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Lessons for Legal Mobilization


Scott Cummings is Robert Henigson Professor of Legal Ethics at the UCLA School of Law. He is author of An Equal Place: Lawyers in the Struggle for Los Angeles and Lawyers & Movements: Legal Mobilization in Transformative Times.

What role do—and should—lawyers play in advancing progressive social change? Although this is a question that has dominated progressive legal thought since the civil rights era, it is critical moment to reconsider it, framed by the twin democratic challenges of the Trump era: social uprising challenging structural inequality, alongside vigorous attacks on democratic institutions to undermine political checks-and-balances and core principles of free and fair elections. Both challenges have roots outside of law but fundamentally implicate law’s future: on the one side, demanding that law live up to its promise to ensure equity and inclusion, while on the other, protecting against efforts to dismantle legal systems that hold society back from the precipice of white supremacy, religious intolerance, and authoritarianism.

In my book, An Equal Place: Lawyers in the Struggle for Los Angeles, I examine the recent history of labor activism to challenge economic inequality in Los Angeles for lessons on legal mobilization for progressive change in the contemporary moment. Organized around a close study of five seminal labor campaigns in significant low-wage industries (garment, day labor, retail, grocery, and trucking), spanning from the 1992 Rodney King uprising to the 2008 Great Recession, the book shows how these movements achieved meaningful regulatory reform, while strengthening the position of workers in the field of local politics. In this post, I distill some lessons from that research about legal mobilization in contemporary social movements.

The Progressive Critique

Within the progressive legal tradition, scholars have developed a powerful critique of law as a vehicle of social change. This critique has revolved around three central claims: first, that court mandates are difficult to enforce and thus prone to erode over time; second, that court decisions asserting bold policy changes are likely to provoke countermobilization and, in extreme cases, popular backlash; and third, that repackaging movement claims in the language of law coopts a movement’s trans­formative ambition and props up the legitimacy of an unjust system by buying into formal principles of individual rights that obscure structural barriers to equality. Embedded in this critique is a notion of legal exceptionalism—that there are unique problems with law as a social change tool that do not infect other forms of mobilization—coupled with an implicit argument that nonlegal alternatives (such as mobilizing in the streets and through politics) are superior in producing sustainable, culture-shifting change.

Each dimension of the progressive critique—enforcement, countermobilization, and cooptation—poses a serious challenge to the efficacy of law as tool for social change. Yet the progressive critique has generally ignored the transubstantive nature of the efficacy problem—that is, it has ignored the fact that there are substantial barriers to the enforcement of rules resulting from social movement action irrespec­tive of the venue through which rule change occurs. This does not mean that all rule change confronts identical enforcement problems. The effectiveness of different levers of reform depends on context. Yet a crucial takeaway from this book is that litigation is not unique in its inability to achieve sustained reform of complicated systems dominated by powerful actors. To the contrary, a key lesson is that any policy change that seeks to benefit marginalized groups—whether it occurs through legislation, regulation, or contract—regularly stumbles at the level of implementation given the complexity of regulatory systems and the strength of opponents’ tools of resist­ance. In struggles for redistributive reform, enforcement gaps are the rule, not the exception.

Just as enforcement falters irrespective of the institutional channel through which it flows, countermobilization surges to contest movement gains in which­ever institutional venue they are achieved. In the L.A. campaigns, highly mobilized opponents challenged every movement advance by low-wage worker advocates—not simply those proceeding through court. Although opponents did not succeed in sparking widespread political backlash against the L.A. struggle overall, they did manage to conjure significant forces of resistance in particular cases. For example, in the campaign against antisolicitation ordinances that prevented day laborers from seeking work on street corners, business interests aligned with xenophobic groups to pressure local governments to engage in enforcement crackdowns and mobilized counterprotests against day laborers who litigated for their rights. Similarly, in the campaign to eliminate independent contracting in the Ports of Los Angeles, trucking firms sought to galvanize opposition among those independent contractors who claimed to prefer their non-employee status by turning out contractor drivers at public meetings to advance in­dustry interests. In all cases of countermobilization, industry actors were deeply advantaged by their ability to use law backed by power. Opponents could move from one domain to another in order to thwart movement efforts or circumvent rules in a game of “whack-a-mole”: when the ports campaign succeeded in passing a local law that outlawed driver misclassification, industry went to federal court to prevail; when the grocery coalition stopped Wal-Mart from opening big-box stores in Los Angeles, the company opened a smaller store in Chinatown; when the Mexican American Legal Defense and Education Fund (MALDEF) won a ban of anti-solicitation ordinances, cities drafted smarter ordinances to avoid the legal ruling or ramped up enforcement of preexisting traffic laws. As these examples suggest, countermobilization does not emerge in episodic fashion, particularly attracted to one type of movement win over another. Rather, it is an intrinsic feature of conten­tious politics—one that exists in symbiotic relationship with social movement success.

