Lawyers and Embedded Legal Activity in the Southern Civil Rights Movement

• DOI: http://doi.org/10.1111/lapo.12096
• Published date: 01 January 2018
• Author: Kay Jowers,Kenneth T. Andrews
• Date: 01 January 2018

Lawyers and Embedded Legal Activity in the Southern

Civil Rights Movement

KENNETH T. ANDREWS and KAY JOWERS

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.

I. INTRODUCTION

Reflecting on the heyday of the Mississippi movement, one grassroots activist recalls that

“back then we had a lawyer behind every bush.”

1

In fact, an enormous amount of legal

activity took place during the civil rights movement. In the years following the move-

ment’s peak, legal tactics and activity continued to play a central role in areas of voting,

education, and social policy (Parker 1987). The courts—particularly federal courts—have

been central to the implementation of civil rights policies and to countering various

efforts to dilute or reverse civil rights gains. However, legal activity and the role of cause

lawyers in the civil rights movement were more diverse and extended beyond the court-

room (Hilbink 2004, 2006).

We examine legal activity in the ongoing struggles of social movements as they attempt

to generate viable organizations and leverage change. Research on movements and law

has focused disproportionately on how effective law is for achieving a movement’s ulti-

mate goals (Rosenberg 2008; Burstein 1991; Handler 1978; Vose 1958) and on how the

proactive use of law—legal mobilization—by activists matters to movements (Boutcher

and McCammon forthcoming; McCammon and McGrath 2014; McCann 1994). Accord-

ing to McCammon and McGrath, “Legal mobilization by social movement actors occurs

We are grateful to Steven Boutcher and the anonymous reviewers for valuable feedback on prior drafts of this

article. Earlier versions were presented at the American Sociological Association Meetings and the Law and

Society Association Meetings.

Address correspondence to: Kenneth Andrews, University of North Carolina at Chapel Hill, Department of

Sociology, Hamilton 155, CB 3210, Chapel Hill, North Carolina 27599, USA. Telephone: 919-843-5104;

E-mail: kta@unc.edu.

LAW & POLICY, Vol. 40, No. 1, January 2018 ISSN 0265-8240

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doi: 10.1111/lapo.12096

when activists move into the judicial arena and make their claims in court” (2014, 128).

We refer to legal activity as the broader work lawyers and legal organizations do, which

can extend beyond the judicial arena and courts. Thus, though legal activity can be under-

stood in relation to courts, it is not limited to this context (Boutcher and Stobaugh 2013;

Wilson 2013; Barclay, Bernstein, and Marshall 2009).

In contrast, we examine the legal activity undertaken both within and outside courts by

the major civil rights legal organizations in Mississippi from 1960 to 1973: the National

Association for the Advancement of Colored People (NAACP) Legal Defense Fund

(LDF), the Lawyers’ Constitutional Defense Committee, and the Lawyers Committee for

Civil Rights Under Law (LCCRUL). Using this data, we pose two questions: (1) what

were the main forms of movement legal activity, and (2) how was this legal activity shaped

by the larger movement and the social, legal, and political context? Through our analysis,

we explore the legal activities themselves and the link between that legal activity, the

broader movement, the state, and white resistance to it. We document the diversity of

legal activity that emerges from both the proactive mobilization of law by movements and

the reactive response of movements to state repression and countermobilization. Further,

we examine the varied scopes and contexts of the proactive legal mobilization—some

cases were brought to achieve movement goals and set a new precedent, while others were

brought to ask the courts to delineate the activists’ rights to particular means of

protesting.

The civil rights struggle provides an important case because it has shaped scholarly and

popular understanding of law and movements. Although this case has distinctive quali-

ties, we argue that the work of civil rights attorneys in Mississippi provides important

insights for understanding legal activity in many other movements, especially those facing

hostile political environments or seeking to organize disenfranchised groups with limited

resources (Zwerman and Steinhoff 2012; Kawar 2011; Merry et al. 2010; McVeigh,

Welch, and Bjarnason 2003; Werum and Winders 2001).

Our analysis also builds on scholarship that explores how social movements use law in

ways that are not designed to achieve a core movement goal (e.g., Wilson 2013) and pro-

vides an important counterpoint to prior research that places emphasis on proactive stra-

tegic legal mobilization by movements and on lawyers as core figures in movements. We

introduce the concept of embedded legal activity in order 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.

Clearly, legal activity and mobilization are central to many movements. However, embed-

ded legal activity differs from more conventional legal mobilization, which tends to be

more specialized, autonomous from other movement tactics, focused more exclusively on

courts, and linked to proactive impact litigation strategies.

We argue that movements that prioritize grassroots leadership and community orga-

nizing will seek to integrate legal activity into their diverse activities and will resist having

other kinds of activism subordinated to or disconnected from legal work. Pervasive insti-

tutional and extralegal resistance to movements will broaden the scope of legal activity

and multiply potential focal points for legal activity. Building on the prior point, closed

political and legal opportunity structures will also channel legal activity toward more

embedded forms by presenting numerous legal challenges for a movement to address.

Finally, movements that organize constituencies facing massive social, economic, and

political inequalities will encounter greater demands for embedded legal activity,

Andrews and Jowers EMBEDDED LEGAL ACTIVITY 11

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