Litigating Change? Social Movements and the Court System

Sociology Compass 9/2 (2015): 128 139, 10.1111/soc4.12243 Litigating Change? Social Movements and the Court System Holly J. McCammon* and Allison R. McGrath Department of Sociology, Vanderbilt University Abstract Social movement actors increasingly turn to the law and pursue litigation in their efforts to bring about social change. Our article provides an overview of scholarship on collective and politicized litigation, drawing from sociolegal studies, political science, and sociology. We consider scholarship that illuminates why activists turn to litigation tactics in the first place and circumstances in which a social movement litigation strategy can be successful. We also consider additional impacts of movement litigation. Given that social movement researchers in sociology have, to date, paid only limited attention to activist litigation, we encourage scholars in the discipline to investigate further this important form of social movement mobilization. A clear trend in US social movement activism in roughly the last half century has been increased use of litigation in efforts to bring about social change (Epp 1998; Meyer and Boutcher 2007). Scholars often refer to activist litigation as social movement legal mobilization (Burstein 1991). Activists engage in legal mobilization typically when movement legal advocacy groups pursue cases in court legal cases often designed to challenge core assumptions about the extent of a social group s legal rights. Historically prominent examples include the NAACP s effortsin Brown v Board of Education (Greenberg 2004), the ACLU Women s Rights Project s (WRP s) pursuit of greater legal equality for women in Reed v. Reed (Campbell 2003), and, more recently, the gay and lesbian movement s struggle to win legal recognition of same-sex marriage (Stolberg 2013; Ziegler 2012). There is growing scholarly attention to activist litigation, much of it occurring among legal scholars and political scientists (McCann 2004; Sarat and Scheingold 2006). Social movement researchers in sociology increasingly investigate activist litigation in a number of recent studies (see, e.g. Boutcher 2010; Levitsky 2006; Marshall 2006; Pedriana 2009), although scholars do point to a gap between social movement research and sociolegal studies (McCann 2006; Rubin 2001). The review we offer below of the social movement and litigation literatures is an invitation to sociologists to give greater attention to social movement litigation strategy, to consider what legal mobilization is, when it occurs, and whether it can be an effective avenue for social change. We also encourage scholars to bring social movement theories and concepts further into these discussions. Legal mobilization as social movement litigation Legal mobilization by social movement actors occurs when activists move into the judicial arena and make their claims in court. As they engage the court system, activists follow legal procedures and formulate demands using legal language, often a language of legal rights (Scheingold [1974] 2004). Pursuing social change via the courts typically means relying on legal experts, lawyers who themselves may identify as activists and prioritize the movement s reformgoals,and, yet, who are also insiders to the legal profession and thus possess the necessary legal knowledge and litigation expertise (Sarat and Scheingold 1998). Legal activists must negotiate how legal tactics interact with other movement strategies, particularly those involving grassroots initiatives 2015 John Wiley & Sons Ltd.

Social Movements and the Court System 129 (Levitsky 2006; Marshall 2006). Some scholars consider the role of legal professionalism and how professional norms and priorities inf luence movement lawyers understanding of their work (Hilbink 2006; Sarat and Scheingold 1998). Movements may form legal advocacy organizations, organizational units that specialize in politicized litigation, such as the NAACP s Legal Defense and Educational Fund, which was a forerunner that other groups such as the Mexican American Legal Defense and Education Fund later used as a model (Greenberg 2004; San Miguel 1987). Some of the earliest scholarship on legal mobilization centers on individual legal mobilization or the decision and capacity of particular citizens to turn to the courts for legal remedy (Black 1973). This body of research focuses on variations in legal resources and legal consciousness among individuals, which facilitates or hinders legal engagement for dispute resolution (Galanter 1974; Merry 1990). Importantly, however, some scholars in this nascent body of research frame their discussion of litigation in terms of collective efforts, particularly by activist groups (Handler 1978; Milner 1986; Scheingold 1974 [2004]). This includes work by Burstein and Monaghan (1986), who wrote of the equal employment opportunity movement, Tushnet (1987) on the civil rights movement, and O Connor (1980) on the women s movement. In the discussions that follow, we consider two prominent themes in social movement litigation research: (i) the causes of collective legal mobilization and (ii) the impact of social movement legal activism, including its consequences for broad social change and its inf luence on movements themselves. Causes of social movement litigation Scholars have proposed several theoretical understandings that account for the underlying causes of legal mobilization. While each of these frameworks provides a compelling argument for why collective actors strategically turn to the law, they sometimes do not acknowledge one another and the likely combined causal processes leading to legal mobilization. Rights consciousness In order for individuals to collectively mobilize the law, they must first develop a legal rights consciousness that is, they must be able to conceptualize their grievances as a violation of individual rights that can be remedied by mobilizing the law (Merry 1990; Milner 1986). As noted by Eskridge (2001), collective actors possess an incentive to mobilize the law if they view their shared grievances as unjust and in violation of their fundamental rights. In order for individuals to see their legal rights as compromised, they must be