"We're Not Breaking the Law. We are Exercising our Citizen's Right to Enforce it": Organizers, Litigation Strategies, and Movement Legal Remedies

Abstract

In this dissertation, I explore why activists and organizers pursue litigation strategies to achieve social change in the face of three daunting hurdles: (1) legal procedures are lengthy, costly, and all-consuming; (2) legal claiming is based on ambiguous language, almost always inadequate to describe social ills; and (3) even a legal victory’s results are uncertain because of the judicial branch’s lack of enforcement power. Therein lies the puzzle this dissertation seeks to address: Given inherent constraints in pursuing litigation strategies that make costs high, and success rates low, why do actors seeking social change pursue litigation strategies and judicial intervention? My findings lead me to argue that activists and organizers often pursue litigation strategies when (1) the underlying political process makes administrative intervention politically undesirable or fraught with political stonewalling and interference and (2) rights claiming relies on new, poorly defined rights. These two factors combined create lasting limitations—both formal and informal—in the exercising of state authority to enforce these new rights. Under these circumstances, mobilizing the law might be the only viable option to achieve the sought-after social change. While the two conditions, to any degree, are necessary, they are insufficient as the decision to pursue litigation strategies ultimately lies with organizers and their organizational capacity. Further, I argue that, given the conditions listed above, this shift to judicial intervention allows activists and organizers to (1) move their agenda past destructive political stalemates, (2) define the social and political ills they seek to reform on their terms, and (3) be the ones to enforce the judicial remedy they helped shape. This framework, the movement legal remedies framework, centers the analysis on advocates whose harm is at the root of the investigated legal harm and the nuanced and complex reasons organizers use litigation strategies.