The Legal Mobilization Dilemma
74 PagesPosted: 1 Sep 2011Last revised: 10 Aug 2012
Date Written: September 1, 2011
This Article examines Perry v. Brown, the federal lawsuit challenging Proposition 8, through a social movement lens. While lawyers at the leading LGBT legal organizations sought to keep the federal courts away from Proposition 8, a new organization, the American Foundation for Equal Rights (AFER), filed the Perry suit. AFER’s well-resourced challenge to conventional movement wisdom materialized in large part because LGBT movement advocates had achieved so much success in using a legal mobilization strategy – one that deployed litigation in conjunction with a range of other tactics and exploited the mobilizing and political potential of rights claims – to place marriage equality on the national agenda. Using social movement theory to examine the effects of legal mobilization exposes a tension that social movement advocates must confront and that scholarly accounts have failed to fully capture: The same strategy that yields movement progress may channel tactical conflict into powerful litigation that threatens and redirects that strategy. This is what I term the legal mobilization dilemma. As a general matter, litigation poses a threat when tactical disagreement arises; any single movement member can initiate a lawsuit that threatens to bind the entire movement. But sustained and successful legal mobilization may make litigation an especially appealing and powerful option through which to contest movement strategy. By attracting constituent and elite support for rights-based frames and court-centered tactics and by making litigation more viable as both a political and doctrinal matter, successful legal mobilization may channel tactical conflict into potent lawsuits that have the capacity to significantly redirect the movement’s strategic trajectory.
Keywords: legal mobilization, social movements, cause lawyering, sociolegal, litigation, same-sex marriage, LGBT Rights, Perry v. Schwarzenegger
Suggested Citation:Suggested Citation
NeJaime, Douglas, The Legal Mobilization Dilemma (September 1, 2011). Emory Law Journal, Vol. 61, 2012; Loyola-LA Legal Studies Paper No. 2011-32. Available at SSRN: https://ssrn.com/abstract=1920996
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What explains the likelihood that a nongovernmental organization (NGO) will turn to the courts to pursue their policy goals? This article explores the factors that influence the mobilization of law by environmental NGOs in four Western European countries. It finds that explanations focused on legal opportunity structures are unable to account for the patterns of within-country variation in legal mobilization behavior. The research also shows that bird protection NGOs as well as home-grown national environmental NGOs are generally more likely to turn to law than transnational environmental groups. Although resources and legal opportunities clearly matter to some extent, the author suggests—drawing on sociological institutionalist theory—that explanations of NGO legal mobilization should (a) incorporate an understanding of how groups frame and interpret the idea of “the law” and (b) explore the role of “strategy entrepreneurs” who promote the use of particular tactics within an organization.