able to interpret their collective grievances as a problem relevant to categories of law (Merry 1990). Thus, rights consciousness f lourishes in conjunction with the development and clarity of legally enforceable rights (Epp 1990). Few social movement scholars consider the role of legal rights consciousness in the initial decision to turn to legal mobilization (although see Polletta 2000 on translating grievances into rights claims). But in the case of social movements such as the civil rights and women s movements, collective actors first had to develop a shared group consciousness that allowed them to view their disadvantaged social identities as in violation of their perception of basic rights. According to McCann (1994:7), constituents ability to develop a collective group consciousness is dependent on their willingness to adopt the discourse of basic rights embodied by rights consciousness and is characterized by the ongoing, dynamic process of constructing one s understanding of, and relationship to, the social world through the use of legal conventions and discourses. From this perspective, rights consciousness ref lects the ways in which collective

130 Social Movements and the Court System actors view and interpret their basic rights, which can vary dramatically from person to person, group to group, and place to place. Individual actors rights consciousness stems from a broader cultural ideology that, as Scheingold (1974 [2004]) tells us, is embodied by the myth of rights. The myth of rights refers to an ideological perspective emphasizing the effectiveness of litigation as a strategy for social change. This perspective stresses the dominance of legal institutions and promotes tactical choices formed around litigation strategies. Although a growing rights consciousness has deepened and expanded over time with the successful litigation strategies of movements (McCann 1994), scholars have noted that rights consciousness cannot solely account for why movement actors choose to mobilize the law (Andersen 2005; Burstein 1991). These scholars argue that although individuals may collectively unite due to a shared understanding of encroachments upon their legal rights, their growing sense of rights consciousness must also be accompanied by organizational resources and broad contextual opportunities that provide them with the ability and further incentive to pursue legal mobilization. Organizational resources As noted by McCarthy and Zald (1977), discontent and a sense of injustice are common occurrences. However, collective grievances do not always stimulate collective action. The proposition that social movements are the result of collective reaction to systematic strain fails to account for the role of the social movement organization itself. According to McCarthy and Zald (1977), movement activists must have organizational resources that allow them to turn grievances into collective action. Critical resources can include finances, leadership, effective organization, and broad grassroots support (McCarthy and Zald 1977). When it comes to legal mobilization, a growing rights consciousness among constituents is unlikely single-handedly to produce an expansion in judicial action; rather, collective actors growing consciousness must be accompanied by organizational and legal resources. Epp (1998) reports that social movements turn to the courts when they have the crucial support structure to pursue litigation tactics. Given the need for legal expertise to negotiate judicial channels and also the costs associated with litigation, movement organizations with adequate financial resources, legal professionals (typically rights advocacy lawyers), an organizational structure able to support these professionals, and sometimes coalition partners in the broader legal advocacy community are needed to allow activists to turn to legal mobilization. Political opportunities In addition to having important resources, social movement organizations ability to mobilize the law often depends on circumstances in the broader environment. While the resource mobilization framework focuses heavily on internal organizational resources, a political opportunity perspective considers external, contextual factors, particularly the political context in which social movement organizations are embedded (McAdam 1996). The core idea behind the political opportunity perspective is that political systems provide opportunities and constraints that help shape the type of strategies and tactics that movement organizations utilize. For example, supportive political elites, traditions, and electoral environments can encourage movement actors to consider legal avenues of action. Barclay and Fisher (2006) find that the same-sex marriage debate encountered strikingly different public and political responses in the 1970s compared to the 2000s, due to shifts in national awareness, election of openly gay

Social Movements and the Court System 131 officials, and introduction of some supportive legislation, all of which indicated a far more open political opportunity structure in the later period that helped fuel legal mobilization. On the other hand, Meyer and Staggenborg (1996:1648) comment that a closed political opportunity structure, in which lawmakers are highly resistant to movement demands, may compel activists to approach the court system as a venue in which they perceive a better chance of gaining legal change. Southern Democrats in Congress in the 1940s and early 1950s, staunch supporters of the South s segregationist policies, made it difficult for early civil rights movement activists to succeed using a legislative route to change, rendering a litigation strategy all the more appealing ( Jenkins and Peck 2013). Additionally, a new study by Dorf and Tarrow (2014) indicates that same-sex marriage litigators were, to a significant degree, compelled to respond to countermovement mobilization among those opposed to gay and lesbian rights as that counter mobilization was manifested in Congress passage of the Defense of Marriage Act and similar moves by conservative state legislatures. The role of the political opportunity structure in inf luencing activist decisions to litigate may be even more complex. Burke (2002) points out