The Anatomy of Social Movement Litigation.

• Author: Briker, Gregory

NOTE CONTENTS INTRODUCTION 2306 1. TRADITIONAL THEORIES OF LECAL MOBILIZATION 2311 II. TOWARD A DISAGGREGATED MODEL OF SOCIAL MOVEMENT LITIGATION 2317 A. Claiming 2318 B. Discovery 2323 C. Record Building 2331 III. THE CASE OF EAST RAMAPO 2338 A. Background: A District in Crisis 2338 B. Claiming: "21st Century Jim Crow Education" 2348 C. Discovery: "What They're Saying Is Actually True" 2350 D. Record Building: "This Is What the Judge Found" 2353 E. Aftermath 2357 CONCLUSION 2359 INTRODUCTION

Why do social movements go to court? Sometimes the answer is straightforward: activists seek the coercive power of a judicial decree. But litigation can also shape social movements in indirect ways. Legal concepts like rights can frame grievances and unite activists around particular goals. Judicial decisions can inspire movements by providing symbolic victories or defeats. The filing -- or the mere threat -- of a lawsuit can bring recalcitrant parties to the bargaining table. Though legal mobilization scholarship examines the indirect effects of litigation on movements, this field was long neglected by legal academics and left to sociolegal scholars in other disciplines. (1) A generation ago, one could lament that law professors and sociolegal scholars "communicate only fitfully, if at all, with one another," facing a "language barrier... higher than the one between English and French, German or Italian." (2)

Recently, the legal mobilization framework has come to play a larger role in legal scholarship. (3) Despite this welcome change, significant divides remain between scholars of law and of social movement theory. "[G]reater interdisciplinary dialogue" is still necessary to fully appreciate the effects of law on movements. (4) While legal academics and their colleagues across campus may now be speaking the same language, they do so in decidedly different dialects.

This Note seeks to bridge the divide between legal and social movement scholarship by applying the legal mobilization framework to the process of litigation in all its complexity. Previous studies of law's indirect effects on social movements have generally disregarded the nuts and bolts of litigation, instead focusing on how indirect effects flow from judicial determinations and reducing the ordeal of litigation to its conclusion. This bias is understandable: in law schools, the judicial decision is the coin of the realm. Legal education foregrounds judicial opinions to the exclusion of context and procedural history. (5) Though unsurprising, the tendency to focus on outcomes alone is misguided, akin to losing sight of the journey by fixating on the destination. For their part, sociolegal scholars outside of legal academia have also explored the indirect effects that stem from litigation as a whole but have tended to focus more on what happens beyond rather than within the courtroom. These analyses offer crucial insights into how legal action shapes activism on the ground, but they do not always consider the intricacies of litigation.

Missing from both sets of prior accounts is the centrality of procedure to legal mobilization. Although the phases, norms, and rules of procedure go unnoticed or undertheorized, they shape the dividends that movements can reap from their legal efforts. This Note argues that particular elements of litigation -- including the pleading of claims, the collection of evidence through discovery, and the creation of a judicial record -- are sources of indirect effects, presenting activists with distinctive opportunities to derive extralegal benefits from legal action. However, as this Note demonstrates, these benefits are far from inevitable. Instead, they are facilitated or frustrated by the procedural rules and norms that structure litigation itself.

Disentangling the process of movement litigation sheds new light on whether and how courts are useful vehicles for those seeking social change. Activists have long questioned the value of litigation, characterizing legal action as too slow and too conservative. (6) Critical scholars have echoed them, casting doubt on the capacity of courts to produce social change. (7) Some charge that litigation is not only ineffective but also harmful, providing pyrrhic victories that demobilize, deradicalize, and distort movements. (8) For these critics, litigation is indeed a source of indirect effects, but such effects do more harm than good. (9) Others, including critical race theorists, have defended rights-based legal-reform efforts as limited but valuable means of movement building. (10) Arguments over the utility of courts to social movements have only intensified in recent years. (11) Legal mobilization scholarship emerged out of this debate, employing empirical methods to better understand how legal action advances and impedes movement goals. (12) By foregrounding the role of procedure in producing indirect effects, this Note challenges the terms of the debate: any account of the possibilities and dangers of movement litigation must attend to how procedure enables and constrains indirect effects.

