The use of litigation by social movements in order to achieve social change (typically referred to as legal mobilization) has become a topic of major significance at a global scale. Whilst the lion’s share of legal mobilization has arguably taken place in Western democracies, particularly in the United States (with the best known example being the Civil Rights movement, as has been correctly pointed out by last week’s posts, recent efforts have sought to understand similar developments in the developing world across multiple scenarios, including weakly institutionalized democracies, and even in authoritarian regimes where legal mobilization is costly, but not out of the question. As a result, there is increasing scholarly attention to these phenomena (for example, see Gauri and Brinks 2008; Gargarella et al 2006; Vanhala 2011; Yamin and Gloppen 2011; Young 2012). Sometimes these efforts are channeled through high-profile litigation that intentionally seeks to settle “mega-political” questions that prove intractable in other venues (Hirschl 2008). This is the most visible instance of legal contention by social movements, and the one that tends to highlight the need to understand this phenomenon. However, legal mobilization is a much more complex, fragmented, and widespread reality, which includes smaller (even routine) trials, a range of efforts outside the courts (sometimes by actors not directly involved in the legal process), multiple (and even competing) goals, and a range of possible effects well beyond the desired policy change.
Thus, questions concerning these processes abound: Why do social movements choose to take their grievances to court? How are these litigation strategies carried out? When and why are courts more/less sympathetic to social movement claims? Are there certain types of legal doctrine and/or judicial procedures that may pose more/fewer obstructions to legal mobilization? If litigation is attempted in tandem with other strategies, such as protests, to what extent are combined efforts beneficial or counterproductive for the movement’s cause? What is the role of other actors—including academics, legal operators, judges, the media, and so on—in helping social movements achieve their legal mobilization goals? How and why does legal mobilization vary across different types of social movements, political contexts, and judicial systems? And perhaps more importantly, can we begin to identify specific sets of circumstances, causal mechanisms, and short- and long-term processes that could lead to the incidence of particular legal outcomes for social movements? There is still a lot of work to be done in order to understand this phenomenon globally and, therefore, develop a theory of legal mobilization that goes beyond the occasional exercise of predicting whether a movement will take a case to court and win (see Edelman et al. 2010).
In the meantime, new situations continue to test our capacity to explain these processes. Right now, our attention is focused on the U.S. Supreme Court’s cases weighing the constitutionality of the Defense of Marriage Act (DOMA) (Windsor v. United States) (see Pedriana’s post) , and whether California’s Proposition 8 violates the Constitution’s Equal Protection Clause (14th Amendment) (see Martinez’s post). But there are several ongoing instances of legal mobilization that present new challenges to our understanding of the interaction between law and social movements: The multiple efforts of the LGBT community around the world to achieve equality, with a mixed record of successes and setbacks that cut across disparate political and social contexts; the eviction crisis in Spain, where dozens of judges and judicial employees have sympathized with protestors and a growing number of organizations that are opposing the use of courts to evict tenants indiscriminately (a situation that invites comparisons with other efforts carried out in other nations facing economic difficulties); the rich landscape of environmental litigation in Latin America, where litigation has become an effective tool in fighting against governments’ and businesses’ attempts to trump the claims of indigenous and underprivileged citizens; the successful use of litigation before the High Court to prevent the removal of asylum seekers to Malaysia in Australia (the Malaysian Solution decision), and many other examples from a growing list.
Thus, we have arrived at a point where a sophisticated theoretical framework, developed on the basis of a wide array of social movement theories, and built upon hundreds of case studies, can be systematically tested against a growing body of data. As useful as case studies and small-n exercises are, the lack of comprehensive datasets including a host of information across different variables does not allow us to assess the relative importance of different covariates to explain the different steps of the legal mobilization process, from the moment the legal route is contemplated as an alternative to other forms of social contention, to the attainment of a (favorable or unfavorable) ruling, to the actual implementation of the judicial decision in question, to the aftermath of such implementation (i.e. counter-rulings, legal, social and political challenges, among others issues). Besides, scholars have usually emphasized in their studies situations where the activists have already chosen litigation as a viable form of contention, whilst neglecting the study of cases where activists refrain from using the court.
To help narrow this gap, in our work-in-progress about social movements’ use of the courts, we have decided to follow a two-step approach to study legal mobilization in cross-national perspective. We are starting with a small-n case exercise that compares disparate mobilization efforts carried out against financial institutions by owners facing foreclosure in three Latin American countries—Colombia, Mexico, and Venezuela—during the 1990s/early 2000s. Of the many explanatory variables of legal mobilization, their outcomes and effects identified by the literature, we have decided to focus on three sets of variables: the political context, a series of characteristics about the social movements in question, and key features of the judicial systems where the cases were tried. Next, we plan to expand this modest effort towards a more ambitious data-intensive exercise where we systematically identify, document, compile, and classify cases of social movements’ use of the courts with different levels of prominence across a selection of Latin American countries.
In our view, a growing amount of works engaging in larger, systematic, longitudinal, cross-national, and comparative analyses in this area will perfectly complement the considerable body of on-going case studies. Moreover, it would aid scholars settle some of the unresolved questions in the literature of legal mobilization that we have identified above, while inevitably introducing others.
Edelman, Lauren B., Gwendolyn Leachman, and Doug McAdam. 2010. “On Law, Organizations, and Social Movements.” Annual Review of Law and Social Science 6: 653-85
Gauri, Varun, and Daniel Brinks (eds.). 2008. Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. New York: Cambridge University Press.
Gargarella, Roberto, Pilar Domingo, and Theunis Roux (eds.). 2006. Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? Burlington, VT: Ashgate.
Hirschl, Ran. 2008. “The Judicialization of Mega-Politics and the Rise of Political Courts.” Annual Review of Political Science 11: 93-118.
McCann, Michael. 2006. “Law and Social Movements: Contemporary Perspectives.” Annual Review of Law and Social Science 2: 17-38.
Vanhala, Lisa. 2011. Making Rights a reality? Disability Rights Activists and Legal Mobilization. Cambridge, UK: Cambridge University Press.
Yamin, Alicia Ely, and Siri Gloppen (eds.). 2011. Litigating Health Rights: Can Courts Bring More Justice to Health? Human Rights Program, Harvard Law School.
Young, Katharine G. 2012. Constituting Economic and Social Rights. Oxford: Oxford University Press.