that a political system with decentralized legislative decision making, such as the US federalist system, where individual states have power to set their own policy which can produce a patchwork of differing regulations may compel social movements to turn especially to the federal courts in an effort to establish national policy. Pierceson (2013) indicates that state differences in the legality around same-sex marriage played a role in steering the gay and lesbian movement toward federal litigation. In the end, the role of political opportunity structure and its inf luence on activist litigation decisions appears to vary substantially, and understanding this variation should be on the agenda for future research. Legal opportunities In the case of legal mobilization, legal opportunities as another type of contextual circumstance can be highly important (Andersen 2005; De Fazio 2012; Vanhala 2012). Legal opportunities share the same underlying features as political opportunities, in ref lecting openness in a broader context. As Hilson s (2002) useful discussion outlines, legal opportunities can be viewed in terms of social movements access to legal elites and institutions (or structural legal opportunity) and also in regard to the receptivity by legal officials of the claims being made by collective litigation activists (or contingent legal opportunity). When it comes to deciding to mobilize the law, movement organizations must take into account possible legal opportunity rooted in structural access to judicial institutions, as well as formal definitions of legal standing (Andersen 2005; Hilson 2002). They must also consider the degree of receptivity among legal elites, especially judges and in some cases members of juries, whose opinions determine whether the rights claims of collective actors can and will be acknowledged under the law. For example, Andersen (2005) finds that the gay rights organization Lambda encountered different litigation outcomes in the 1980s compared to the early 2000s when it came to challenging sodomy laws. Anderson identifies several shifting legal opportunities involving turnover in the Supreme Court and shifts if cultural framing around homosexuality and gay rights that inf luenced legal thinking, leading to success in the Lawrence v. Texas in 2003, following the failure in litigation in Bowers v. Hardwick in 1986. Outcomes of social movement litigation Studies of legal mobilization also consider the outcomes of movement litigation strategies, often focusing on whether legal cases and broader policy changes are achieved. Extant research

132 Social Movements and the Court System provides conf licting understandings of whether social movement litigation can bring about social change, both in terms of winning cases and inf luencing social policy. On one side of the debate, scholars contend that litigation is unlikely to have important impacts. In a widely cited piece, Galanter (1974) argues that litigation almost always favors the powerful and wealthy, whose resources allow them to be repeat players, presumably leaving little room for activist legal success. Similarly, Rosenberg (1991) posits that legal decisions simply echo changes well underway in larger society, and thus, social movement groups can only succeed in court when broad cultural change is already taking place. Rosenberg, for instance, finds that Roe v. Wade s legalization of abortion was only possible when some states were already liberalizing their abortion policies. He also concludes that the Brown decision did not ameliorate educational racial segregation. Other scholars (e.g. Scheingold 1974 [2004]; Tushnet 1987) also voice skepticism that litigation tactics can be a tool for change. More recently, various researchers suggest that movement legal mobilization can matter, at least in some circumstances. Sociolegal and a few social movement scholars consider the contextual conditions in which social movement activists can succeed in court and their use of effective activist legal strategies. Scholars often focus on inf luences in the judicial arena that shape activist success as well as on social movement resources and strategic choice and adaptation. Legal opportunity The role of legal precedent (that is, the principle of stare decisis) in shaping judicial decisions particularly in the lower courts has long been documented (Epstein and Knight 2004). In a careful consideration of legal standing in the courts for the gay and lesbian movement, for instance, Andersen (2005) demonstrates the importance of statutory foundations and case precedent ( legal stock ) and uses these to develop the concept of structural legal opportunity, which she finds can fuel both movement mobilization and judicial success (see also Hilson 2002). For instance, environmental laws enacted in the 1970s, including the Clean Air and Clean Water Acts, gave the environmental movement a legal platform for litigation mobilization in the following decades (Coglianese 2001). McCammon and Kane (1997) alert us to the possibility that differing types of legal precedent can play different roles in judicial decision making. They find that in employer-union court disputes pro-employer precedent guided judicial decisions more than pro-labor precedent. Judicial attitudes Another important inf luence stemming from the legal arena affecting judicial decision making is judicial attitudes (Segal and Spaeth 2002). A sizeable body of research shows that judges ideological preferences can play a role independent of legal precedent in shaping judicial rulings, especially at the appellate levels where the threat of judicial review is reduced. More specifically, research reveals that the ideological orientations judges bring to the courtroom can inf luence how activists demands are received (e.g. Andersen 2005; Sunstein et al. 2004). Here, a connection can be drawn between social movement and sociolegal theorizing. The judicial attitudes model articulated by sociolegal scholars is akin to the role of political opportunity in theorizing social movement political outcomes: When legal elites are aligned ideologically with the demands of movement activists, a contingent legal opportunity in the form of sympathetic elites exists (Hilson 2002; McAdam 1996).

