The Social Movement Turn in Law

The rise of social movements in US legal scholarship is a current response to an age‐old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept—movement liberalism—that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half‐century. Yet rather than resolving the law‐politics problem, movement liberalism reproduces long‐standing debates, carrying forward critical visions of law that it seeks to transcend.     

Lawyers and Embedded Legal Activity in the Southern Civil Rights Movement

We introduce the concept of embedded legal activity to capture the ways in which lawyers and legal organizations can become intertwined in the ongoing activities of social movements. Embedded legal activity is characterized by diverse issues and venues and comprises legal activities that help support movement infrastructure, close coordination between movement lawyers and other activists, and responsiveness to constituent needs. Investigating a comprehensive data set on legal activity during the southern civil rights movement, we identify forms of legal activity beyond the typical focus of legal mobilization, including defense for movement participants charged with misdemeanors and other crimes, movement assistance on organization‐level legal matters, and general legal aid to movement constituents. These were by far the more common types of legal activity and emerged from the embeddedness of lawyers in a mass movement. We argue that embedded legal activity is likely where movements prioritize grassroots leadership and community organizing and face significant countermobilization, hostile legal and political opportunity structures, and substantial social and economic inequality.     

Boycott,Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism

This article examines the role of cause lawyers in conflicted or authoritarian contexts where the chances of legal victory are often minimal. Drawing upon the literature on resistance, performance, memory studies, legal consciousness and the sociology of lawyers, the paper examines how cause lawyers challenge and subvert power. The paper first explores the tactics and strategies of cause lawyers who boycott legal proceedings and the relationship between such boycotts and broader political struggles, legitimacy and law. It then examines why and how cause lawyers engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’), transforming courts into sites of symbolic resistance, and using law as a form of memory work. The paper argues that boycott of and resistance through the courts can counter the use of law as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the rule of law.     

Cause Lawyers,Political Violence,and Professionalism in Conflict

This article examines how cause lawyers in conflicted and authoritarian societies balance their professional responsibilities as lawyers with their commitment to a political cause. It is drawn from extensive interviews with both lawyers and political activists in a range of societies. It focuses on the challenges for lawyers in managing relations with violent politically‐motivated clients and their movements. Using the notion of ‘legitimation work', it seeks to examine the complex, fluid, and contingent understandings of legal professionalism that is developed in such contexts, offering three overlapping ‘ideal types’ of cause lawyers in order to better understand the meaning of legal professionalism in such sites: (a) struggle lawyers (b) human rights activists and (c) a ‘pragmatic moral community'. The article concludes by re‐examining how law is imagined in the legitimation work of cause lawyers in such settings and how that work is remembered in the transition from violence.     

Where Have All of the Pro‐Choice Lawyers Gone? An Analysis of Post‐Roe Reproductive Rights Lawyering

A body of scholarship attests to the importance of experienced litigators before the U.S. Supreme Court. In this article, we specifically consider the role of experienced litigators in the thirty years of reproductive rights litigation that followed Roe v Wade . To that end, we divide the lawyers by their pro-choice or pro-life affiliations and ask (1) how often individual lawyers appear before the Court in reproductive rights cases, (2) who the lawyers arguing these case before the Supreme Court are, and (3) how their participation has changed over time. We find changes in the pro-choice and pro-life bars that mirror the reproductive rights movement at large. Pro-choice groups, which once employed a stable of elite lawyers with significant expertise, have been decimated by the retirements of pro-choice counsel with no lawyers emerging to replace them. At the same time, the pro-life bar and pro-life groups appear to be developing a strong litigation campaign complete with experienced litigators.     

Leprosy,Legal Mobilization,and the Public Sphere in Japan and South Korea

This article addresses the question of what gets transmitted in cross‐national diffusion and why. It does so by analyzing the spread of rights‐based activism from Japanese to South Korean leprosy (Hansen's disease) survivors in the 2000s. Previous scholarship would predict extensive diffusion of mobilizing frames and tactics, especially since Korean lawyers learned an effective legal mobilization template while working with Japanese lawyers to win compensation for Korean leprosy survivors mistreated by Japanese colonial authorities before 1945. Yet the form of subsequent activism by Korean leprosy survivors for redress from the Korean government differed from the original Japanese model. This case suggests the need for scope conditions on theories about isomorphism and the agency of brokers. In particular, it draws attention to how the structure of a country's public sphere—and especially its legal profession, news media, and activist sector—affects the feasibility of imported innovations related to activism and legal mobilization.     

