Describe two causes and two outcomes of “social movement litigation.” Do you think litigation is a viable strategy for social movements?
Week 11: Courts and Society
Describe two causes and two outcomes of “social movement litigation.” Do you think litigation is a viable strategy for social movements?
Constitutional Law (Powers): Spring 2020 
Rights consciousness is discussed as a cause of social movement litigation. As the authors mention, in very social movements, such as the civil rights movement, it’s almost necessary that the collective come together to develop a “shared group consciousness”. This ability then allows them to see their “disadvantaged social identities” in relation with their basic rights (or in violation of). This reminds me of discussions I’ve had about the women’s movement, intersectionality, multiple jeopardy, etc., in which groups have to find their common ground in order to figure out how their individual rights are being violated (or develop a legal rights consciousness), despite the overarching differences they may have.
Another cause of social movement litigation (almost in conjunction with rights consciousness) is having an accompaniment of organizational and legal resources. The ability to go to court is heavily supported by the ability to secure “crucial support” in terms of finances, broad grassroots support, etc.
The most obvious outcomes/impacts seem to be that 1) social movement litigation simply won’t have an important impact and 2) social movement litigation can matter in certain circumstances. For the first, it seems that the wealthy will come out as “repeat players” in a system that is very litigious. For me, this sort of goes along with the “judicial attitudes” reasoning in that if wealthy people can team up with judges/lawyers that have similar ideological preferences, well then you won’t see any major impacts (because the decisions simply won’t match up with activists). Of course, this can work the other way around as well so it makes sense for both points. As far as another supporting point, we should consider the broad social and political context in which the situation at hand finds itself in. They give the example of the Supreme Court in the 1970s weighing Congress’ stance on the ERA in their consideration of women’s rights cases.
I do believe that litigation can be a viable strategy for social movements, but I’m not sure it can be consistently effective. We live in a very litigious society and a very disproportionate/segregated society in that very few have massive amounts of wealth (Ok, Bernie, I get it) and a lot don’t. In my very negative outlook, I find that equating to very few victories and a lot of losses. Change will happen over time inevitably (hey, same-sex marriage!), but I feel that those significant changes will better blossom outside of a court and with the public instead. It seems that the general public (the majority) has to speak up before a court can efficiently hear them.
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Excellent, Daniela – thanks! It might be worth pausing on your first point about “rights consciousness” and thinking about where that comes from, whether everyone grasps it, what it limits might be.
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In my opinion, litigation is one of the best ways to achieve any goal. Social change is not an exception to it.
As from what I understood the two causes of social movement litigation are at first, group legal consciousness. Supposably people have to be able to understand exactly what privilege or right they are being deprived of and such deprivation must be relevant to law. They have to be conscious as a group that they are being deprived of a certain right. Secondly, an individual’s legal consciosness which is often referred to as “the myth of rights.” Every person believes that he/she is entitled to some rights under his/her government. Some people believe that one or another act is unjust towards them. They unite, rebel, and seek legal representation for their rights. Two important outcomes of social movement litigation are influences on judicial opinion and future cases, and influence on political and public opinions which nevertheless means legislation of new laws.
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According to McCammon and McGrath there are multiple causes for social movement litigation. This includes the development of a “rights” consciousness and the emergence of political opportunities. In order for a rights consciousness to develop the people in the movement must believe that their grievances are a violation of their basic rights. There also needs to be a belief in the myth of rights, which acknowledges the dominance of legal institutions. This cause is limited in the sense that different groups may have differing views on what “basic” rights are. Political opportunities like America’s federal system may prompt social movements to pursue federal litigation. Since every state can enforce their own rules on issues like gay rights, social movements may find it more successful if they go to a federal court and attempt to set a federal standard. The outcomes of social movement litigation is quite varied and includes future legal opportunities and legal strategy. In order for future social movement success, existing laws or court decisions can facilitate future movements with greater demands. One such legal strategy includes legal framing, which allows the movement to define the problem and frame the solution as they wish. This tactic can increase the likelihood of success, if for example they frame the movement’s goals as broad and inclusive. The use of litigation in social movements is a great strategy to advance the movement’s goals, but it can’t be the end goal. It’s a great step, especially if the movement is able to ensure a victory. A court victory can bring momentum to the movement and be used to pressure our elected officials to take legislative actions.