Social Movements and the Court System 133 Broad social and political context One can also move outside the judicial arena to find evidence of other contextual inf luences on judicial decision making, including public opinion, the broader social movement context, Congressional action, and opposition. Sarat and Scheingold (2006) highlight the importance of the broader political context and public sentiment toward activist goals in inf luencing litigation outcomes. Campbell (2003), for instance, notes that in the 1970s, Supreme Court justices considering women s rights cases weighed Congress s stance toward the ERA in their decision making. Others (Andersen 2005; O Connor and Epstein 1983) highlight the important role of opposition in the broader context, often indicated by the number of opposing amicus ( friend of the court ) briefs filed in a particular case. George and Epstein (1991) find that such briefs in women s rights cases increase over time, and some issue areas, such as reproductive rights, garner far more opposition. Research considering the primacy of the need for broad cultural shifts before activist litigation success can occur harkens back to Rosenberg s (1991) assertion that the courts follow cultural shifts rather than lead in policy change. Resources While researchers consider how the broad context can inf luence the success of activist legal mobilization, fewer scholars examine how legal activists themselves play a role in shaping these outcomes. Typically such studies focus on activist lawyers ( cause lawyers ) and the core resources movement legal advocacy groups must possess to pursue successful litigation. Adopting a resource mobilization approach (McCarthy and Zald 1977), researchers point to critical resources such as broad grassroots support (McCann 1994:172 3), support structures such as legal advocacy organizations, a staff of expert lawyers, and funding (Epp 1998), and critical allies (Andersen 2005; Burstein 1991). Boutcher (2013), in an innovative recent study, discusses the importance of resources that can f low from pro bono allies in large private law firms, and Albiston and Nielsen (2013), in a broad study of public interest law organizations and their funding sources, demonstrate the importance of activist litigation financing. This body of research shows that such resources can be highly inf luential in winning advocacy litigation. Legal strategy Few social movement studies consider how the strategic agency of activist litigators may matter in movement litigation outcomes, that is, how social movement legal actors develop and deploy legal tactics in order to inf luence legal outcomes. While legal doctrine, judicial attitudes, the cultural and political context, and movement resources are important, legal activists waging campaigns in the judicial arena also consciously select individual cases and sometimes a sequence of cases to bring before judges. Additionally, they strategically develop their legal expertise, craft legal arguments designed to inf luence judicial thinking, and mobilize networks of legal and activist groups to contribute in particular ways and at particular junctures, all in their pursuit of legal victories. Importantly, activists pursue their legal strategies in light of developments in the broader judicial, political, and cultural environment. In short, their strategic legal activism can be highly interactive with the broader context, as they engage in strategic adaptation (McCammon 2012). Below, we discuss some ways in which litigation activists strategize and adapt their tactics. We do not present this as an exhaustive list of strategic considerations but rather hope to stimulate interest among students of social movements in study of movement litigation strategy.

134 Social Movements and the Court System 1 Strategically Choosing Legal Areas and Cases: Wasby (1995) details a variety of factors considered by civil rights movement litigators as they made choices about the particular areas of law in which to work and then specific cases to pursue, including other groups involvement in litigation areas. Ruth Bader Ginsburg, now a Supreme Court Justice, but in the 1970s founder and director of the ACLU s WRP, states that she strategically chose cases not only for their potential to generate important legal gains if won but, if lost, that also would not set the group back substantially in achieving its feminist goals (Ginsburg et al. 2013). Others (George and Epstein 1991; O Connor 1980) comment on a need to pursue a series of legal cases which allow a group to build expertise in an area and even become a repeat player in the courts, an advantage that Galanter (1974) deems critical to legal success. But litigation activists may not always have full control over choices regarding issue areas and specific cases. Recent studies suggest constraints on the agency of legal advocates. For instance, Boutcher s (2013) example of a Pennsylvania case spearheaded by the ACLU concerning teaching intelligent design in local schools reveals the necessity of attracting support from large private law firms, particularly financial support that can come with the pro bono lawyering from private firm partners. But Boutcher warns of implications of public legal advocacy group reliance on private law firm resources. These private interests, depending on where they are willing to channel their pro bono resources, can steer advocacy litigation toward certain issues and even certain cases. Boutcher s research highlights the need to consider the implications of social movement activism at it moves into the institutional and professional arenas of litigation work. 2 Strategic Legal Framing: Litigator strategy can also be found in framing efforts in legal briefs and oral arguments and in amicus briefs and broader educational efforts by litigators outside the courtroom (e.g. in law review journals and textbooks; Kerber 2002; O Connor 1980). As social movement scholars (Snow and Benford 1988) explain, framing is the process by which social movement actors make meaning, by defining social problems, assessing causes, and formulating solutions. Some sociolegal scholars point to the importance of framing as legal activists engage in naming, blaming, and claiming (Felstiner et al. 1980; Pedriana 2006; Silverstein 1996; Stobaugh and Snow 2010). Research shows that framing by legal counsel can play a highly influential role in shaping case outcomes, establishing legal precedent, and influencing the development of broader policy (Epstein and Kobylka 1992; Ringsmuth et al. 2012). The types of legal frames that help activist litigators achieve their goals and the discursive circumstances in which framing is successful are likely to vary (McCammon et al. 2007). Social movement framing scholars (Snow et al. 1986) tell us that resonant frames, those that draw on beliefs already widely held, are likely to help activists convince audiences and ultimately help them win the reforms they seek. Andersen (2005) and Pedriana (2009) have pursued such lines of reasoning in considering legal framing in court cases, and scholars have debated the merits of using rights based arguments, with their broad appeal, to further activists claims (e.g. Polletta 2000). Some legal scholars (Epstein and Kobylka 1992), on the other hand, indicate that flexible legal frames those able to absorb the concerns of opponents are more likely to succeed. This latter conceptualization is akin to Maney et al. s (2005) idea of hybrid framing, in which social movement frames that combine ideational elements that simultaneously challenge the status quo and incorporate already existing and widely held beliefs and values are more likely to persuade activist targets. Additional scholars take a different approach, arguing that use of particular sources of authority in legal framing may determine their effectiveness (Monahan and Walker 1986; Stryker et al. 2012). Some point to the power of personal narratives to convey reasons for legal change (Brooks and Gewirtz 1996; Delgado 1989; Jackson 1988).