Lawyers as infrastructures: mediations,blockages, and new possibilities in grassroots movements

What roles do lawyers play when their own subaltern communities are mobilizing for justice? Drawing on the case of anti-eviction mobilization on the island of Al-Warraq in Egypt, this article investigates the infrastructural roles of community lawyers in grassroots movements. As their profession transformed into an underpaid and undervalued occupation, masses of lawyers became precarious professionals living subaltern lives. Living among the poor with the elite knowledge of the law enabled community lawyers to forge new relations between the grassroots and the elites, the streets and the courtroom, and farmers and the national media. Drawing on an ethnography of the movement, I posit that community lawyers operate as social infrastructures: liminal subjects in uncertain times, capable of generating new possibilities and social relations. As social infrastructures within their communities, they shape the opportunities for action, facilitating new modes of resistance while blocking others.     

Civil Society and the Lawyers’ Movement of Pakistan

This article examines the conditions under which judiciaries become politicized under authoritarian regimes, focusing on the 2007–2009 lawyers’ movement of Pakistan. The prodemocracy movement arose after the sacking of the Supreme Court Chief Justice by General Musharraf, and was remarkably successful in removing Musharraf and restoring the sacked judges. Although the conventional wisdom is that such judiciaries are quiescent, I argue that judicial actors can play important roles in democratization, but only under certain conditions. In the case of Pakistan, civil society actors were vital in helping the judiciary become politicized and in linking the lawyers’ movement to the larger cause of democratization. I argue that, otherwise, the lawyers’ movement could not have headed the movement that eventually led to the restoration of democracy. Specifically, I argue that civil society played a crucial role, framing the movement as broad, national, and prodemocracy, which enabled it to overthrow the authoritarian regime.     

Interdisciplinarity and the Discipline of Law

This article concerns the effects of interdisciplinary research conducted by academic lawyers on the legal discipline itself. It discusses the intellectual tension between the modes of legal analysis traditionally used by academic lawyers and the approach taken by interdisciplinary scholars, and how this tension is rooted in the challenges interdisciplinarity poses to widely-accepted notions about the purposes of legal scholarship and the relationship between academic lawyers and the legal profession. The article considers the implications of legal interdisciplinarity in light of the cultural context from which legal interdisciplinarians emerge and how the relationship between legal scholarship and legal practice ultimately guarantees the continued existence of a distinct and coherent disciplinary identity for law.     

Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers

This article examines the meanings of politics in everyday legal practice using the case of Chinese criminal defense lawyers. Based on 194 in‐depth interviews with criminal defense lawyers and other informants in 22 cities across China, we argue that lawyers’ everyday politics have two faces: on the one hand, lawyers potentially can challenge state power, protect citizen rights, and pursue proceduralism in their daily work; on the other hand, they often have to rely on political connections with state agencies to protect themselves and to solve problems in their legal practice. The double meanings of politics—namely, political liberalism and political embeddedness—explain the complex motivations and coping tactics that are frequently found in Chinese lawyers’ everyday work. Our data show that the Chinese criminal defense bar is differentiated along these two meanings of politics into five clusters of lawyers: progressive elites, pragmatic brokers, notable activists, grassroots activists, and routine practitioners. They also suggest that a principal manifestation of political lawyering is not merely short‐term mobilization or revolutionary struggle against arbitrary state power, but also an incremental everyday process that often involves sophisticated tactics to manage interests that often conflict.     

Conceptions of Agency in Social Movement Scholarship: Mack on African American Civil Rights Lawyers

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)—namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites only. Mack focuses especially on the tensions of this role in courtrooms, where African American lawyers were necessarily called upon to act as the equals of white judges, opposing counsel, and witnesses. Mack's thesis, focused on the contradictions and tensions embodied in the performance of a racially loaded identity, reflects the influence of postmodern identity performance theory as articulated by Judith Butler and others. Mack and others belong to a new generation of civil rights history scholars who are asking new questions about contested identities related to race, gender, sexuality, and class. This essay offers an evaluation of this new direction for civil rights scholarship, focusing especially on its implicit normative orientation and what it contributes to the decade‐old debate over how to conceive of agency in social movement scholarship.     

The Vernacular Mobilization of Human Rights in Myanmar's Sexual Orientation and Gender Identity Movement

This article examines how activists build a movement for sexual orientation and gender identity minorities in Myanmar, a country that is known for violent suppression of protests and is undergoing political reform. Based on original fieldwork, it finds that activists deploy a strategy of “vernacular mobilization of human rights” to persuade others to join their cause despite the risks to personal safety and to get around political constraints on collective organizing. Conceptualized at the intersection of the cultural study of human rights and social movements scholarship, “vernacular mobilization of human rights” theorizes the relationship between vernacularization—the translation and local adaptation of human rights—and movement micromobilization, specifying how the former unfolds as collective action framing processes. Through vernacularization activities, such as human rights workshops, movement leaders reframe grievances and shift the attribution of blame to empower and recruit new activists. Furthermore, with these framing processes, they generate a political community with a collective identity and social networks that they use to continue expanding the movement. The article enriches debates about the implications of implementing human rights and understandings of the relationship between human rights and movement mobilization, especially under repressive or uncertain political conditions.     

