Academic journal article Michigan Law Review

Stealth Advocacy Can (Sometimes) Change the World

Academic journal article Michigan Law Review

Stealth Advocacy Can (Sometimes) Change the World

Article excerpt

STEALTH ADVOCACY CAN (SOMETIMES) CHANGE THE WORLD

BELOW THE RADAR: HOW SILENCE CAN SAVE CIVIL RIGHTS. By Alison L. Gash. Oxford and New York: Oxford University Press. 2015. Pp. xx, 205. $45.

INTRODUCTION

Scholarship and popular writing about lawsuits seeking broad social change have been nearly as contentious as the litigation itself. In a normative mode, commentators on the right have long attacked change litigation as imperialist and ill informed,1 besides producing bad outcomes.2 Attacks from the left have likewise had both prescriptive and positive strands, arguing that civil rights litigation is "subordinating, legitimating, and alienating."3 As one author recently summarized in this Law Review, these observers claim "that rights litigation is a waste of time, both because it is not actually successful in achieving social change and because it detracts attention and resources from more meaningful and sustainable forms of work such as mobilization, political lobbying, and community organizing."4

Several particularly influential studies eschew the clear ideological position of the works just referenced; they offer what they claim is a purer empirical grounding for the conversation. These studies highlight backlash, purporting to demonstrate that many landmark decisions-among them, the U.S. Supreme Court's Brown v. Board of Education and Roe v. Wade, the Hawaii Supreme Court's Baehr v. Lewin, and the Massachusetts Supreme Judicial Court's Goodridge v. Department of Public Health-have turned out to be not merely inefficacious but counterproductive, harming the very causes they aimed to assist because of the countermovements they provoked.5

But rights lawsuits have their defenders as well, among both advocates and scholars.6 Many of these defenders agree with lawsuit critics that "activists and analysts" err, badly, if they assume "that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of these rights; and, finally, that realization is tantamount to meaningful change."7 To use Professor Scheingold's phrase, these assumptions are tantamount to a "myth of rights"8-and, like so many myths, this one does not reflect reality. A much more fruitful frame, Scheingold writes in his classic treatment, focuses on "the politics of rights,"9 in which a right recognized by a court is "best treated as a resource of uncertain worth" whose "value . . . will . . . depend in all likelihood on the circumstances and on the manner in which it is employed."10 Accordingly, rights lawsuits-and the "cause lawyers" who bring them-can improve the welfare of their intended beneficiaries, by using litigation as a piece of a more comprehensive political strategy.

Continuing to quote Scheingold (but it could be any of a small library of consonant analyses), litigation and the rights it aims to vindicate are productive only if "useful for redistributing power and influence in the political arena."11 This can occur if litigation is used for "political mobilization and . . . in this way affect[s] the balance of forces."12 Introducing data from her interviews with dozens of leading public interest lawyers, Professor Rhode explains:

Part of the reason public interest groups have relied heavily on lawsuits is because they can sometimes mobilize such [financial and popular] support and because other options are less available. . . . As research on social movements makes clear, lawsuits can help frame problems as injustices, identify perpetrators and responses, and reinforce a sense of collective identity, all of which build a political base for reform.13

Rhode further summarizes: "In describing their most effective strategies, public interest leaders most often mentioned, in addition to impact litigation, coalition building and communication."14 And indeed, studies of the varied practices of advocates for whom litigation is an important tool find that litigation remains attractive to those advocates in large part because lawsuits provide a public focal point for organizing, possessing a "unique ability . …

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