Changing the wind: Notes toward a demosprudence of law and social movements

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2740-2804

  Guinier, Lani ^a   Torres, Gerald ^b  

^a Law and Social Movements at Harvard ^*  (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84902771340     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. Krista Tippett, Transcript for Jim Wallis-The New Evangelical Leaders, Part I, ON BEING (Nov. 29, 2007), http://www.onbeing.org/program/new-evangelical-leaders-part-i-jim-wallis/transcript/1299.
2. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 9 (2014).
3. Id. at 8.
4. Levels of Power, POWERCUBE, http://www.powercube.net/analyse-power/levels-of-power (last visited Apr. 23, 2014). John Gaventa's power cube analysis builds on the forms, spaces, and levels of power. The forms dimension refers to the ways in which power manifests itself, including its visible, hidden, and invisible forms. The spaces dimension of the power cube refers to the potential arenas for participation and action, including what Gaventa calls closed, invited, and claimed spaces. The levels dimension of the power cube refers to the differing layers of decision-making and authority held on a vertical scale, including the local, national, and global.
5. For a definition of social movements and their distinction from interest groups, see infra pp. 2756-62. Our definition of social movements borrows from SIDNEY TARROW, POWER IN MOVEMENT: SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS 1-9 (2d ed. 1998). Contentious politics involves a repertoire of actions, discourses, and visionary goals that tell a story that (1) seizes historically contingent openings, (2) mobilizes popular will (not just in terms of polls, but also in terms of "the will to act"), (3) builds on networks of social solidarity, and (4) finds sites for narrative resistance in which to transpose/transport grievances into causes that resonate with the larger culture's narratives of justice. Contentious politics engages opponents over time and changes the meaning of law, not just its rules. Id.; see CAUSE LAWYERS AND SOCIAL MOVEMENTS (Austin Sarat & Stuart A. Scheingold eds., 2006)
6. MICHAEL MCCANN, LAW AND SOCIAL MOVEMENTS 508 (2004)
7. CHARLES TILLY & SIDNEY TARROW, CONTENTIOUS POLITICS (2007).
8. James Madison, Who Are the Best Keepers of the People's Liberties?, NAT'L GAZETTE, Dec. 20, 1792, reprinted in 6 THE WRITINGS OF JAMES MADISON, 1790-1802, at 120 (Gaillard Hunt ed., 1906), http://oll.libertyfund.org/titles/madison-the-writings-vol-6-1790-1802.
9. Frederick Douglass, Speech on the Dred Scott Decision (May 14, 1857), in TWO SPEECHES BY FREDERICK DOUGLASS 40 (Rochester, N.Y., C.P. Dewey 1857), http://www.libraryweb.org/~digitized/books/Two_Speeches_by_Frederick_Douglass.pdf
10. Frederick Douglass, Unconstitutionality of Slavery (Mar. 26, 1860), in SELECTED ADDRESSES OF FREDERICK DOUGLASS: AN AFRICAN AMERICAN HERITAGE BOOK 75, 96 (2008) ("[W]hat do we want? We want this: whereas slavery has ruled the land, now must liberty; whereas proslavery men have sat in the Supreme Court of the United States, and given the constitution a pro-slavery interpretation against its plain reading, let us by our votes put men into that Supreme Court who will decide, and who will concede that that constitution is not slavery.").
11. STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES (1980)
12. JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990).
13. Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. REV. 967 (1997).
14. Conservative critics of social justice movements fear this cultural transformation most of all. See, e.g., "A COUNTRY I DO NOT RECOGNIZE": THE LEGAL ASSAULT ON AMERICAN VALUES (Robert H. Bork ed., 2005). 11.
15. CHARLES L. BLACK, A NEW BIRTH OF FREEDOM: HUMAN RIGHTS NAMED AND UNNAMED (1997). Both of these noted constitutional scholars treat the Preamble not as surplusage, but as an integral and legally significant part of the Constitution-no throat clearing for the "Founders." When we argue for legitimate and durable social change we want to be clear that our emphasis is on change that is democracy enhancing. By democracy enhancing we mean the creation of both constituencies of accountability and alternative and authoritative interpretative communities. These interlaced changes are democracy enhancing because they give agency to those otherwise excluded or marginalized by the conventional structure of electoral politics. Democracy-enhancing social change reminds us that genuine communities of consent are what justify democracy.
16. A counterexample is the labor movement, especially during the period of the New Deal, when labor unions were able to get the attention of all three branches of government. The normal political branches were even able to discipline a reluctant Supreme Court by threatening the Court's supremacy, reflected in the "switch in time that saved nine." The neo-Lochnerianism that is current today shows, however, that without deep cultural change, no political victory is ever secure.
17. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011)
18. TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION IN AMERICA (2012).
19. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) (arguing that Brown v. Board of Education brought race issues to the public's attention but that at the same time it energized the conservative opposition)
20. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2005) (arguing that the meaning of the Constitution and its legitimacy is premised on the understanding of the people and is not subject to judicial supremacy)
21. GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (arguing that durable social change is neither produced nor sustained through litigation)
22. MARK TUSHNET, THE NAACP'S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (examining the relation between the people and their lawyers).
23. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986).
24. ROSENBERG, supra note 14.
25. KLARMAN, supra note 14.
26. ANN SOUTHWORTH, LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION (2008).
27. In another context, and in a rather flip expression of this process, the legal and corporate anthropologist Jane Anne Morris suggests that environmental regulation merely regulates environmentalists. See JANE ANNE MORRIS, GAVELING DOWN THE RABBLE: HOW "FREE TRADE" IS STEALING OUR DEMOCRACY (2008). This is why opposition to the Keystone Pipeline is more important as a mobilizing tool than as a point of judicial or legislative intervention.
28. BILL MCKIBBEN, OIL AND HONEY: THE EDUCATION OF AN UNLIKELY ACTIVIST (2013).
29. In this way, litigation, for example, may shift power to the lawyer as a technician and limit the lawyer's capacity to understand clients' demands, which are translated primarily into legal principles.
30. Ralph Bunche articulates a thick version of this argument in an article published in 1935: Extreme faith is placed in the ability of.instruments of democratic government to free the minority from social proscription and civic inequality. The inherent fallacy of this belief rests in the failure to appreciate the fact that the instruments of the state are merely the reflections of the political and economic ideology of the dominant group, that the political arm of the state cannot be divorced from its prevailing economic structure, whose servant it must inevitably be.
31. Ralph J. Bunche, A Critical Analysis of the Tactics and Program of Minority Groups, 4 J. NEGRO EDUC. 308, 315 (1935).
32. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991) (arguing that rights are a powerful symbolic message of belonging to marginalized or excluded groups).
33. CHARLES M. PAYNE, I'VE GOT THE LIGHT OF FREEDOM: THE ORGANIZING TRADITION AND THE MISSISSIPPI FREEDOM STRUGGLE 236, 236-64 (1995)
34. Francesca Polletta, The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966, 34 LAW & SOC'Y REV. 367 (2000)
35. Stoddard, supra note 10.
36. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976).
37. 27. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.").
38. We ask: does the interaction between social movements and lawmaking allow discrete and insular minorities (or groups that have otherwise been relatively voiceless) an opportunity to participate directly-rather than through surrogates-in making and interpreting the decisions that affect their lives? In particular, we contrast the demosprudential effect of constituency mobilization to the counter-majoritarian difficulties that some associate with judicial review to protect the rights of discrete and insular minorities.
39. By democracy we mean something similar to what Robert Maynard Hutchins, former president of the University of Chicago, said in a 1962 interview: "Every member of the community must have a part in his government. The real test of democracy is the extent to which everybody in the society is involved in effective political discussion." ROBERT M. HUTCHINS & JOSEPH P. LYFORD, THE POLITICAL ANIMAL: A CONVERSATION 2 (1962).
40. Jurisprudence predominantly deals with the question of the application and interpretation of the law by the judge. Legisprudence uses the tools and insights of legal theory to study legislation and regulation, i.e., the creation of law by the legislator. Julius Cohen introduced this term to describe the theoretical study of the legislative (as opposed to the judicial) aspect of legal philosophy. Julius Cohen, Legisprudence: Problems and Agenda, 11 HOFSTRA L. REV. 1163 (1983)
41. Julius Cohen, Towards Realism in Legisprudence, 59 YALE L.J. 886 (1950);
42. LUC J. WINTGENS et al., LEGISPRUDENCE: A NEW THEORETICAL APPROACH TO LEGISLATION (Luc J. Wintgens ed., 2002)
43. William N. Eskridge, Jr. & Philip P. Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. PITT. L. REV. 691, 693 (1987).
44. Eskridge & Frickey, supra note 30.
45. The word "changing" in this sentence is ambiguous, but intentionally so. We mean that you can switch the people who are in power and, as a result, empower those who are members of the mobilized opposition, or you can transform the understanding of the roles and the obligations of the people in power without actually changing the individuals who occupy the roles.
46. Michael Grinthal, Power with: Practice Models for Social Justice Lawyering, 15 U. PA. J.L. & SOC. CHANGE 25, 45 (2011). The term "contentious politics" comes from Sidney Tarrow.
47. TILLY & TARROW, supra note 6. One of us has further developed the concept of "demosprudence." Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 89 B.U. L. REV. 539 (2009)
48. Lani Guinier, The Supreme Court, 2007 Term-Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4, 40-41 (2008).
49. TOMIKO BROWN-NAGIN, THE COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THE CIVIL RIGHTS MOVEMENT (2011) (documenting the complex goals of social movements in the early civil rights period).
50. On one level, the professional commitments and responsibilities of all lawyers should be organized around their role as public citizens. For example, Preamble [6] of the Model Rules of Professional Conduct states that [a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. [A]ll lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. MODEL RULES OF PROF'L CONDUCT pmbl. [6] (2013); see also id. pmbl. [7] ("A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service."); id. pmbl. [8] ("A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious."); id. pmbl. [13] ("Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system.").