Social Movements and the Court System 135 But, again, the work of some scholars suggests further nuancing our understanding of litigation framing. Such framing is not likely to be entirely under the control of activist litigators. As Fisher (2009) and Stobaugh and Snow (2010) explain, legal opponents and even the structure of the court system itself importantly inf luence litigator framing. Meyer and Boutcher (2007), as well, trace the inf luence of decisions in landmark legal cases (e.g. Brown v. Board of Education) on future legal framing in a wide variety of social movements. While social movement legal actors can make strategic decisions about litigation framing, other inf luences heavily guide these decisions. 3 Mobilizing Networks of Support: In addition to strategically selecting cases and framing legal arguments, litigation activists are often strategic in another way. They consciously work to mobilize broad networks of support and media publicity for their cases. A number of sociolegal scholars have noted that popular support for expansions in legal rights is an important condition that can fuel success in judicial activism. Bernstein (2013) writes of legal support tactics by grassroots members of movements, such as protesting outside the courthouse. In her study of the animal rights movement, Silverstein (1996) stresses the need to combine litigation with demonstrations and media publicity to raise public awareness. Barkan s (1980) examination of cases involving antiwar defendants during the Vietnam War shows that defendants and their lawyers cultivated sympathetic press coverage. Burstein (1991) notes the importance of government actor allies in successful equal employment litigation. Inviting amicus briefs can be another means of mobilizing supporters. In efforts to gain positive outcomes in sexual harassment cases, feminist lawyers in one organization used networks of feminist attorneys to increase amicus support (Baker 2008). In another example, legal activists encouraged radical groups to provide amicus briefs to make lead counsel s arguments appear more moderate (Campbell 2003; see Haines 1984 on radical f lank effects). Samuels (2004) provides evidence that coordination among legal groups in filing amicus briefs in specific issue areas generally grows over time as the issue is treated in more detail in the courts. Influences on social movements themselves Finally, we add one last point about the outcomes of social movement litigation. A number of scholars move away from focusing on outcomes concerning legal cases and policy to consider the inf luence of activist litigation on social movements themselves. This is an important line of inquiry that raises questions about how litigation, often occurring in one branch of a movement or being conducted by a particular social movement organization, can inf luence the movement more broadly. Some scholars point to the very language that lawyers as professionals use or the sometimes narrow legal issues that litigation must pursue, which can erect barriers to grassroots participation in legal advocacy (Bernstein et al. 2009; Cable et al. 2002). Levitsky (2006), in a study of gay, lesbian, bisexual, and transgender organizations in Chicago, finds that this movement s legal advocacy groups became largely isolated ( disconnected ) from the rest of the movement, and because of this, legal advocates were not able to fully represent the movement s diverse interests. Levitsky s research, however, also points to benefits that litigation offered to local LGBT activists, including legal expertise and public education on legal matters, as well as media attention and even increased recruitment into the movement given the publicity associated with local legal cases. Marshall s (2006) investigation of litigation in the environmental justice movement echoes these positive effects, as grassroots activists and lawyers were able to coordinate efforts and share resources in effective ways. In addition, McCann (1994) outlines a myriad of benefits,

136 Social Movements and the Court System including the grassroots mobilizing potential of litigation, even when the movement s legal advocates lose in court. Conclusion In the end, study of legal mobilization by social movement activists provides a rich area for social movement scholars, particularly in terms of explaining the following: (i) how and why movement actors make the decision to engage in litigation strategy and (ii) when and how those strategies can be successful. We know little about how politicized litigation shifts over time and varies across legal issue area, and we know little about how well strategic litigation contributes to positive (and negative) legal outcomes. We encourage social movement researchers more fully to consider activist litigation. With