The Puzzle of Social Movements in American Legal Theory EVIEW R Scott L. Cummings ABSTRACT LA LAW LA LAW UC 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, the 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. AUTHOR 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, Catherine Albiston, Anthony Alfieri, Sameer Ashar, Leo Beletsky, Devon Carbado, Paola Cecchi Dimeglio, Rashmi Dyal-Chand, Ingrid Eagly, Steve Ellman, Nora Engstrom, Peter Enrich, Laurel Fletcher, Jody Freeman, Duncan Kennedy, Máximo Langer, Frank Munger, Sasha Natapoff, Doug NeJaime, Pricilla Ocen, Russell Pearce, Nick Robinson, James Rowan, Ben Sachs, Chris Schmidt, Jeff Selbin, 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 Berkeley Center for the Study of Law and Society, 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 Turning Points in Social Movements conference at the Indiana Mauer School of Law, the New York Law School Faculty Colloquium, the Northeastern School of Law Faculty Colloquium, and the UCLA 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 the UCLA School of Law administration and staff, especially Elyse Meyers and Jamie Libonate. 64 UCLA L. REV. 1552 (2017) TABLE OF CONTENts Introduction...........................................................................................................1554 I. Framing the Law-Politics Problem in Legal Theory ...........................1558 II. The Rise and Fall of Legal Liberalism ....................................................1560 A. Legal Realism: Avoiding the Tension......................................................1561 1. Dominant Strain: Class and Independence ...................................1563 2. Recessive Strain: Race and Representation ....................................1570 B. Legal Liberalism: Defining the Problems ...............................................1577 1. The Countermajoritarian Problem .................................................1578 2. The Professionalism Problem .........................................................1581 C. Critical Legalism: Contesting Law’s Neutrality ......................................1586 1. The Critique of Legal Neutrality: Constitutional Rights in Adjudication ............................................................................................1588 a. Defense ..................................................................................1589 b. Critique .................................................................................1591 c. Response ................................................................................1598 2. The Critique of Lawyer Neutrality: Client Autonomy in Representation .........................................................................................1603 a. Defense ..................................................................................1604 b. Critique .................................................................................1610 c. Response ................................................................................1614 D. Pragmatic Legalism: Rebuilding Law From the Bottom-Up .................1626 1. Decentering Courts in Constitutional Theory ...............................1628 2. Decentering Lawyers in Professional Theory .................................1632 III. The Legacy of Legal Liberalism: Before Social Movements in Law .1642 A. Foundational Critiques ............................................................................1643 B. Disciplinary Divisions .............................................................................1648 C. Progressive Discord .................................................................................1651 Conclusion ..............................................................................................................1657 1553 1554 64 UCLA L. REV. 1552 (2017) 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 past fifteen years, references to social movements in U.S. legal periodicals have more than quadrupled in absolute terms and doubled in percentage terms over the preceding fifteen-year 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 emerged as key drivers of legal change.3 This is a surprising turnabout for social movements, which as empirical phenomena were more prominent in the 1960s and, as objects of scholarly study, have long occupied a marginal position in social science and have been largely ignored by legal academics. Yet, a half century after the zenith of social movements in American politics,4 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. 1. See, e.g., Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 U. PA. L. REV. 1, 1–2 (2001). 2. Based on a search in Westlaw Classic, from 2000 to 2015, there were 7850 articles in Westlaw’s Law Reviews & Journals database containing the search term “social/2 movement,” up from 1893 articles from 1985 to 2000; during the same periods, the number of total articles in the database grew from 205,401 to 402,421. There has been a similar increase of interest in social movements in sociology. See 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. See, e.g., Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 CALIF. L. REV. 1879 (2007); Jack M. Balkin, Brown, Social Movements, and Social Change, in CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE 246 (Robert L. Hayman Jr. & Leland Ware eds., 2009); Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436 (2005); Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 BERKELEY J. EMP. & LAB. L. 1 (2009); 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 YALE L.J. 2028 (2011); Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 YALE L.J. 2740 (2014); Douglas NeJaime, Winning Through Losing, 96 IOWA L. REV. 941 (2011); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006). 4. It was just over fifty years ago that Martin Luther King, Jr. led civil rights protestors across the Pettus Bridge in Selma, see TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS, 1963–65 (1998), one of the symbolic highpoints of the civil rights movement captured in the recent movie SELMA (Paramount Pictures 2014). The Puzzle of Social Movements 1555 To answer it, the Article claims that the social movement turn in legal scholarship can only be understood as the current version of an intense and long- standing historical debate over the appropriate role of law and lawyers in democratic social change. Although this debate crosses ideological lines, it has been most pronounced and controversial within progressive legal scholarship,5 which has divided over the relation between law and transformative politics since the civil rights period.6 The key contribution of this Article is to recover this critical intellectual history in order to explain how the