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Excellent, Pablo. I particularly like your nuanced conclusion: “The use of litigation in social movements is a great strategy to advance the movement’s goals, but it can’t be the end goal. It’s a great step, especially if the movement is able to ensure a victory. A court victory can bring momentum to the movement and be used to pressure our elected officials to take legislative actions.”
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Social movement litigation uses the law to bring cases to court in the hopes to bring social change through activists, groups, and legal people to test cases in court. One of the causes of social movement litigation is the fact that these people develop consciousness where they express their grievances as a violation of their individual rights, such as during the Civil Rights movement, Brown v. Board of Education to advanced human rights. Another reason for social movement litigation is to influence judicial activism and change opinions as well as obtain political opportunities to have political systems provide and shape strategies and tactics that movements use and legal opportunities to access legal institutions, judges, and jury members opinions to determine whether rights claims of collective actors will be acknowledged under the law. The two outcomes of social movement litigation could influence social policy and bring change while in another perspective, it may have minimal impact since it always favored the rich and powerful. I think litigation is a viable strategy because when a movement garners wide attention and is constantly tested in courts, judges will eventually reverse/amend their decisions. It does not always favor the rich and powerful especially if activists in the public sector worked on behalf of those who do not have much resources/rights and have succeeded.
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One of the causes of “social movement litigation” is rights consciousness. This is when people recognize that the issues they are going through are in violation of their rights and that they have the possibility of the law protecting them. Another cause is people’s access to organizational resources. People have organizational resources when they have the ability to act on the fact that their rights are being violated by turning their issues into collective action. Organizational and legal resources usually accompany collective actors to result in legal mobilization.
One of the outcomes of social movement litigation is legal opportunity. Social movement litigation creates legal precedent that shapes future judicial rulings regarding similar issues. It can create legal change and legal opportunity for others. Another outcome is influences on social movements themselves. Litigation has influence on social movements as a whole. Sometimes legal jargon or the case’s specificity can make the movement feel disconnected from the case. Other times litigation can create public awareness and education on certain matters such as discrimination against members of the LGBT community. It can also create awareness of the organization or movement itself, increasing its power as it increases its numbers.
Litigation is a viable strategy for social movements. A lot of the time, legal opinions follow the public opinions of society. Once more people began believing that African Americans should have the same rights as white people, the legal system and many legal decisions changed to reflect that. However, there is opposition to every movement. Though many people may believe in something, there will be other people who either will be against it or won’t care as long as they feel they are benefitting from the situation. If there is no law in place, there will be people who exploit situations even if it is generally agreed upon that they shouldn’t. When social movements bring forward a legal issue, case law can be created that can prevent people from exploiting issues because now there is something legal stopping them from doing so. Even if the judge does not rule in their favor, publicity can increase public awareness, education, and support for social movements. This makes litigation a viable and important strategy for social movements.
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two causes for social movement litigation:
1. When “collective actors” get together and begin discussing grievances that they discover are shared in their injustice and in violation of their fundamental rights, is able to target an incentive to mobilize the law. In this process however, they must be able to “interpret their collective grievances as a problem relevant to the categories of law” (129).
2. Political opportunities are very useful with working in tandem with collective actors using the law to mobilize. Systems of politics that are in place provide these collective actors “provide opportunities and constraints that help
shape the type of strategies and tactics that movement organizations utilize” (149).
two outcomes:
There are two types of outcomes. The first is the perspective that litigation is only beneficial and successful for the wealthy, “whose resources allow them to be “repeat players,” presumably leaving little
room for activist legal success” (132).
2.A second outcome is the idea that litigation works in this model when there is a change in society. “Social movement groups can
only succeed in court when broad cultural change is already taking place” (132). The example used is Roe v Wade when the decision was made because many states were already liberalizing and conducting abortions.
Do you think litigation is a viable strategy for social movements?
