Disentangling Law and Social Change

To the casual observer, law often seems like the perfect vehicle for social change. Every so often, a high-profile case validates an important constitutional right or protects a vulnerable group from state coercion. Consider some of the rulings from last summer: the Supreme Court struck down the Defense of Marriage Act, and, though the future of her decision is unclear, a federal judge ruled that the stop and frisk tactics of the New York Police Department violated the rights of minorities in the city. A familiar narrative inevitably emerges from these moments: we endlessly praise the visionary lawyers who brought the case, as well as the progressive judges who finally saw the light. Chalk one up for progress! What’s next?

But the reality is rarely so simple. A narrow focus on the headline cases and the handful of lawyers who litigated them distorts the full picture of the forces necessary to bring about these victories. It also oversimplifies the complex ways lawyers advocate for change.

Take stop and frisk. In August, a New York federal district court judge found that the policy was being applied unconstitutionally to minorities in New York City and directed a federal monitor to implement reforms. The ruling was undoubtedly a victory for the communities and legislators that vigorously opposed the policy for years. An appeals court panel recently stayed the decision and reassigned the case to a different judge, but it is unclear what effect this will have, as the soon-to-be mayor Bill De Blasio has signaled his intention to drop the appeal. Despite those recent developments, the stop and frisk ruling is one of the most notable recent examples of a social movement coming to fruition through the courts. Yet in law school we rarely discuss the constellation of forces – both within and outside the legal profession – that give rise to decisions like this.

A narrow view of the relevant actors would focus on the lawyers who brought the case and the judge who decided it. But that approach mistakes the trees for the forest. If we zoom out, we would see the legal service providers who heard their clients’ complaints about the policy and collected statistics about its discriminatory impact. Add in those lawyers who may oversee the reforms to the program and offer ideas and recommendations to the federal monitor. And then there are the community groups whose collective voices and activism drew attention to the problems that stop and frisk was causing and started demanding change from the city council. The list of key players could go on.

If lawyers seem preconditioned to believe that final judgments represent the end goal of social change, it is because that dogma is central to our early experiences with legal analysis in 1L. The 1L curriculum paints an incomplete picture of what the social and political world actually looks like. It validates certain reasoning styles while shunning others, examines single cases abstracted from their larger social context, and omits important topics such as the access to justice disparity.

Legal education is also invested in a set of starting premises that it’s sometimes hard to see beyond. One of these was identified by Stuart Scheingold as the “myth of rights.” It helps explain why there is such widespread faith in the ability of courts to create social change.

The myth of rights has three parts. First, it accepts that litigation can be used to evoke a meaningful declaration of rights from courts; second, that courts have the power (and will) to help realize those rights; and third, that that realization is tantamount to meaningful change.

The last several decades have cast doubt on these premises in several important ways. Judges have been either unwilling or unable to fashion a right to fit all worthwhile goals, leaving important economic and social protections without judicial articulation. Also, the existence of a formal right doesn’t necessarily imply that a remedy is close behind, either due to the awkwardness of judicial enforcement mechanisms (see Brown and its progeny) or the difficulty of enforcing that right on an individual basis. Finally, litigation, by casting disputes in terms of individual parties, obscures the collective roots of social problems and inequities. Even the power of class actions, the exception to this tendency, is being eroded by the Supreme Court as it upholds mandatory arbitration clauses and tightens class certification standards.

I don’t mean to suggest litigation isn’t worthwhile – of course it is – only that we do ourselves an injustice by seeing it as the exclusive endpoint of any social change agenda. The law is a tool whose strategic value to any particular movement is dependent on what’s trying to be achieved, and how. Questions of timing, strategy, and values are all implicated.

To return to stop and frisk, both of the decisions raise as many questions as they answer. For one, the district court only provided partial guidance on how the program would be reconfigured to lessen discriminatory outcomes. Assuming it survives appeal, will the judgment sap energy from the citizen-driven social movement that had been so active in the months before the decision? What is the practical importance of both the judgment and the stay given that Mr. de Blasio, who prevailed after strongly campaigning against stop and frisk, has promised not to appeal the decision? Was this an example of the political system working or not working? Was the judicial system the best institutional actor to combat discriminatory police treatment? And which court was more “activist,” in the end?
These questions don’t have easy answers, and some aren’t even open to empirical analysis. But they have to be asked. The legal profession doesn’t operate in a vacuum, and that’s especially true of lawyers working to further social and political goals. More than ever before, lawyers will need to partner with organizers, community groups, business leaders, and elected officials to advocate for meaningful change. A broader vision of how social change occurs will deepen our sense of all the moving pieces of activism, and help us creatively shape our role as lawyers within it.