growing use of such methods by legal activists and thus the increasing democratization of the judicial arena (Epp 1998), it is important to understand its place in contentious politics. Short Biographies Holly J. McCammon is a professor of sociology at Vanderbilt University. She studies the US women s movement and is currently examining feminist litigation since 1970. She has also investigated the woman suffrage movement and efforts by women in the first half of the 20th century to enact law allowing women to serve as jurors. Her work has been published in the American Journal of Sociology, American Sociological Review, Gender & Society, Mobilization, Social Forces, andsocial Problems. In 2012, her book, The US Women s Jury Movements and Strategic Adaptation: A More Just Verdict, was published by Cambridge University Press. Her research has been funded by the National Science Foundation and the American Association of University Women. Currently, she edits the American Sociological Review. She holds a BA from Purdue University and a PhD from Indiana University. Allison R. McGrath is a graduate student in the Department of Sociology at Vanderbilt University. Her areas of interest include gender, feminism, bodies and embodiment, social movements, and race/ethnicity. Her dissertation research investigates factors that inf luence feminist organizations tactical choices. Drawing on comparison cases of two transnational feminist organizations Femen and SlutWalk her project examines ways in which these two groups strategically utilize the body during acts of protest. Allison holds a BA from Western Washington University and an MA from Vanderbilt University. Note * Correspondence address: Holly J. McCammon, Department of Sociology, PMB 351811, Vanderbilt University, Nashville, TN 37235, USA. E-mail: holly.mccammon@vanderbilt.edu References Albiston, Catherine R. and Laura Beth Nielsen. 2013. Funding the Cause: How Public Interest Law Organizations Fund their Activities and Why It Matters for Social Change. Law & Social Inquiry 39: 62 95. Andersen, Ellen Ann. 2005. Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor, MI: University of Michigan Press. Baker, Carrie N. 2008. The Women s Movement against Sexual Harassment. New York: Cambridge University Press. Barclay, Scott and Shauna Fisher. 2006. Cause Lawyers in the First Wave of Same Sex Marriage Litigation. Pp. 84 100 in Cause Lawyers and Social Movements, edited by Austin Sarat and Stuart A. Scheingold. Stanford, CA: Stanford University Press. Barkan, Steven E. 1980. Political Trials and Resource Mobilization: Towards an Understanding of Social Movement Litigation. Social Forces 58: 944 61.

Social Movements and the Court System 137 Bernstein, Mary, Anna-Maria Marshall and Scott Barclay. 2009. The Challenge of Law. Pp. 1 17 in Queer Mobilizations: LGBT Activists Confront the Law, edited by Scott Barclay, Mary Bernstein and Anna-Maria Marshall. New York: New York University Press. Bernstein, Mary. 2013. Perry and the LGBTQ Movement. New York University Review of Law and Social Change 37: 23 8. Black, Donald. 1973. The Mobilization of Law. Journal of Legal Studies 2: 125 49. Boutcher, Steven A. 2010. Mobilizing in the Shadow of the Law: Lesbian and Gay Rights in the Aftermath of Bowers v. Hardwick. Research in Social Movements, Conflict and Change 31: 175 205. Boutcher, Steven A. 2013. Lawyering for Social Change: Pro Bono Publico, Cause Lawyering, and the Social Movement Society. Mobilization 18: 179 96. Brooks, Peter and Paul Gewirtz. 1996. Law s Stories: Narrative and Rhetoric in the Law. New Haven, CT: Yale University Press. Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley, CA: University of California Press. Burstein, Paul. 1991. Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity. American Journal of Sociology 96: 1201 25. Burstein, Paul and Kathleen Monaghan. 1986. Equal Employment Opportunity and the Mobilization of Law. Law & Society Review 20: 355 88. Cable, Sherry, Donald W. Hastings and Tamara Mix. 2002. Different Voices, Different Venues: Environmental Racism Claims by Activists, Researchers, and Lawyers. Human Ecology Review 9(1): 26 42. Campbell, Amy Leigh. 2003. Raising the Bar: Ruth Bader Ginsburg and the ACLU Women s Rights Project. Lexington, KY: Xlibris. Coglianese, Cary. 2001. Social Movements, Law, and Society: The Institutionalization of the Environmental Movement. University of Pennsylvania Law Review 150: 85 118. De Fazio, Gianluca. 2012. Legal Opportunity Structure and Social Movement Strategy in Northern Ireland and the Southern United States. International Journal of Comparative Sociology 53: 3 22. Delgado, Richard. 1989. Storytelling for Oppositionists and Others: A Plea for Narrative. Michigan Law Review 87: 2411 41. Dorf, Michael S. and Sidney Tarrow. 