Law Beyond Litigation

Beyond demonstrating that concerns about efficacy apply to non-legal tools for social change, a close look at social movements expands our understanding of what counts as law in the first instance: pushing analysis outside the domain of litigation and courts, and thus reframing the relationship between law and other forms of social movement activism. Decentering litigation highlights the crucial, yet theoretically underappreciated, roles that lawyers play behind the scenes in creating new legal knowledge. As political governance becomes increasingly fragmented and specialized, a significant part of what movement lawyers do involves integrating knowledge across disciplines and institutions in order to create solutions to complex problems. Lawyers do this by weaving together legal rules from distinct substantive areas into innovative regu­latory fabrics that bolster labor rights (e.g., using zoning rules to require community benefits for existing residents in gentrifying neighborhoods), or by leveraging legal opportunities in one institution (e.g., agency-level environmental re­view) to advance goals in another (e.g., creating legislative space for the port misclassification law). This integrative role requires movement lawyers to be interdisciplinary thinkers—seeing the possibility for legal synergies across formally disconnected legal areas—while also assessing risks that reliance on interdisciplinary strategies for labor rights will backfire.

Tracing legal development behind the scenes of movement campaigns also provides new insight on how lawyers synthesize community knowledge in designing policy from the ground up. In the L.A. movement, ad hoc legal victories responding to specific community grievances served as a foundation to build out more sys­tematic policy: site-specific community benefits agreements and the fight against a Wal-Mart Supercenter in Inglewood generated the legal template for citywide community benefits policy, just as a statewide law assigning legal liability to fashion brands that contracted with sweatshops codified principles underlying anti-sweatshop liti­gation. In these cases, by addressing community concerns first, movement lawyers generated the fact base and regulatory expertise that permitted them to appreciate what provisions needed to be included in broader policy to effectively address un­derlying problems. It also strengthened lawyers’ credibility with government officials and community members by allowing them to point to previous legal success as precedent demonstrating that reform could pro­duce positive results.

Some of the most influential work that lawyers do in movement campaigns involves developing new legal theories and mobilizing them in strategy discussions and policy processes to facilitate their enactment. This was particularly true in the community–labor campaigns in which lawyers had to amass sophisticated know­ledge of city contracting, land use approval, and project finance systems in order to draft policies redesigning those systems to enhance conditions for low-wage workers. Crucially, once a new policy was designed, legal expertise was needed to vouch for the policy’s validity to give it any chance of advancing through the gauntlet of political decision-making. This was evident, for instance, in the Campaign for Clean Trucks at the Port of Los Angeles, where lawyers had to shepherd policy through administrative agency review by drafting legal opinions supporting the authority of cities to require trucking firms hire employee drivers (and thus stop misclassification) under the market participant exception to federal preemption. Those opinions provided legal legitimacy, giving city officials confidence that if they spent political capital on passing the Clean Truck Program, there was a credible chance it would be upheld in court.

When affirmative litigation is a key campaign feature, movement lawyers view it as a tactic not a strategy—integrated into a larger plan rather than an end in it­self. On the front end of movement campaigns, lawyers design litigation in rela­tion to other modes of advocacy—especially organizing and public relations—to exert coordinated pressure on litigation targets as part of an integrated approach. In the anti-sweatshop campaign, impact cases were coordinated with media and protests to place additional pressure on garment companies. A similar strategy was used by National Day Labor Organizing Network and MALDEF, which—after a lawsuit was filed—would stage a public event, marching from the day labor site to city hall to attract press attention.

In the final analysis, evaluating legal mobilization ultimately turns on the meaning of “success,” which is a contested idea that shifts over time in reaction to events. While substantive outcomes matter profoundly, the process by which those outcomes are achieved is also crucial. Who has a voice in shaping movement choices is a fundamental part of the legitimacy of the choices themselves—and in long-term social change cycles, legitimacy is essential to sustain commitment and adapt to setbacks. Reflecting back on the highs and lows of the L.A. movement for economic justice over a two-decade-long arc of monumental struggle calls into question the very notion of suc­cess and failure as useful concepts, pointing instead to the value of more limited, fine-grained analyses of how law and politics interact, for better or worse, at partic­ular moments. What looks like failure at one point, turns into success at another—and vice versa. This book spotlights how lawyers respond to these dynamics: as facts to be studied, understood, planned for, and (when things do not go as planned) revised. Instead of viewing success as advancing policy change that constitutes a decisive victory, movement lawyers ap­preciate that struggle is an unending process, in which wins must be defended and extended over time.