51. David Wilkins, Fragmenting Professionalism: Racial Identity and the Ideology of Bleached Out Lawyering, 5 INT'L J. LEGAL PROF. 141 (1998) (highlighting the tension between the legal norm of "bleached out professionalism" and a lawyer's social obligations).
52. William H. Simon, Visions of Practice in Legal Thought, 36 STAN. L. REV. 469 (1984).
53. Lucie E. White, To Learn and Teach: Lessons from Driefontein on Lawyering and Power, 1988 WIS. L. REV. 699.
54. Doug NeJaime, Winning Through Losing, 96 IOWA L. REV. 941 (2011) (arguing that regardless of its outcome, litigation can provide an opportunity for mobilization).
55. Catherine Albiston, The Dark Side of Litigation as a Social Movement Strategy, 96 IOWA L. REV. BULL. 61 (2011) (arguing that litigation sometimes produces demobilization).
56. Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. REV. 443 (2001)
57. Doug NeJaime & Scott Cummings, Lawyering for Marriage Equality, 57 UCLA L. REV. 1235 (2010) (analyzing various approaches to litigation on behalf of marriage equality).
58. Stephen Wexler, Practicing Law for Poor People, 79 YALE L.J. 1049, 1053 (1970) ("Poverty will not be stopped by people who are not poor. If poverty is stopped, it will be stopped by poor people. And poor people can stop poverty only if they work at it together. The lawyer who wants to serve poor people must put his skills to the task of helping poor people organize themselves.").
59. One of the ways people act out democracy is through the process of reflecting upon and learning from shared experiences. That self-reflective practice is stimulated by and often culminates in the making of new stories. These stories systematize the knowledge created by collective engagement, collective risk-taking, and collective action. These stories transform people's willingness to act when they nurture relationships, highlight the contingencies of past choices, and illuminate future possibilities.
60. Eric Lipton, Half of Congress Members are Millionaires, Report Says, N.Y. TIMES, Jan. 9, 2014, http://www.nytimes.com/2014/01/10/us/politics/more-than-half-the-members-f-congress-are-millionaires-analysis-finds.html.
61. Marshall Ganz, Organizing Notes: What Is Organizing?, HARV. KENNEDY SCH. OF GOV'T (2013), http://www.hcs.harvard.edu/summercamp/wp-content/uploads/2013/06/What-Is-Organizing-2013.pdf (arguing that the term "constituency" refers to a population that is "able to 'stand together' on behalf of common concerns")
62. John McKnight, Services Are Bad for People: You're Either a Citizen or a Client, ORGANIZING, Spring/Summer 1991, at 41. In addition, Brittny-Jade Saunders notes that [o]ften, as in the legislative context, constituents and their interests are represented by a particular advocate, policymaker, movement leader, or organization. Ideally, however, constituents are not passive recipients of these actors' largesse, but rather are active participants in the processes that shape their fortunes. Organized constituencies are capable of holding leaders accountable for their actions or omissions. They are also crucial to the vitality of social and political movements. They play a vital role both by moving-contributing ideas and inspiration that influence leaders-and by being moved-to change their ways of thinking and to take action. Scholars and practitioners of social change have distinguished between "clients" or "customers," who are made dependent on service providers, and constituents who are empowered through their relationships with other actors to exercise "voice" and exert greater influence on their social and political worlds. Big Ideas and "Boots on the Ground": Proposing a Constituency-Building Approach to the Achievement of Progressive Social Change 5 (Mar. 12, 2008) (unpublished student paper, Harvard Law School) (on file with authors).
63. As Professor Ackerman demonstrates, the racial transformation of the broader American culture was not done in a single stroke, but in multiple attacks on racialized power however it was manifested: school segregation, housing discrimination, voting access and equality, intimate unions (as in Loving v. Virginia, 388 U.S. 1 (1967)), and employment.
64. Litigation is an essential tactic for social movements. However, litigators too often use state power in service of a principle rather than using principle in service of resistance to state power or other concentrations of power that undermine democracy. Causes are adjudicated into grievances; constituencies of accountability are demobilized. Litigation, especially highstakes litigation, often produces both mobilization and backlash in some measure. This is especially true in a political culture like ours where law is understood to mediate profoundly different cultures through a universalizing discourse. This universalizing process is especially complex where law is presumed to perform that function largely through the dynamic of neutrality (whether this is expressed through the language of rights or through the institutional limitations on the exercise of state power).
65. TUSHNET, supra note 14, at 138-66.
66. Michael W. McCann, Reform Litigation on Trial, 17 LAW & SOC. INQUIRY 715, 715-16, 729-43 (1992) (reviewing ROSENBERG, supra note 14) (arguing that impact litigation may be more effective at provoking change than some critics suggest and discussing "top-down" versus "bottom-up" approaches, as well as "court-centered" versus "dispute-centered" analyses). Thus, our critique of litigation, which we shall develop further in the context of both the civil rights and farmworkers movements, is based on the failure of many cause lawyers to formulate their strategy in conjunction with cycles of mobilization.
