THE PUZZLE OF SOCIAL MOVEMENTS IN AMERICAN LEGAL THEORY Scott L. Cummings∗ In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, this Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics. This problem erupted as an intellectual crisis after Brown v. Board of Education asserted a model of social change through law—what scholars termed “legal liberalism”—that placed courts and lawyers in the lead of progressive movements. In the decades following Brown, legal liberalism provoked a forceful reaction by progressives who viewed court and lawyer activism as illegitimate and counterproductive. A core contribution of this Article is to show how contemporary scholars have responded to the decline of legal liberalism by developing a competing model—“movement liberalism”—that assigns leadership of transformative legal change to social movements in order to preserve traditional roles for courts and lawyers. In doing so, movement liberalism claims to achieve the lost promise of progressive reform, while attempting to avoid critiques of court and lawyer activism that have divided progressive scholars for a half-century. After explaining the rise of movement liberalism, this Article offers a critical perspective on its promise. On the positive side, this new model offers a deeply optimistic account of the capacity of movements to enhance democratic participation that usefully focuses attention on the critical role of grassroots mobilization in reshaping law. Yet by spotlighting movements, the model obscures important aspects of how courts and lawyers may affirmatively contribute to social change. As a result, movement liberalism ironically ends up carrying forward the very critiques of courts and lawyers that it claims to surmount, while reproducing the precise debate about the role of law and politics in progressive social change that it seeks to bridge. The Article concludes by suggesting that what is needed is not grand theory that posits grassroots activism as an antidote to court and lawyer activism, but rather an empirically grounded account of when movements, courts, and lawyers may effectively work in concert for change. ∗ Robert Henigson Professor of Legal Ethics and Professor of Law, UCLA School of Law. For invaluable feedback on this project, I am grateful to Richard Abel, Anthony Alfieri, Sameer Ashar, Leo Beletsky, Devon Carbado, Paola Cecchi Dimeglio, Rashmi Dyal-Chand, Ingrid Eagly, Steve Ellman, Nora Engstrom, Peter Enrich, Jody Freeman, Duncan Kennedy, Máximo Langer, Frank Munger, Sasha Natapoff, Doug NeJaime, Pricilla Ocen, Russell Pearce, Nick Robinson, James Rowan, Ben Sachs, Bill Simon, David Trubek, Louise Trubek, Michael Waterstone, Lucie White, David Wilkins, and Noah Zatz. I also benefitted enormously from presenting versions of this work at the Legal Ethics Schmooze at Stanford Law School, the Legal Ethics Scholars’ Roundtable at Fordham Law School, the New Legal Realism 10th Anniversary Conference at the UC Irvine School of Law, the New York Law School Faculty Colloquium, and the Northeastern School of Law Faculty Colloquium. And I could not have done it all without the superb research assistance of Tyler Anderson, Julia Nick, and Alyssa Titche, as well as the support of the Harvard Law School and UCLA School of Law administration and library staff. Draft. Do not circulate or cite. 4.1.2016 2 THE PUZZLE OF SOCIAL MOVEMENTS [2016 INTRODUCTION ..................................................................................................................................... 2 I. FRAMING THE LAW-POLITICS PROBLEM IN LEGAL THEORY ........................................................... 5 II. THE RISE AND FALL OF LEGAL LIBERALISM .................................................................................... 7 A. Legal Realism: Avoiding the Tension .......................................................................................... 8 B. Legal Liberalism: Defining the Problems................................................................................... 21 C. Critical Legalism: Contesting Law’s Neutrality ....................................................................... 28 D. Pragmatic Legalism: Rebuilding Law from the Bottom-Up..........................................................51 III. THE EMPIRICAL PATH OF LAW: COURTS, LAWYERS, AND MOVEMENTS IN SOCIAL SCIENCE ........ 62 A. Law in Social Movements ........................................................................................................ 62 B. Social Movements outside of Law ............................................................................................. 72 IV. THE PROMISE OF MOVEMENT LIBERALISM................................................................................... 76 A. Majoritarian Courts ................................................................................................................ 78 B. Movement Lawyers .................................................................................................................. 83 V. THE PERSISTENCE OF PROGRESSIVE DIVISION .............................................................................. 90 A. Reproducing Critical Legal Debate ........................................................................................... 91 B. Reinforcing Foundational Critiques ....................................................................................... 104 CONCLUSION ...................................................................................................................................... 112 INTRODUCTION This Article is about a central puzzle of contemporary American legal scholarship: the dramatic rise of social movements as key actors in legal theory.1 In the last fifteen years, references to “social movements” in U.S. legal periodicals has more than quadrupled in absolute terms and doubled in percentage terms over the prior period.2 Perhaps even more significantly, social movements have become critical to the work of prominent scholars in fields at the heart of American legal theory, where they have 3 emerged as key drivers of legal change. This is a surprising turnabout for social 1 See, e.g., Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 UNIV. PENN. L. REV. 1 (2001). 2 As an indication of the growing influence in social movements, from 1970 to 1985, there were 96 articles in Westlaw’s Law Reviews & Journals database referencing “social” /2 “movement” (this was 0.6% of 17,347 total articles). From 1985 to 2000, the number climed to 1,893 (0.9% of 205,401 total articles); since then (as of January 1, 2015), there have been 7,850 articles (2.0% of 402,421 total articles). Cf. Law School Faculties 40% larger than 10 years ago, NATIONAL JURIST, Mar. 9, 2010; see also David A. Snow, Sarah A. Soule & Hanspeter Kriesi, Mapping the Terrain, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 3, 5 (David A. Snow, Sarah A. Soule & Hanspeter Kriesi eds., 2004) (noting the increase of social movement articles in the top four sociology journals between the 1950s and 1990s). 3 LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT (1994); Jack M. Balkin, Brown, Social Movements, and Social Change, in CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE (Robert L. Hayman Jr. and Leland Ware ed., 2008); Tomiko Brown- Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. (2005); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419 (2001); Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Draft. Do not circulate or cite. 4.1.2016 2016] 3 movements, which as empirical phenomena were more prominent in the 1960s and as a scholarly field has long occupied a marginal position in social science and been largely ignored by legal academics.4 And yet, a half century after the zenith of social movements in American politics,5 they have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this impressive new role—and what it means for legal theory and practice—is the central inquiry of this Article. To answer it, this Article advances three core ideas. First, it makes the novel claim that the social