2014. Strange Bedfellows: How and Anticipatory Countermovement Brought Samesex Marriage into the Public Arena. Law & Social Inquiry 39: 449 73. Epp, Charles R. 1990. Connecting Litigation Levels and Legal Mobilization: Explaining Interstate Variation in Employment Civil Rights Litigation. Law and Society Review 24(1): 145 63. Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press. Epstein, Lee and Jack Knight. 2004. Courts and Judges. Pp. 170 94 in The Blackwell Companion to Law and Society, edited by Austin Sarat. Malden, MA: Blackwell Publishing. Epstein, Lee and Joseph F. Kobylka. 1992. The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill, NC: University of North Carolina Press. Eskridge, William N. 2001. Channeling Identity-Based Social Movements and Public Law. Michigan Law Review 100(8): 2062 407. Felstiner, William L. F., Richard L. Abel and Austin Sarat. 1980. The Emergence and Transformation of Disputes: Naming, Blaming, Claiming. Law and Society Review 15: 631 54. Fisher, Shauna. 2009. It Takes (at Least) Two to Tango. Pp. 207 30 in Queer Mobilizations: LGBT Activists Confront the Law, edited by Scott Barclay, Mary Bernstein and Anna-Maria Marshall. New York: New York University Press. Galanter, Marc. 1974. Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change. Law and Society Review 9: 95 160. George, Tracey E. and Lee Epstein. 1991. Women s Rights Litigation in the 1980s: More of the Same? Judicature 74: 314 21. Ginsburg, Ruth Bader, Gillian Metzger and Abbe Gluck. 2013. A Conversation with Justice Ruth Bader Ginsburg. Columbia Journal of Gender and Law: Ginsburg Symposium Issue 25: 6 29. Greenberg, Jack. 2004. Crusaders in the Courts: Legal Battles of the Civil Rights Movement. New York: Twelve Tables Press. Haines, Herbert H. 1984. Black Radicalization and the Funding of Civil Rights: 1957 1970. Social Problems 32: 31 43. Handler, Joel F. 1978. Social Movements and the Legal System: A Theory of Law Reform and Social Change. New York: Academic Press. Hilbink, Thomas. 2006. The Profession, the Grassroots and the Elite: Cause Lawyering for Civil Rights and Freedom in the Direct Action Era. Pp. 145 63 in Cause Lawyers and Social Movements, edited by Austin Sarat and Stuart A. Scheingold. Stanford, CA: Stanford University Press. Hilson, Chris. 2002. New Social Movements: The Role of Legal Opportunity. Journal of European Public Policy 9: 238 55. Jackson, Bernard S. 1988. Law, Fact, and Narrative Coherence. Merseyside: Deborah Charles Publications.

138 Social Movements and the Court System Jenkins, Jeffery A. and Justin Peck. 2013. Building toward Major Policy Change: Congressional Action on Civil Rights, 1941 1950. Law and History Review 31: 139 98. Kerber, Linda K. 2002. Writing Feminist Justice: Writing Our Own Rare Books. Yale Journal of Law and Feminism 14: 429 51. Levitsky, Sandra. 2006. To Lead with Law: Reassessing the Influence of Legal Advocacy Organizations in Social Movement. Pp. 145 63 in Cause Lawyers and Social Movements, edited by Austin Sarat and Stuart A. Scheingold. Stanford, CA: Stanford University Press. Maney, Gregory M., Lynne M. Woehrle and Patrick G. Coy. 2005. Harnessing and Challenging Hegemony: The US Peace Movement after 9/11. Sociological Perspectives 48: 357 81. Marshall, Anna-Maria. 2006. Social Movement Strategies and the Participatory Potential of Litigation. Pp. 164 81 in Cause Lawyers and Social Movements, edited by Austin Sarat and Stuart A. Scheingold. Stanford, CA: Stanford University Press. McAdam, Doug. 1996. Conceptual Origins, Current Problems, Future Directions. Pp. 23 40 in Comparative Perspectives on Social Movements, edited by Doug McAdam, John D. McCarthy and Mayer N. Zald. New York: Cambridge University Press. McCammon, Holly J. 2012. The U.S. Women s Jury Movements and Strategic Adaptation: A More Just Verdict. New York: Cambridge University Press. McCammon, Holly J., Courtney Sanders Muse, Harmony D. Newman and Teresa M. Terrell. 2007. Movement Framing and Discursive Opportunity Structures: The Political Successes of the US Women s Jury Movements. American Sociological Review 72: 725 49. McCammon, Holly J. and Melinda D. Kane. 1997. Shaping Judicial law in the Post-World War II Period: When is Labor s Legal Mobilization Successful? Sociological Inquiry 67: 275 98. McCann, Michael W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago, IL: University of Chicago Press. McCann, Michael. 2004. Law and Social Movements. Pp. 506 22 in The Blackwell Companion to Law and Society, edited by Austin Sarat. Malden, MA: Blackwell Publishing. McCann, Michael. 2006. Law and Social Movements: Contemporary Perspectives. Annual Review of Law and Social Science 2: 17 38. McCarthy, John D. and Mayer N. Zald. 1977. Resource Mobilization and Social Movements: A Partial Theory. American Journal of Sociology 82: 1212 41. Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness among Working-class Americans. Chicago, IL: University of Chicago Press. Meyer, David S. and Steven A. Boutcher. 2007. Signals and Spillover: Brown v. Board of Education and Other Social Movements. Perspectives on Politics 5: 81 93. Meyer, David S. and Suzanne Staggenborg. 1996. Movements, Countermovements, and the Structure of Political Opportunity. American Journal of Sociology 101: 1628 60. Milner, Neal. 1986. The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation Groups. Law & Policy 8: 105 29. Monahan, John and Laurens Walker. 1986. Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law. University of Pennsylvania Law Review 134: 477 517. O Connor, Karen. 1980. Women s Organizations Use of the Courts. Lexington, MA: Lexington Books. O Connor, Karen and Lee Epstein. 1983. Beyond Legislative Lobbying: Women s Rights Groups and the Supreme Court. Judicature 67: 134 43. Pedriana, Nicholas. 2006. From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women s Movement in the 1960s. American Journal of Sociology 111: 1718 61. Pedriana, Nicholas. 2009. Intimate Equality: The Lesbian, Gay, Bisexual, and Transgender Movement s Legal Framing of Sodomy Laws in the Lawrence v. Texas Case. Pp. 52 75 in Queer Mobilizations: LGBT Activists Confront the Law, edited by Scott Barclay, Mary Bernstein and Anna-Maria Marshall. New York: New York University Press. Pierceson, Jason. 2013. Same-sex Marriage in the United States: The Road to the Supreme Court. Lanham, MD: Rowmanand Littlefield Publishers. Polletta, Francesca. 2000. The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961 1966. Law and Society Review 34: 367 406. Ringsmuth, Eve M., Amanda C. Bryan and Timothy R. Johnson. 2012. Voting Fluidity and Oral Argument on the US Supreme Court. Political Research Quarterly 66: 429 40. Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago, IL: University of Chicago Press. Rubin, Edward L. 2001. Passing through the Door: Social Movement Literature and Legal Scholarship. University of Pennsylvania Law Review 150: 1 83. Samuels, Suzanne U. 2004. First among Friends: Interest Groups, the US Supreme Court, and the Right to Privacy. Westport, CT: Praeger.

Social Movements and the Court System 139 San Miguel, Guadalupe, Jr. 1987. Let All of Them Take Heed : Mexican Americans and the Campaign for Education Equality in Texas, 1910 1981. Austin, TX: University of Texas Press. Sarat, Austin and Stuart Scheingold. 1998. Cause Lawyering: Political Commitments and Professional Responsibility. New York: Oxford University Press. Sarat, Austin and Stuart Scheingold. 2006. Cause Lawyers and Social Movements. Stanford, CA: Stanford Law and Politics. Scheingold, Stuart A. 1974 [2004]. The Politics of Rights: Lawyers, Public Policy, and Political Change. Ann Arbor, MI: University of Michigan Press. Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press. Silverstein, Helena. 1996. Unleashing Rights: Law, Meaning, and the Animal Rights Movement. Ann Arbor, MI: University of Michigan Press. Snow, David A. and Robert D. Benford. 1988. Ideology, Frame Resonance, and Participant Mobilization. International Social Movement Research 1: 197 217. Snow, David A., E. Burke Rochford, Jr., Steven K. Worden and Robert D. Benford. 1986. Frame Alignment Processes, Micromobilization, and Movement Participation. American Sociological Review 51: 464 81. Stobaugh, James E. and David A. Snow. 2010. Temporality and Frame Diffusion: The Case of the Creationist/Intelligent Design and Evolutionist Movements from 1925 to 2005. Pp. 34 55 in The Diffusion of Social Movements: Actors, Mechanisms, and Political Effects, edited by Rebecca Kolins Givan, Kenneth M. Roberts and Sarah A. Soule. New York: Cambridge University Press. Stolberg, Sheryl Gay. 2013. In Fight for Marriage Rights, She s Our Thurgood Marshall. New York Times March 27, p. A19. Stryker, Robin, Danielle Docka-Filipek and Pamela Wald. 2012. Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co-production of Law and Science. Law and Social Inquiry 37: 777 814. Sunstein, Cass R., David Schkade and Lisa Michelle Ellman. 2004. Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation. Virginia Law Review 90: 301 54. Tushnet, Mark V. 1987. The NAACP s Legal Strategy against Segregated Education, 1925 1952. Chapel Hill, NC: University of North Carolina Press. Vanhala, Lisa. 2012. Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK. Law & Society Review 46: 523 56. Wasby, Stephen L. 1995. Race Relations Litigation in an Age of Complexity. Charlottesville, VA: University of Virginia Press. Ziegler, Mary. 2012. The Terms of the Debate: Litigation, Argumentative Strategies, and Coalitions in the Same-sex Marriage Struggle. Florida State University Law Review 39: 467 510.