67. Michael McCann, Law and Social Movements, in THE BLACKWELL COMPANION TO LAW AND SOCIETY 506, 509 (Austin Sarat ed., 2004).
68. TILLY & TARROW, supra note 6, at 4. Sidney Tarrow defines social movements as consisting of four elements: (1) collective challenges, based on (2) common purposes and (3) social solidarity in (4) sustained interaction with elites, opponents, and authorities. Social movements are "groups possessing a purposive organization, whose leaders identify their goals with the preferences of an unmobilized constituency which they attempt to mobilize in direct action in relation to a target of influence in the political system."
69. McCann, supra note 50, at 509.
70. Robert M. Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 19 (1983).
71. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007)
72. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006).
73. Our reference to the women's suffrage movement in the late nineteenth and early twentieth centuries as a movement of a "minority" does not, of course, ignore the numerical percentage of women; it merely cabins the movement to a subset of women and their male supporters in gaining women the right to vote.
74. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 843 (1992) ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned." (citing Roe v. Wade, 410 U.S. 113 (1973))); Jeremy Waldron, Stare Decisis and the Rule of Law: A Layered Approach, 111 MICH. L. REV. 1 (2012). Yet even this central obligation is currently contested. See, e.g., Jeffrey Toobin, Clarence Thomas's Disgraceful Silence, NEW YORKER: DAILY COMMENT (Feb. 21, 2014), http://www.newyorker.com/online/blogs/comment/2014/02/clarence-thomas-disgraceful-silence.html; Editorial, Clarence Thomas's Brand of Judicial Logic, N.Y. TIMES, Oct. 22, 2011, http://www.nytimes.com/2011/10/23/opinion/sunday/clarence-thomass-brand-of-judicial-logic.html.
75. Of course, this is only one definition of "rights," but it is an attempt to capture the social content of rights rather than just the individual experience of having a "right." We are using "rights" as a non-legal expert might understand them. By "social content," we mean the shared understanding of what might conventionally, by legal experts, be described as Hohfeldian categories. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1916).
76. For a definition of culture shifting, see Stoddard, supra note 10 (arguing that culture shifting changes widely shared norms and commitments, while rule shifting, by contrast, changes the rules but does not necessarily assure enforcement of, or respect for, those rules).
77. JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS (2007) (describing the potential derived from the intersection of immigrant workers and union organizing, particularly non-traditional forms of organization)
78. Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 HARV. C.R.-C.L. L. REV. 407, 407-10, 428-45 (1995).
79. Elizabeth Beaumont, Reviving the Republican Face of Constitutional Rights: Abolition as a Constitutional Project 10 (2008) (unpublished manuscript), http://www.polisci.umn.edu/assets/pdf/Beaumont-PTColloq10-08.pdf. Beaumont calls this process "public guardianship." Id. at 1. According to Beaumont, "We, the People," have, can, and should engage in immanent criticism, which exposes constitutional contradictions, paradoxes, failures, or hypocrisy by pointing to conflicts between existing constitutional principles or practices; creative reimagination, which offers new understandings of constitutional rights, principles, and structure; and reinvention, reconstruction, or refounding, which tries to implement, institutionalize, ratify, or otherwise set in political motion a new framework of rights and constitutionalism. Beaumont then offers an in-depth study of abolition within its historical context as an example of "public guardianship." However, the change-making capacity of mobilized constituencies is not restricted to the actions of legal citizens, as demonstrated by Jennifer Gordon's use of the term "non-citizen citizens." GORDON, supra note 60, at 237.
80. Martin Luther King, Jr., Address to First Montgomery Improvement Association (MIA) Mass Meeting (Dec. 5, 1955), http://mlk-kpp01.stanford.edu/kingweb/publications/speeches/MIA_mass_meeting_at_holt_street.html.
81. Gerald Torres & Lani Guinier, The Constitutional Imaginary: Just Stories About We the People, 71 MD. L. REV. 1052, 1064-66 (2012) (providing a longer critique of framework originalism in JACK BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011)).
82. This is how Fannie Lou Hamer reportedly responded to the Democratic National Committee's offer of two seats to the Mississippi Freedom Democratic Party at the 1964 Democratic National Convention. See Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1414 (1991).
83. PAYNE, supra note 24, at 321.
84. FANNIE LOU HAMER, TO PRAISE OUR BRIDGES: AN AUTOBIOGRAPHY (1967), excerpted in THE EYES ON THE PRIZE CIVIL RIGHTS READER: DOCUMENTS, SPEECHES, AND FIRSTHAND ACCOUNTS FROM THE BLACK FREEDOM STRUGGLE 176, 178-79 (Clayborne Carson et al. eds., 1991).