This Note explores the anatomy of social movement litigation by attending to its constituent parts. (13) Placing sociolegal research in conversation with civil-procedure scholarship, this Note highlights how specific elements of litigation generate indirect effects. It applies this framework to a range of historical examples, revisiting iconic cases on issues as varied as school desegregation, fair employment, marriage equality, consumer protection, and property law. In each case, the courtroom did not serve merely as a venue to resolve private disputes. (14) Instead, courts provided conceptual, informational, and rhetorical resources to activists of all stripes. In no small part, these resources were products of process.

This Note argues that three procedural stages, and their accompanying rules and norms, are especially pertinent to legal mobilization. First, the act of claiming can frame grievances in new terms and unite activists around a common vision. Second, discovery enables movement litigants to garner information from their adversaries that may be useful well beyond the courthouse. Even if a document produced during discovery is not critical to one's legal case, it can be a smoking gun in the court of public opinion. Third, record building enables activists to enshrine and validate their experiences in ways that can be seized upon in further political actions. Claiming, discovery, and record building operate dynamically but produce distinctive indirect effects that can contribute to legal mobilization. They reflect some, though certainly not all, of the ways in which procedure shapes social movement activity.

This Note then proceeds to an in-depth case study of a recent voting-rights lawsuit in East Ramapo, New York -- a curious instance when activists went to court knowing full well that a favorable judicial decree would have little direct impact. (15) While the East Ramapo Central School District overwhelmingly served low-income students of color, its Board was controlled by white members who exclusively sent their children to private religious schools. As the Board cut back on programs and staff, public-school advocates opposed such changes but made little headway in political channels. In 2017, they filed a federal vote-dilution lawsuit against the district, targeting the at-large system of elections rather than the educational disparities faced by students of color. Members of the public-school community understood that even with a victory in court, they would still lack control of the Board. Drawing on original interviews and contemporaneous reporting, this Note demonstrates that activists instead sought and attained the indirect effects of litigation. These effects flowed from particular stages of litigation and were mediated by procedural rules and norms. This Note thus provides evidence that even when activists are well aware that they will not find salvation through judicial decrees, they may nonetheless turn to courts because of the benefits that radiate from the litigation process. (16)

Part I reviews traditional accounts of indirect effects, demonstrating that they tend to neglect procedural intricacies and treat litigation as a monolith. Part II advances a disaggregated model of social movement litigation, showing how discrete elements of litigation and their procedural rules and norms are critical to the production of indirect effects. Part II further applies this framework to a wide variety of historical cases. Part III uses this model to examine the case of East Ramapo, relying on public reporting, court documents, and interviews with activists to demonstrate how litigation procedure shapes movement activism outside the courthouse walls.

1. TRADITIONAL THEORIES OF LEGAL MOBILIZATION

   Since the 1970s, sociolegal scholars have examined how law and legal action influence movement activism. Their work has embraced a "constitutive vision of law," in which "legal discourse, categories, and procedures" not only play a "coercive" role but also "shape social relations." (17) Sociolegal scholars have applied this framework to social movements to explore law's indirect or extralegal effects on activism, which emanate from law and litigation but are distinct from the enforcement of court orders. (18)

   Early work on legal mobilization focused primarily on how activists could derive extralegal benefits from judicial victories. In 1974, political scientist Stuart Scheingold rejected what he called a "myth of rights," under which litigation was valuable mainly as a way to secure formal legal entitlements through court orders. (19) Scheingold instead endorsed a "politics of rights," whereby rights are "political resources" (20) that can be wielded to alter "public policy indirectly." (21) This indirect impact stemmed from the capacity of legal victories to improve a movement's...