I tend to agree with the second outcome. I think litigation is only viable when there is a cultural change in society happening. The best example I can give of this is the civil rights movement. Much of the laws, and litigation took place after cultural changes such as Jim Crow, the 14th amendment etc., Unless there is a shift in society particularly in its culture, then political changes will take place effectively through litigation.
m.jenniferbernard@gmail.com
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Excellent, Jennifer – thanks
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One cause is rights consciousness, in that individuals and groups are able to conceptualize their disadvantages as a violation of rights. This principle is founded upon the myth of rights that emphasizes litigation’s effectiveness for social change. With organizational resources and an understanding of legal institutions’ dominance, people use rights consciousness as a step to effective litigation. Political opportunity is also a cause as it understands that political systems provide assistance in movements. Having supportive political systems with political elites and traditions that support the movements’ mission can encourage members to pursue litigation, but non-supportive political systems can do likewise because members will view the courts as more effective for change. Regardless, political systems are an inevitable aspect of social movements. Legal strategy is an outcome for social movement litigation as they have to “strategically develop their legal expertise.” The strategies legally frame and mobilize support for their movement. However, the focus on the legal system can provide complexity and barriers for others in the movement, so legal advocates can become isolated from the movement and represent the full-scope of the movement.
I think litigation is a viable strategy as it brings social movements at the forefront of American consciousness and validity. Courts give issues validity. Activists consult legal experts and use a language of legal rights to create their legitimacy and after they win a case, they also have institutional backing (such as precedent) for their issues from the courts. Legal institutions are inarguably a dominant part of our cultural, historical, and political fabric that it makes sense why people look to these institutions to evoke greater change. I think that recognizing social movement litigation is also recognizing the pervasiveness of political and legal systems in affecting our daily lives.
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Social movement litigation, the act of mobilizing the law so that one may bring about social change in their favor. There are several underlying causes for the efforts, some of them being political and legal opportunites. Despite the political question doctrine, social movements ironically utilize political opportunities that help them ease their way into legal action. Politicians use their influence to spark legal mobilization, essentially transforming courts into an arena where actvisits battle their cards for change. In the case for legal opportunities, the framework of the cause is similar, but instead their strategy is going to legal elites and institutions to support their agenda. The outcomes of social movement litigation vary, and can go different ways depending on various factors. One of the outcomes is the establishment of legal precedents, which build platforms and contribute in the long-run to future litigation success. Another of the outcomes is influences on social movements themselves. Win or lose, legal mobilization has its pros and cons, some being that it may affect the solidarity within a group negatively, increase publicity or even public education of legal matters. But is litigation a reliable enough plan of action for social movements? I feel that despite the outcomes of a legal decision, its influence holds no long-lasting impact in comparision to how a culutral shift brings about social change. Rosenberg’s concept of legal decisions simply echoing changes well underway in larger society…social movement groups can only succeed in court when broad cultural change is already taking place” is very much relevant to this day. Social movements achieve a fair amount of positive benefits with litigation in certain circumstances. A social movmement addressing for change that falls into the interest of legal and political figures, as well as lining up with cultural shifts will ultimately be favorable of litigation as a strategy, but for other grassroots social movements lacking the causes, it is a very much futile plan.
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Thanks, Justin – a healthy skepticism here: “A social movement addressing for change that falls into the interest of legal and political figures, as well as lining up with cultural shifts will ultimately be favorable of litigation as a strategy, but for other grassroots social movements lacking the causes, it is a very much futile plan”
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One cause of the social movement litigation is rights consciousness which occurs when individuals determine their issues stem from violations or lack of rights. Although this is stemmed from the concept of individual rights, actors will seek a collective group that shares the same grievances and believe it can be remedied by legal work. This goes hand in hand with organizational resources which transforms collective issues into action via leadership and grassroots support to move it forward. Organizational resources create structures to “allow activists to turn to legal mobilization.” Litigation is an ideal way to mobilize, grassroots movements have always represented marginalized communities and pushed forward political and social ideas at the forefront. Utilizing legal strategies, group solidarity and resources pushes a movement forward and social movement litigations create a precedent and influence future movements.
