Legal Mobilization and Analogical Legal Framing: Feminist Litigators’ Use of Race–Gender Analogies

• DOI: http://doi.org/10.1111/lapo.12095
• Author: Brittany N. Hearne,Holly J. McCammon,Minyoung Moon,Allison R. McGrath
• Published date: 01 January 2018
• Date: 01 January 2018

Legal Mobilization and Analogical Legal Framing:

Feminist Litigators’ Use of Race–Gender Analogies

HOLLY J. MCCAMMON, BRITTANY N. HEARNE, ALLISON R. MCGRATH, and

MINYOUNG MOON

We investigate how cause lawyers articulate their demands in court. We do so by examining

feminist legal briefs submitted in US Supreme Court cases from 1970 to the present, specifically

focusing on the use of race–gender analogical legal framing. We explore the frequency and

trends in the use of such arguments as well as the forms these arguments take, including how

race–gender analogies parallel frame bridging and transformation. Additionally, we also

investigate why activists choose to deploy race–gender analogies in their legal framing and

discern that different political, legal, and social contexts can produce different uses of the

race–gender analogy.

Social movement legal mobilization occurs when activists invoke the law in their efforts

to bring about social change. In legal mobilization, collective actors use the law as a tool

in seeking social reforms. Many scholars studying legal mobilization do so by considering

how movement groups deploy their efforts in the judicial system (Kawar 2011; Andersen

2005; McCann 1994; O’Connor 1980). Researchers examine activist litigation in the

courts as advocacy groups select and pursue test cases in the judiciary, present arguments

to persuade judges to decide in favor of the movement’s legal goals, and sometimes com-

bine grassroots mobilizing and litigation strategy in synergistic ways (Marshall 2006;

Greenberg 2004). Cause lawyers, who often lead activist litigation, can be highly politi-

cized individuals who identify as members of the social movement (Sarat and Scheingold

2006).

While this literature is far ranging and goes a long way in helping us understand social

movement legal mobilization in the courts, few judicial legal mobilization scholars focus

on the particular ways in which activist litigators invoke the law (McCammon and

McGrath 2015). That is, few investigate specifically how it is that legal activists go about

utilizing the law in litigation (see, e.g., both Pedriana 2009 and Wasby 1984 for excep-

tions). Social movement legal actors, in fact, must pursue their legal cases highly strategi-

cally. To do so, they consider a variety of steps—including deliberately choosing cases

that they believe they can win and that will set important legal precedents (Doherty and

Hayes 2015)—all the while anticipating and planning for judicial responses. A core com-

ponent of litigation strategy lies in how lawyers formulate compelling legal arguments. As

This research was funded by a grant to the first author from the National Science Foundation. The second,

third, and fourth authors contributed equally and their names are listed alphabetically.

Address correspondence to: Holly J. McCammon, Vanderbilt University–Sociology, PMB 351811 Dept. of

Sociology Vanderbilt University, Nashville, TN 37235, USA. Telephone: 615-322-7531; E-mail: holly.mccammon@

vanderbilt.edu.

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

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doi: 10.1111/lapo.12095

cause lawyers take their cases forward, they must strategically articulate their legal claims

in an effort to persuade judicial authorities to decide the dispute in the movement’s favor.

One place in which litigators articulate these arguments is in their legal briefs. The legal

claims made by activist litigators in their briefs—the very words and meanings of their

arguments—provide researchers with a rich set of legal frames and thus a way to observe

up close how legal activists pursue their judicial goals.

1

When the lawyers preparing briefs

are cause lawyers acting in the interests of a social movement, we argue, these legal frames

are simultaneously social movement frames.

In an effort to contribute to our understanding of social movement judicial legal

mobilization, our paper explores legal briefs submitted to the US Supreme Court in

gender-equality cases since 1970. We focus particularly on the use of a specific type of

legal framing in these briefs: analogical legal framing. As Sunstein (1993) points out, this

is a commonly used form of reasoning in litigation, and some (Mayeri 2001; Rush 1997)

argue that it is a dominant form, particularly in civil rights litigation. In analogical legal

framing, a litigant argues that similarities exist, for instance, between two groups, and

developments in law regarding one group should be considered in adjudication concern-

ing the other group (Mayeri 2001; Sunstein 1993).

2

Here we specifically investigate femi-

nist litigators’ use of race–gender analogies in their cause lawyering. Feminist cause

lawyers have pursued a substantial number of cases before the high court over the last sev-

eral decades in an effort to achieve greater gender equality under the law. In such cases,

with some frequency, the feminist party to the case (that is, the party seeking greater gen-

der equality) draws an analogy between racial and gender discrimination as they argue in

favor of broadening gender equality. In fact, MacKinnon (1991, 1281) goes so far as to

state that “the judicial interpretation of sex equality ...has been built on the racial ana-

logy.” Mayeri (2011, 3), who examines in rich detail “reasoning from race,” states that

“‘second-wave’ feminists conscripted legal strategies developed to combat race discrimi-

nation into the service of women’s rights.”

Various scholars explore whether and how movement activists invoke the law generally

(e.g., Pedriana 2006; Andersen 2005; McCann 1994), yet few examine how cause lawyers

articulate their demands in court. Our investigation contributes to the larger literature on

legal mobilization by taking a number of steps. First, we explore the use of analogical

legal framing by activists, a type of litigation reasoning commonly used but not yet inves-

tigated as a form of movement framing. We examine the frequency and trends in the use

of such arguments in feminist briefs presented to the Supreme Court in gender-equality

cases from 1970 to the present. In addition, we provide insight into the various forms the

race–gender analogy takes. Second, we consider how social movement framing concepts,

such as frame bridging and transformation (Snow et al. 1986), can be understood in com-

bination with analogical legal framing.

Finally, our research also contributes to the understanding of why activists choose

to deploy particular types of frames. A handful of scholars have investigated the cir-

cumstances shaping why movements articulate certain types of frames (e.g.,

McCammon 2012; Coe 2011; Maney, Woehrle, and Coy 2005), but few have consid-

ered the circumstances leading to the use of specific frames in movement litigation

(for exceptions, see Goldberg 2014; Fuchs 2013; Ziegler 2011). Our investigation of

analogic framing by feminist legal activists will enrich our understanding not only

of movement framing but also (in particular) of framing as practiced by activists

engaged in legal mobilization. By examining why shifts in the overall use and in the

varying types of the analogic frame occur, our research furthers understanding of

this particular form of legal mobilization strategy.

58 LAW & POLICY January 2018

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