85. JOHN DITTMER, LOCAL PEOPLE: THE STRUGGLE FOR CIVIL RIGHTS IN MISSISSIPPI 5 (1994).
86. PATRICIA SULLIVAN, LIFT EVERY VOICE: THE NAACP AND THE MAKING OF THE CIVIL RIGHTS MOVEMENT 318 (2009).
87. THE EYES ON THE PRIZE CIVIL RIGHTS READER, supra note 67, at 69.
88. Gerald M. Stern, Mississippi, in OUTSIDE THE LAW: NARRATIVES ON JUSTICE IN AMERICA 164 (Susan Richards Shreve & Porter Shreve eds., 1997).
89. John Hardy was "a young black college student from Nashville, Tennessee," who, "along with some other students, set up a voter registration school" in the county. Every evening for three weeks they taught Walthall County residents "how to fill out registration forms and explain[ed] sections of the Mississippi Constitution. Hardy accompanied the first five blacks" in their attempt to register in a county without one black registered voter. They "were rejected, as were the [next] three who tried." Id. at 164.
90. DITTMER, supra note 69, at 237. Bob Moses, Aaron Henry, and David Dennis wrote to President Johnson, requesting a meeting on June 18 or 19 to "discuss preparations for the summer." The first group of summer volunteers also wrote an impassioned plea to the President on June 17, asking, "as we depart for that troubled state, to hear your voice in support of those principles to which Americans have dedicated and sacrificed themselves since our country's founding." President Johnson did not respond.
91. THE EYES ON THE PRIZE CIVIL RIGHTS READER, supra note 67, at 82.
92. DITTMER, supra note 69, at 137.
93. PAYNE, supra note 24, at 154.
94. THE EYES ON THE PRIZE CIVIL RIGHTS READER, supra note 67, at 83.
95. Fannie Lou Hamer, Testimony Before the Credentials Committee, Democratic National Convention (Aug. 22, 1964), in SAY IT PLAIN: A CENTURY OF GREAT AFRICAN AMERICAN SPEECHES 49, 51 (Catherine Ellis & Stephen Drury Smith eds., 2007) [hereinafter Hamer Testimony].
96. PAYNE, supra note 24, at 155.
97. THE EYES ON THE PRIZE CIVIL RIGHTS READER, supra note 67, at 78.
98. Hamer Testimony, supra note 85, at 53.
99. DITTMER, supra note 69, at 72.
100. PAYNE, supra note 24, at 242. Jackall was quite taken by Hamer's "ennobling vision of racial harmony and of personal redemption for those who seek it." Id.
101. DITTMER, supra note 69, at 299.
102. Jack Hitt, Party Crasher, N.Y. TIMES MAG., Dec. 31, 2006, http://www.nytimes.com/2006/12/31/magazine/31gray.t.html.
103. Polletta, supra note 24, at 395
104. Eyes on the Prize: America's Civil Rights Movement 1954-1985: Mississippi: Is this America? (1962-1964), PBS (Aug. 23, 2006), http://www.pbs.org/wgbh/amex/eyesontheprize/about/pt_105.html.
105. TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS 1963-65, at 474 (1998).
106. DITTMER, supra note 69, at 281.
107. BRANCH, supra note 97, at 462.
108. Eyes on the Prize: America's Civil Rights Years: Episode 5 (PBS television broadcast 1987).
109. Rauh and King were able to sit with the probable vice-presidential nominee. Rauh vulgarly characterized the actions of Humphrey's staff, but he seemed to believe that the only difficulty with the compromise was that the DNC rather than the MFDP prematurely chose the two at-large delegates. See BRANCH, supra note 97, at 470.
110. DITTMER, supra note 69, at 294-95.
111. BRANCH, supra note 97, at 470.
112. DITTMER, supra note 69, at 300.
113. BRANCH, supra note 97, at 472, 613.
114. Polletta, supra note 24, at 395.
115. Andrew Young captured the movement's middle class orientation: The primary battle in the 1950s and 1960s was to right the wrongs against a population that was already qualified and middle class, but was still denied the basic right to public accommodations in America. We set out to break down the color barriers for those who were exceptionally well qualified, and we succeeded. Andrew Young, Foreword to GARY ORFIELD & CAROLE ASHKINAZE, THE CLOSING DOOR:
116. CONSERVATIVE POLICY AND BLACK OPPORTUNITY, at ix (1991).
117. Michael Froomkin, Climbing the Most Dangerous Branch: Legisprudence and the New Legal Process, 66 TEX. L. REV. 1071, 1073-74 (1988) (book review) (citing Eskridge and Frickey's adaptation of Hanna Pitkin's three metaphors for representational theory).
118. The image of Rosa Parks refusing to give up her seat is another example of a resonant frame. See infra Part II.
119. Of course, the Voting Rights Act has to be understood, to some extent, as an attempt by those in power to legitimate their continuing exercise of power.
120. Jimmie Lee Jackson was shot on February 18, 1964, protecting his mother during a night vigil to try to secure a right to vote six months after the Democratic National Convention.
121. In a democracy there are a number of interpretive communities with some claim to authority that can play a role in influencing the construction of social norms and which provide a narrative framework for understanding social life, upon which law must operate. One of the ways these communities do this is by creating and enacting stories of justice. In some ways the distinction between Brown and the Montgomery Bus Boycott is about the origin of the story-does it come from the courts or from the people?
122. TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954-63, at 139-41 (1988).
123. Women played an important part in the mobilization and in the material support that enabled the boycott to succeed. JoAnne Grant, for example, used her access to a mimeograph machine at the local college to produce flyers and handbills that helped publicize the initial mass meeting and had an important impact on turnout for the first day of the boycott. The existence of the handbills and flyers were evidence of organization and a message to the black people of Montgomery that they were not alone.
124. BRANCH, supra note 121, at 145.
125. As Charles Payne noted, "Mixtures of the sacred and the profane, the mass meetings could be a very powerful social ritual. [P]eople helped make new definitions of their individual and collective selves real." PAYNE, supra note 24, at 263. Moreover, [m]ass meetings, which had the overall tone and structure of a church service, were grounded in the religious traditions and the esthetic sensibilities of the Black South. If the drudgery of canvassing accounted for much of an organizer's time on a day-to-day basis, mass meetings, when they were good, were a part of the payoff, emotionally and politically.
126. BRANCH, supra note 121, at 131-35.
127. Although Gray made clear his desire to directly challenge segregated busing with a federal suit, he did not press the issue further with the MIA; he began quietly exploring the option with NAACP lawyers in New York and with other attorneys in Alabama to be ready to deploy a lawsuit if necessary
128. William Simon, Visions of Practice in Legal Thought, 36 STAN. L. REV. 469, 487 (1984).
129. BRANCH, supra note 121, at 158-59. Once it became clear that the MIA's relatively moderate negotiation strategy would not penetrate the obstinate city councilors, the MIA board discussed an alternative tactic of a black-owned bus line in addition to their "ultimate weapon" of a federal suit against bus segregation
130. Gray moonlighted on weekends as a preacher in Montgomery. Despite Gray's interest in NAACP-style impact litigation, he understood that he "represented" the MIA and not simply the named plaintiffs he recruited for a class action lawsuit.
131. ALDON MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT: BLACK COMMUNITIES ORGANIZING FOR CHANGE 54 (1984).
132. MORRIS, supra note 132, at 56.
133. As a Brooklyn chapter NAACP leader wrote King: "Thousands of people, Negro and White, are working behind the lines to help you who are carrying on the fight on the front lines."
134. BRANCH, supra note 121, at 188.
135. BRANCH, supra note 121, at 164 (recounting Mother Pollard's public reassurance to King that he was not alone).
136. FRED GRAY, BUS RIDE TO JUSTICE: CHANGING THE SYSTEM BY THE SYSTEM (1994).
137. Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999 (1989). Of course, according to some observers, legal victories by these outsiders can spark political backlash even as they inspire and energize popular mobilization. See, e.g., Klarman, supra note 14; see also BROWN-NAGIN, supra note 34 (discussing the 1960s student sit-ins in Atlanta).
138. Robert Jerome Glennon, The Role of Law in the Civil Rights Movement: The Montgomery Bus Boycott, 1955-1957, 9 LAW & HIST. REV. 59, 94-97 (1991).
139. SIDNEY TARROW, POWER IN MOVEMENT: SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS 4 (1998) (describing social movements as (1) collective challenges, based on (2) common purposes and (3) social solidarity in (4) sustained interaction with elites, opponents, and authorities).
140. BRANCH, supra note 121, at 195.
141. Glennon, supra note 139, at 96-97.
142. The very nature of legal education makes it hard to gain this perspective in law school. The technique of inquiry in law schools involves the close examination of individual opinions written by appellate judges about individual disputes, where the only facts that matter are those deemed legally relevant to the result the court reaches. The raw material of the appellate opinion is a very selective statement of the actual events that motivated the dispute that resulted in a lawsuit. It is as though the social facts are stripped away so that the merest silhouette of reality becomes its definition for the purposes of "law."
143. Neither King nor Rosa Parks alone desegregated the buses. The success of the boycott depended on the ability of leaders like King and the network of community activists to maintain an alternative source of popular information, which permitted him and the MIA to quickly counter the false claims that were about to be published in the Sunday edition of the Montgomery Advertiser that the boycott was over. The leaders of the boycott fanned out to the black clubs, churches, house parties, and other places black people might be gathering on a Saturday night to bring them the truth about the boycott.
144. GORDON, supra note 60 (describing a process by which undocumented workers came to her legal clinic full of outrage because of dignitary harms suffered for which there was no legal remedy, and how, nevertheless, resolving the things that the law could control gave them a sense of agency and dignity-a path out of the morass-even if it did not directly address their outrage).
145. LAUREN ARAIZA, TO MARCH FOR OTHERS: THE BLACK FREEDOM STRUGGLES AND THE UNITED FARM WORKERS (2013).
146. MARSHALL GANZ, WHY DAVID SOMETIMES WINS: LEADERSHIP, ORGANIZATION, AND STRATEGY IN THE CALIFORNIA FARM WORKER MOVEMENT 117-18 (2009).