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Social Movement litigation consist of a collective group of people who are conscience of their rights being hindered by the government and desire to bring about a social change. Such actors work as an intermediate with the courts, and lawyers to bring a resolution and mobilize others to become aware of the situation. Legal mobilization is used by activist in court which rely on legal experts to fight this case and negotiate to reach for a common ground through right consciousness. An example of legal advocacy organizations is the NAACP’S Legal Defense and Educational Fund, and the Mexican American Legal Defense and Education Fund. Legal resources are necessary for the promotion and the continuity of the movement and its impact. Culture ideology plays a major role in legal mobilization which embodies the myths of rights: which is a perspective of the effectiveness if litigation for social change from the dominance of legal institutions. Culture ideology arises from a mutual understanding of encroachments of their legal rights and an increasing consciousness of rights. Another cause of social movement is political opportunities which provide for opportunities to shape the strategies and tactics needed to be utilized. For instance, support from elected officials, political elites will contribute to the movement for opportunity to structure legal mobilization. As mentioned in the text, state Sovereignty plays a significant role to gear a movement toward a federal litigation. An example, would be when certain States began to legalize same-sex marriage which directed the gay and lesbian movement for a federal litigation.
Outcomes of a social movement depends on the legal opportunity of a legal precedent. This gives more advantage for the rich to succeed and less for those seeking a social change due to its previous court ruling documentation. An example of this would be in an employer v. union court which are more often used to direct the judge’s decision for a pro-employer over pro- labor precedent. Resource as an outcome of social movement litigation are much needed to staff and pay for successful litigators and pro bono allies, and to promote advocacy groups. These resources are essential to influence winning in advocacy litigation.
I believe litigation can be a possible tactic for social movement to begin. I also think much more is needed such as reputation, consistency, representation from a political elite, or a political figure many connect to. This is essential to the development of social movement because this mass movement can also influence the courts which will enforce social change and lawfully recognize it. I think it’s a starting point as it requires a lot of time and volunteers to continue pushing for change and expect for this to be a prolonged experience.
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Two causes of “social movement litigation” are rights consciousness and legal opportunities. Rights consciousness is when individuals have to come together and “conceptualize their grievances as a violation of individual rights that can be remedied by mobilizing the law”.
Legal opportunities can help social movements organization to have access to “legal elites and institutions and also in regard to the receptivity by legal officials of the claims being made by collective litigation activists.”
Two outcomes of “social movement litigation” are legal opportunity and Judicial attitudes. Legal opportunity in the form of legal precedent can shape judicial decisions. This can develop the concept of structural legal opportunity and fuel both movement mobilization and judicial success. Judicial attitude can impact the how the activist’s demands received because of the judge’s ideological orientation which can either create a change in their demands or not.
Litigation can be a viable strategy for social movements because the social movement has to gain some sort of recognition not just from Congress and Judges but to the public as well so they can know what is going on. To get some sort of changes implemented is done through policies or the law which can take forever but it is one way that the social movement’s demands can be recognized.
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Social litigation is definitively the most viable solution to bring forth social change. It is necessary for informing and including cultural changes and legal reforms in a society. The most effective way is legal mobilization as a form to include social change into a society. It becomes viable to cement rights through the courts through legal mobilization. Though it may be an issue if the courts are packed with justices and judges with different ideologies. Bringing legal actions to the courts allows for the social problem to be a public issue, and that allows for public opinions on the legal matter. Secondly, organizational resources are vital in obtaining social change and gaining influences for social movements. For organization resources, it comes down to having a group with the proper know-how and know-who. If a group or coalition decides to take on a legal matter, it is best to have some knowledge and how to strategically go about this type of social injustice. It is best in these instances to have the proper people for your cause.
An outcome of social movement litigation is the judicial attitude, as I briefly wrote about earlier. Judicial position and ideologies may become an issue in trying to achieve social change. Judges who are keen on a particular issue may not easily change their beliefs. It becomes difficult to try to make social change through litigation and the courts with judges who have a strong political ideology, and it becomes the biggest obstacle for social movements through litigation. Secondly, having a robust legal strategy will affect whether a case is significant enough for a judge to hear a case. According to Kevin T. McGuire, “Lawyers do not recruit amicus briefs unless they are cognizant of their importance in the Court’s agenda-setting; those with records of petitioning expertise in the Court, therefore, try to amplify their claims through amici.” (p. 835). McGuire’s article explores how, through his research, amici curie briefs play a substantial role in the courts and it’s agendas. In order for social litigation to work, amici briefs are essential as a legal strategy. Another important factor for using amici briefs, according to Holly J. McCammon and Allison R. McGrath, it becomes crucial to allow amici briefs as they mobilize supporters.