Strange Bedfellows: How an Anticipatory Countermovement Brought Same‐Sex Marriage into the Public Arena

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same‐sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same‐sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.     

Lawyers for God and Neighbor: The Emergence of “Law as a Calling” as a Mobilizing Frame for Christian Lawyers

Drawing on movement framing, collective identity, and mobilization scholarship, this article examines the emergence and potential effects of framing “law as a calling” for the Christian Lawyering community. The article finds that the term should have strong resonance and salience in the broader Christian community. It also finds that because of its interpretive malleability, “law as a calling” has been discussed and actualized in three related, but distinct, ways. That is, “law as a calling” has been conceptualized as requiring Christian Lawyers to turn inward, turn outward by pursuing social justice, and turn outward as a culture warrior. The article argues that while the different interpretations of “law as a calling” address a range of needs required to mobilize potential and existing Christian L/lawyers, the different ideological factions of self‐identifying Christian Lawyers emphasize different understandings of “law as a calling.”     

A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire

The history of the legal profession has been dominated by Richard Abel's monopolization thesis, and by Terence C. Halliday and Lucien Karpik's political model of lawyers as maintainers of liberal polities. By contrast, Assaf Likhovski's legal history of mandate Palestine treats lawyers and judges as cultural intermediaries who shaped the legal identity of Jewish and Arab communities. This article situates Likhovski's book within a growing body of scholarship on non-European lawyering in the British Empire. It links Likhovski's case studies to legal figures from colonial India, West Africa, and Malaya, all of whom acted as cultural translators and ethnographic intermediaries in the formation of colonial identities.     

How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?

In this article, we begin to respond to the deceptively simple question: How do cause lawyers decide when and where to litigate on behalf of their cause? We consider the choice of location and timing faced by cause lawyers when more than one jurisdiction evinces a suitable legal environment for pursuing litigation on their cause. To consider this choice, we use evidence from the timing and actions of cause lawyers in the marriage equality cases in the United States from January 1990 through December 2004. And, we show the value in utilizing methods that are relatively novel in cause lawyering research—statistical models—to consider the apparent commonalities, beyond a suitable legal environment, across locations and time periods that might prompt cause lawyers into action.     

Under the Law: Legal Consciousness and Radical Environmental Activism

A growing body of sociolegal scholarship focuses the study of law away from formal texts and legal institutions and toward the experiences and perceptions of “everyday” citizens. This study introduces seventeen “radical” environmentalists who engage a repertoire of tactics that includes some actions that involve relatively severe forms of illegality. This research seeks to investigate the role of civil disobedience and lawbreaking within the radical environmental movement and the corresponding legal consciousness of movement actors. Utilizing ethnographic fieldwork and content analysis, this analysis suggests that Ewick and Silbey's (1998 ) three‐tiered model of legal consciousness is an operative starting point, but could be enhanced through theoretical expansion. This study proposes a new category of legal consciousness—Under the Law—that views the law as the protector and defender of a social order that is fundamentally illegitimate. Under the Law is qualitatively different from existing conceptualizations of legal consciousness and reaffirms the mutually constitutive nature of law and society.     

Negotiating Social Norms and Relations in the Micromobilization of Human Rights: The Case of Burmese Lesbian Activism

This article provides the first sociolegal analysis of lesbian rights activism in Myanmar. It elucidates the processes through which a group of lesbian activists navigate sexual and gender norms that oppress lesbians as sexual minorities and as women while they use human rights discourse to carry out micromobilization work, organizing constituents and building up grassroots participation in Myanmar. It analyzes how the collective deployment of human rights encompasses resistance against social norms that pose organizing obstacles for activists and the negotiations of social relations to counter them. These micromobilization processes shape whether and how activists adopt human‐rights‐based strategies and tactics. Bringing together law and society scholarship and social movement studies, the article highlights the importance of understanding human rights mobilization by marginalized populations who face multiple, overlapping forms of oppression and contend with plural sources of power.     

The construction of allegedly abused children’s narratives in Scottish criminal courts

This study investigated lawyers’ use of social narratives surrounding child sexual abuse when questioning 66 5- to 17-year-old alleged victims in Scottish criminal courts using a mixed-methods approach. Thematic analysis found that the use of beliefs and stereotypes varied depending upon the lawyers’ role (defense/prosecution), children’s age, and the alleged victim-defendant relationship. These findings were investigated further using narrative analysis, which showed that, with increasing age and decreasing familiarity with defendants, narratives increasingly focused on the characteristics and actions of the victims rather than the defendants. Older children contributed more to narratives than younger children, but their contributions were only incorporated into the prosecutors’ narratives. Defense lawyers adopted more victim-blaming tactics as the narratives developed. Findings suggest that the criminal justice system, practitioners, and researchers must do more to recognize and guard against the reinforcement of stereotypes that may influence public rhetoric and jury decision-making.