This Article offers a defense of outsider, legal-political intervention and community triage in inner-city anti-poverty campaigns under circumstances of widespread urban social disorganization, public and private sector neglect, and nonprofit resource scarcity. In mounting this defense, the Article revisits the roles of lawyers, nonprofit legal services organizations, and university-housed law school clinics in contemporary anti-poverty, civil rights, and social justice movements, in part by chronicling the emergence of a faith-based municipal equity movement in Miami, Florida.
As immigration reform initiatives driven by established advocacy organizations in Washington, D.C., were successively defeated in the late mid to late 2000s, movement-centered organizations and newly created formations of undocumented youth mobilized against the federal-local immigration enforcement regime of the Bush and Obama administrations. Drawing on media, scholarly, and first person accounts, this article describes the campaigns that constituted the anti-enforcement mobilization between 2009 and 2012, with particular focus on the range of roles played by lawyers.
This Article explains how a particular area of Fourth Amendment law—stop-and-frisk jurisprudence—facilitates police violence against African Americans. The Article challenges the standard account of Terry v. Ohio— the case that constitutionalized stop-and-frisk—and argues that, in addition to eroding the probable cause standard on which Fourth Amendment law has historically rested, the constitutionalization of stop-and-question enables police officers to target African Americans with little to no justification, overexposing them to the possibility of violence.
In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. Why has this happened? To answer the question, this article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change while still maintaining a distinction between law and politics.
Obergefell’s national mandate for marriage equality became possible because marriage equality advocates set out to change social and constitutional meanings by winning over moveable middle voters in ballot question elections. Thus, a new variation on popular constitutionalism was born. The article argues that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns.
Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as was so often claimed? The article argues that the Supreme Court’s decision in Obergefell was possible not simply because public opinion changed, but also because struggle over the courts helped change public opinion and forge new constitutional understandings. The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order.
How should lawyers connect their preexisting advocacy with a broader social movement? Must lawyers be relegated to the background, or might they assume an active role that enhances the leadership of grassroots community members within the movement? What are concrete tools lawyers might deploy in advancing the struggle? Through a case study of challenging traffic court debt in South Los Angeles, this Comment proposes a new theory—rebellious social movement lawyering—to resolve these questions.
This Article explores courts’ ability to restrict occupational licensing regulations at the state and local level. In recent years, governments have extended licensing requirements well beyond their traditional boundaries. The literature criticizes these requirements as protectionist measures that stifle new entry, entrench inequality, and threaten the emerging sharing economy. The harder question, however, is whether these new requirements are illegal. This Article argues that they are, but that challengers should be using different doctrines to confront them. Current legal challenges depend on constitutional and antitrust law doctrines, both of which have doctrinal and normative limitations. Constitutional doctrines require a revival of Lochner to be effective, while antitrust law is doctrinally limited and expensive to enforce. Accordingly, I make the novel claim that courts should apply administrative law doctrines to scrutinize and strike down irrational licensing regulations. Administrative law principles are more likely to succeed and are more easily reconciled with both current doctrine and legislative supremacy. The Article therefore provides courts with a viable doctrinal toolkit to scrutinize licensing regimes without resorting to a local Lochner approach that is less practically effective and that raises concerns about courts’ democratic legitimacy. Because administrative law doctrines provide more credible legal threats, they are also more likely to generate political pressure for reform.