.Works Cited.
McGuire, Kevin, ‘Amici Curiae and Strategies for Gaining Access to the Supreme Court” Political Research Quarterly 47.4 (December 1994), 821-837.
https://www.jstor.org/stable/448859
– Martin B. (PSC12400)
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Thanks, Martin – it’s useful, too, that you’ve highlighted the importance of amicus briefs
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Two of the four causes of social movement litigation mentioned in the article are political opportunities and organizational resources. Social movement organizations are more likely to turn to litigation when they actually have the resources to do so. In order to litigate, organizations must have access to lawyers and experts in the legal field. Without litigators and legal experts, social movement organizations will not be able to effective fight for their cause in the courts. Social movement organizations are also more likely to litigate when the political environment is on their side. When elites in the political sector show support for the organization’s cause, they are more likely to take the issue to court. They will have a greater chance of winning since there’s greater political support.
One of the outcomes of social movement litigation is legal opportunity. When a case goes to the courts, even if it doesn’t win, it sets a precedent for future cases. When cases go to the court, it can also give the social organization a platform to run on. Depending on how the case goes, activists can use the issues raised during litigation to support their cause. Another outcome of social movement litigation is how it affects the broad social and political context. When a cause is litigated, it can help to bring awareness of the issue to the public. The more the public know about an issue and support, the higher the chances if litigation being successful in the future.
I believe that litigation can be a successful strategy for social movements of there’s a great awareness among the public and political elites. Before an issue should be litigated, the organization should ensure that people actually know about the issue and know their rights are being violated. If there’s no public awareness on the issue, the judiciary might not even see the issue as relevant because no one’s talking about it. Organizations should litigate after they’ve raised a lot of public awareness on the issue.
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One reason for social movement litigation is to bring about change in society when certain people feel their basic rights have been violated and they all have common grievances. Another cause is to change public opinion about an issue. I think an outcome would be to change the status quo by counteracting other opinions that may be the opinion of the elites and power players in institutions and also to change laws. I believe litigation is a viable strategy because of the attention the movement would receive In the media. Litigation can bring about social change, build on existing laws to further advance the change. Litigating in court with an opposition party that is radical can make your argument seem more moderate and reasonable, and also highlighting your opposition’s view then building your own argument is more effective.
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Two causes that came about the social movement litigation are right consciousness and political opportunities. With right consciousness, “collective actors possess an incentive to mobilize the law if they view their shared grievances as unjust and in violation of their fundamental rights” (129). An example of this would be the landmark case of Brown v. BOE (1954) which required equal treatment in schools regardless of race. This case catapulted the movement during the Civil rights era where African-Americans wanted equal protection under the law which then extended to include everyone. This era increased the right consciousness of Americans who weren’t guaranteed equal protections to create their own group rights ex. LGBTQ+ groups. Another cause is political opportunities. There are certain opportunities in which politicians and judges would practice appealing better to the people when it comes to decisions like women’s rights, civil rights, and lgbtq+ rights. An outcome of this movement is judicial attitudes. As stated above, judges would practice being judicial activists then judicial restraint now because of the general public. Another outcome is a broad social and political context. Public opinion and the increasing influence of social media have shifted the judges into trying to keep up with the changing times. Opinions of the court change over time but judges can still be swayed by interest groups and such. I believe that litigation is a viable strategy for social movements. I believe that if the movement wasn’t implemented or emerged at the time that it did, the decisions that have been passed would have not and been detrimental to certain groups. From what I’ve seen, it has done more positive outcomes than negative and due to the changing times, it is needed.
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Social movements occur when an activist group brings a claim to the courts based on the group’s legal rights being compromised. This is known as Social mobilization. Activists groups can range from being: environmental activists, housing activists, LGBT activists, labor activists, etc. For social mobilization to successfully occur, these activists must have a collective understanding of how their rights are being violated using precedents to back their claims. In order for these groups to develop sustainable claims, they have to have legal resources such as access to legal advocacy groups or law firms. They also have to consider the political climate of the timing they are bringing their case forward. Outcomes of a successful case bring forth precedents and a better understanding of legal strategy and how to go about a case.
