit-in protesters formed in opposition to court-focused approaches to civil rights.”). But see Brown-Nagin, Courage to Dissent, supra note 3, at 194-200 (arguing that some civil-rights lawyers aimed to “marry litigation and direct action,” viewing the courtroom “as a forum for extending a voice to citizens shut out of formal politics, not necessarily as an end in itself”).
See, e.g., Mark Tushnet, The Critique of Rights, 47 SMU L. Rev. 23, 30 (1993). For further discussion of these critiques, see Scott L. Cummings, Law and Social Movements: An Interdisciplinary Analysis, in Handbook of Social Movements Across Disciplines 233, 240 (Conny Roggeband & Bert Klandermans eds., 2d ed. 2017); and Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 Harv. L. Rev. 937, 939, 946-48 (2007).
See Gordon Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics 269 (2009) (arguing that while resorting to litigation can “break[] through the barriers that are a part of the American system,” it can also “kill politics” by “tak[ing] the wind out of the political sails”).
See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1365 (1988); see also id. at 1384-85 (“Rights have been . . . the means by which oppressed groups have secured . . . the survival of their movement in the face of private and state repression.”); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 405 (1987) (underscoring “the idealistic or symbolic importance of rights” for “the disenfranchised”). For further discussion of these qualified defenses of litigation and rights talk, see Cummings, The Puzzle of Social Movements, supra note 3, at 1602-03.
See, e.g., Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 212 (2021) (characterizing impact litigation as embodying “an aristocratic theory of change”); Amna A. Akbar, Sameer Ashar & Jocelyn Simonson, What Movements Do to Law, Bos. Rev. (Apr. 26, 2022), https://bostonreview.net/articles/what-movements-do-to-law [https://perma.cc/ZL94-MZQT] (critiquing “court-centered strategies for progressive social change championed by liberal elites”).
A brief definitional comment is in order. This Note embraces a capacious understanding of social movement litigation as any litigation bearing on the goals of a group “linked together by ideology, beliefs, or collective identities.” Rubin, supra note 2, at 4. It thus declines to take a narrow view of social movement litigation as limited to “impact litigation,” Boutcher & McCammon, supra note 3, at 307, or as inherently linked to the protection of “politically marginalized constituencies,” Scott L. Cummings, Movement Lawyering, 2017 U. Ill. L. Rev. 1645, 1690. Staking the outer edges of what counts as movement litigation is beyond the scope of this project, though this important question has generated rich debates among scholars and practitioners. See, e.g., Cummings, supra, at 1660-61; Catherine Albiston, Book Review, 63 J. Legal Educ. 554, 554-57 (2014) (reviewing Alan K. Chen & Scott L. Cummings, Public Interest Lawyering: A Contemporary Perspective (2013)); Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in Cause Lawyering: Political Commitments and Professional Responsibilities 3, 5 (Austin Sarat & Stuart Scheingold eds., 1998); Ann Southworth, Conservative Lawyers and the Contest over the Meaning of “Public Interest Law,” 52 UCLA L. Rev. 1223, 1224 (2005).
Cf. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1302 (1976) (describing “public law litigation” as encompassing cases against both public and private defendants in a wide range of fields, provided that they focus on “grievance[s] about the operation of public policy” rather than “dispute[s] between private individuals about private rights”).
Narrative case studies are particularly useful in sociolegal scholarship, as telling “whole stories rather than excerpts” allows one to better attend to “the details of legal practice.” McMahon & Paris, supra note 1, at 106, 108 (quoting Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence 18 (1988)). While this Note embraces the “interpretivist” case-study method, scholars have long debated the value of such research as opposed to “positivist” approaches that use broader source bases to develop generalizable theories. Compare Gerald N. Rosenberg, Positivism, Interpretivism, and the Study of Law, 21 Law & Soc. Inquiry 435, 446 (1996) (reviewing McCann, supra note 1) (arguing that interpretivist case studies lose “the ability to generalize” by “celebrat[ing] the particular over the general”), with Michael McCann, Causal Versus Constitutive Explanations (or, On the Difficulty of Being So Positive . . .), 21 Law & Soc. Inquiry 457, 472-73 (1996) (advocating for interpretivism because of its attention to the “variable, complex, indeterminate dimensions of social life”).