147. HARRY J. ELAM, TAKING IT TO THE STREETS: THE SOCIAL PROTEST THEATER OF LUIS VALDEZ AND AMIRI BARAKA 3 (1997).
148. Voces Vivas, Luis Valdez-Founder "El Teatro Campesino," YOUTUBE (Oct. 21, 2011), http://www.youtube.com/watch?v=XdeIwysKwJM.
149. Max Benavidez, The Fight in the Fields, PBS, http://www.pbs.org/itvs/fightfields/book3.html (last visited Mar. 24, 2014).
150. Beth Bagby, El Teatro Campesino: Interviews with Luis Valdez, 11 TULANE DRAMA R. 70, 74-75 (1967).
151. Benavidez, supra note 153.
152. ELAM, supra note 150, at 3.
153. YOLANDA BROYLES-GONZÁLEZ, EL TEATRO CAMPESINO: THEATER IN THE CHICANO MOVEMENT 25 (1994).
154. BROYLES-GONZÁLEZ, supra note 160, at 7 (quoting Luis Miguel Valdez, Theatre: El Teatro Campesino, RAMPARTS, July 1966, at 55, 55).
155. Bagby, supra note 157, at 77.
156. BROYLES-GONZÁLEZ, supra note 160, at 11.
157. Bagby, supra note 157, at 79. Huelga means "strike" in Spanish.
158. BROYLES-GONZÁLEZ, supra note 160, at 3.
159. RANDY SHAW, BEYOND THE FIELDS: CESAR CHAVEZ, THE UFW, AND THE STRUGGLE FOR JUSTICE IN THE 21ST CENTURY 277 (2008).
160. JORGE A. HUERTA, CHICANO THEATER: THEMES AND FORMS 12 (1982).
161. Shaw, supra note 176, at 278.
162. HUERTA, supra note 178, at 16.
163. ELAM, supra note 150, at 100.
164. Bagby, supra note 157, at 78.
165. HUERTA, supra note 178, at 16.
166. BROYLES-GONZÁLEZ, supra note 160, at 22.
167. ELAM, supra note 150, at 11.
168. HUERTA, supra note 178, at 18.
169. Bagby, supra note 157, at 76.
170. HUERTA, supra note 178, at 19.
171. ELAM, supra note 150, at 38.
172. HUERTA, supra note 178, at 19.
173. ELAM, supra note 150, at 40.
174. HUERTA, supra note 178, at 22.
175. ELAM, supra note 150, at 42 (citing GUILLERMO E. HERNÁNDEZ, CHICANO SATIRE: A STUDY IN LITERARY CULTURE 36 (1991)).
176. Benavidez, supra note 153.
177. GANZ, supra note 148, at 253.
178. MATTHEW GARCIA, FROM THE JAWS OF VICTORY: THE TRIUMPH AND TRAGEDY OF CESAR CHAVEZ AND THE FARM WORKER MOVEMENT (2012).
179. Polletta, supra note 24, at 398.
180. For a definition of cause lawyers as political actors whose work involves doing law, who use their legal skills to pursue ends and ideals that transcend client service, and who are involved in a professional project to provide a public good, but who are also not the same as public interest lawyers, see STUART A. SCHEINGOLD & AUSTIN SARAT, SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING 1-22 (2004). Scheingold & Sarat argue that the cause lawyer fits within the legal profession's mainstream discourse of lawyering as a public good. They attempt to justify the cause lawyer's role in a democracy, by distinguishing between political and rule-of-law cause lawyers. [Political] cause lawyers, in effect, declare their solidarity with their clients and the causes they jointly pursue. Conversely, rule-of-law cause lawyers tend to identify with rights, legality, and constitutionality as ends in themselves. For the politically engaged cause lawyer, both the client and the law are treated as means rather than ends. For the legally engaged cause lawyer, legality is, in effect, the cause. We use the term cause lawyer to refer both to political and rule of law lawyers.
181. Stoddard, supra note 10. We are particularly interested in mobilizations (or collective action) that share three elements: (1) they are premised on a set of beliefs about the future, or how things might be (based on a normative vision), (2) their stories of the future contain the motivation for acting, and (3) their actions express the moral of the story. Our interest includes collective mobilizations, from the right as well as from the left, that share in common an abiding commitment to mass mobilization over time to transform culture, economic or social arrangements, and/or institutions. Electoral campaigns, litigation to yield a singular judicial victory, and legislative strategies may be tactics deployed by a social movement, but they alone do not signal the existence of a social movement.
182. Adam Liptak, Brown v. Board of Education, Second Round, N.Y. TIMES, Dec. 10, 2006, http://www.nytimes.com/2006/12/10/weekinreview/10liptak.html.
183. Polletta, supra note 24, at 379. Polletta describes the importance of the black church in "nurturing counterhegemonic challenges" and preserving alternative normative frameworks. By emphasizing and pushing the black church's social gospel mission, civil rights activists were able to foster cultural challenges that "promoted the compatibility of religious and legal idioms."