I do think legal litigation is a viable strategy because the is what gives these activists a framework in bringing about change. Also, it expands their rights in courts; thus solidifying their rights across the judicial arena they bring their case to; whether that is a state or the federal court.
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Throughout this today’s reading Litigating Change? Social Movements and the Court System by Holly J. McCammon and Allison R. McGrath, there is an in-depth discussion of social movement actors and the trend of them using the law and pursuing litigation to resolve the issues they advocate for. Though Mc Cammon and McGrath’s piece interprets this phenomenon in a myriad of ways, one of their core talking points is what causes social movement litigation and what are the outcomes of it. One of the causes of social movement litigation that is discussed in depth in this piece is Rights Consciousness. Rights Consciousness entails a group of individuals within a social movement having a universally felt grasp on the issues/grievances they face (i.e. racism, sexism, etc.) Even further, individuals who do have common grievances see their issues as violations of their basic human rights that can only be remedied by pursuing litigation/enacting law. Another cause of social rights movement litigation that is mentioned within the piece is Legal Opportunity. This specific cause takes into account a social movement’s proximity/access to legal elites and institutions and how legal officials will receive the claims/litigation that they’re trying to raise in the court system. This particular cause is important because where a social movement is positioned in terms of legal opportunity (i.e. whether a specific judge/juries will be favorable to their rights claims) can determine whether their claim of human rights violation is recognized in the eyes of the law. Furthermore, one outcome of social movement litigation is Judicial Attitudes. This particular outcome refers to judicial rulings being affected by the ideological orientation of judges (i.e. where they stand on the political spectrum) rather than legal precedent/judicial review. This outcome could be either good or bad depending on where the social movement pursuing litigation lies politically. For instance, if a far-left social movement’s case is given to a liberal judge, their alignment politically can lead to the demands of the social movement actors being granted. Another outcome of social movement litigation mentioned in this piece is Another outcome of social movement litigation mentioned in this piece is Broad Social and Political Context. This outcome refers to public opinion, changing times, and broader social movement context influencing judicial rulings (rather than legal precedent.) This particular outcome is important because judicial rulings that are grounded in this context acknowledge that times are consistently changing that the law applies to/protects different individuals and institutions then it did decades even centuries ago (i.e. people of color, LGBTQ+, etc.) Overall, through reading this piece and my prior knowledge on this topic, I think litigation is a feasible strategy for social movements and a much-needed practice. A lot of the time, actors within social movement organizations such as the NAACP and the ACLU are bringing forth litigation to judicial courts that not only affect them but the nation as a whole. From the segregation of public schools to women’s rights in the workplace, sometimes issues are too universally felt/broad to not be addressed by social movements and to not mobilized legally in the courts.
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Social movement litigations are the legal steps taken to challenge a status quo that is perceived as a violation of rights by a group who shares an identity. This step is valuable in promoting the constitutional rights of individuals and groups, but it must coincide with advancing a social compassion or understanding for the cause in greater society. An example of how futile a ruling by the Supreme Court is without public support is the case Brown v. The Board of Education. The year 1954, when the decision was handed down that segregation was overt institutional racism, saw little change in the racial makeup of schools. Though it did provide the legal precedent civil rights activists needed almost a decade later to integrate schools, it wasn’t without the growing social support. A different kind of example of the power society holds over the evolution of civil rights is first the ruling against gay rights in Bowers v. Hardwick, where a judge ruled against the plaintiff and thus held up Georgia’s antisodomy laws. The ruling clearly was muddied with the judges personal opinion of homosextual acts and in favor of laws that would criminalize homosexuality. This was a socially cultivated belief and to run counter of that would be to reject the Christian ideals that ruled society. The second would be the 2003 ruling in Lawrence v. Texas which successfully realized the unconstitutionality of laws that target groups who share a sexual identity. It was not because the argument was better this time around, it is because activism had cultivated an acceptance for homosexuals in greater society. The “myth of rights” is apt in that litigation is an effective component of social change, but it is not the spark that lights the fire. Instead it articulates a far reaching mandate that represents greater societies willingness to accept how institutions fail to protect or represent groups, based on their shared identity. Partitioning the federal government to make judgments on behalf of civil rights is essential as state laws can vary in their interpretation and institutional protections of those civil rights. It’s the final step in social activism, to align the social consciousness of the masses with government mandates.
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