184. By raising its collective voice, the community's music can change its own understanding of what it is capable of and what organized power can do. Such a dynamic constituency builds from a shared identity by developing a structure (rituals, commitments, leadership) for sustaining that identity and naming things that they understand to be true (the ideology/epistemology divide).
185. ROSENBERG, supra note 14
186. Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436 (2005)
187. Michael Grinthal, Lawyers and Relational Organizing 23 (May 15, 2006) (unpublished manuscript) (on file with authors) (describing the way litigation over rights can define claimants by their weakness and their need for state intervention).
188. Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92 (2004) (explaining that one of the conflicts within the strategy to desegregate the South was how to eliminate the bad effects of race while keeping the good effects of race).
189. Austin Sarat calls the difference between concrete objectives and long-term intangible outcomes "first" and "second" generational change. Telephone Interview with Austin Sarat (Nov. 30, 2006). There is a chronological distinction in time-sensitive terms; he also intends to draw attention to the difference between tangible change and intangible change. Id. Thomas Stoddard terms this "rule-shifting" versus "culture shifting." See Stoddard, supra note 10, at 973.
190. Ann Southworth, Professional Identity and Political Commitment Among Lawyers for Conservative Causes, in THE WORLDS CAUSE LAWYERS MAKE: TRUCTURE AND AGENCY IN LEGAL PRACTICE 83 (Austin Sarat & Stuart Scheingold eds., 2005).
191. There is a growing body of legal scholarship on this subject, much of it coming out of Yale Law School. See, e.g., KLARMAN, supra note 14
192. Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006)
193. Brown-Nagin, supra note 241
194. Kenneth W. Mack, Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, 115 YALE L.J. 256 (2005)
195. Robert Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4 (2003)
196. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470 (2004)
197. Reva B. Siegel, Text in Context: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297 (2001)
198. William N. Eskridge, Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419 (2001)
199. William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002)
200. Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 U. PA. L. REV. 1 (2001). But cf. Lucas Powe, Are "the People" Missing in Action (and Should Anyone Care)?, 83 TEX. L. REV. 855 (2005) (reviewing KRAMER, supra note 14). During the 1980s and 1990s there was also an energetic set of conversations about the relationship between law, litigation, and social change. The critical legal studies movement devoted substantial attention to a critique of rights, especially those that direct claimants' attention to social change through litigation. Much of the earlier work, however, focused specifically on the work of litigators and courts. Some scholars have also put the genre of "legisprudence" on the table. See, e.g., Robin West, Katrina, the Constitution, and the Legal Question Doctrine, 81 CHI.-KENT L. REV. 1127, 1170 (2006). The newer scholarship has broadened the conversation to include the work of non-legal actors, as well. Our particular focus, however, is on the dynamic relationship between lawmaking and meaning making, in which meaning making originates and takes hold at the grassroots level not just in the courts or legislature.
201. For example, conservative lawyers, funders, and activists who joined to animate, narrate, and authorize fundamental legal change in the last quarter of the twentieth century studied the careful, sequential litigation strategy of the NAACP in the 1940s and 1950s to overturn Plessy v. Ferguson. Their strategy slowly evolved in response to what they learned as they waged their battles against liberal judges, liberal media, and "lazy" poor people (generally of color). See Southworth, supra note 243; see also Kimberly Liu, The Role of Litigation Movement for Education Reform: A Case Study of the Milwaukee Voucher Campaign (2007) (unpublished student paper, Harvard Law School) (on file with authors). Adapting what they had learned, conservatives built a strategy that abandoned the explicitly racist or sexist appeals of the past and instead use sophisticated yet resonant rhetoric to tell a story about the American Dream under siege. Fighting for individual opportunity, family values, and the legitimate rewards of hard work, their core constituency mobilized to push back and overturn iconic decisions, chipping away at their legal as well as popular rationale (as in Roe v. Wade, 410 U.S. 113 (1973)) or co-opting arguments for equality through a form of national amnesia (as in Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007)). The courts, working in tandem with citizen initiatives, such as the Michigan Civil Rights Initiative that passed in 2006, continue to redefine the meaning of conventional civil rights, feminist, and labor victories. See Schuette v. Coal. to Defend Affirmative Action, 2014 WL 1577512 (U.S. 2014). One of the big lessons from the successes of conservative change agents is that legal as well as social changes take place on street corners and around kitchen tables, not just inside courthouses or legislatures.
202. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976).
203. KRAMER, supra note 14
204. William E. Forbath, Popular Constitutionalism in the Twentieth Century: Reflections on the Dark Side, the Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in Popular Understandings of Popular Self-Rule, 81 CHI.-KENT L. REV. 967 (2006).
205. Part of the object of our investigation is to map the intersections of these various communities. Generalizable meaning occurs at the intersections, and law crosses a variety of authoritative interpretive communities, pulling meaning from these various communities. These communities, however, are dynamic and thus put legal meaning under a continuous flux of varying intensities. One way that this flux is mediated is through the interaction of law, lawyers, and social movements.