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. The Article proceeds in four parts. Part I introduces the notion of community triage as a means of addressing the impoverished and segregated aftermath of urban development in a cluster of postindustrial inner cities. Part II examines the First Wave of anti-poverty campaigns launched by pioneering legal services and public interest lawyers and their inchoate community triage models. Part III surveys the Second Wave of anti-poverty campaigns pressed by more client- and community-centered legal services and public interest lawyers and their alternative community triage paradigms. Part IV appraises the Third Wave of anti-poverty campaigns kindled by a new generation of legal services and public interest lawyers and their site-specific community triage approaches in the fields of community economic development, environmental justice, immigration, low-wage labor, and municipal equity in order to discern legal-political lessons of inner-city advocacy and organizing. Taken together, the four parts forge a larger legal-political vision imagined and reimagined daily by a new generation of social movement activists and scholars—a protean vision of community-based law reform tied to clinical practice, empirical research and experiential reflection about law and lawyers in action.
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. This mobilization included a mix of community organizing, litigation, policy and media advocacy, and direct action tactics. Lawyers supported movement-centered social change campaigns as counsel to existing organizations and to the undocumented youth groups that grew, evolved, and multiplied during this period. 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 and the implications of that repertoire in theorizing about resistance to legality and the place of law and lawyering in social movement activism.
Much of the debate about race and police violence against African Americans center on a question about causation: What precisely causes police violence against African Americans? For some, the answer is decidedly simple: rogue police officers acting outside of the boundaries of the law. For others, the answer is far more complex and implicates a number of structural problems, including racial inequality. Typically, both accounts marginalize the role of law. The rogue cop story highlights bad apples, not bad laws; and the structural racial inequality story generally excludes or diminishes the role of law as a structural force that contributes to police violence.
This Article puts the law back on the table—not as the only, or even the most, important variable contributing to police violence against African Americans, but as a factor that we still ought to take quite seriously. More precisely, the Article explains how a particular area of Fourth Amendment law—stop-and-frisk jurisprudence—facilitates police violence against African Americans.
The point of the departure for this Article is a theoretical model that explains the persistence of police violence against African Americans. The Article then describes how stops and frisks fit into that framework. In the context of the discussion, the Article challenges the standard account of Terry v. Ohio, the case that constitutionalized stop-and-frisk, as an opinion in which Chief Justice Warren split the proverbial baby. The Article contends that Justice Warren was no Solomon; he gave the baby to the government in the blanket of reasonable suspicion, a burden of proof that is lower than probable cause. Making matters worse, the Chief Justice largely dismissed concerns about race. More precisely, he professed powerlessness to address the very social problem his opinion exacerbated—police targeting of African Americans and their communities.
Central to the Article is the claim that the reasonable suspicion problem in Terry is not just that Justice Warren authorized police officers to stop-and-frisk people when officers have reasonable suspicion that their or someone else’s safety is in jeopardy. The problem is also that the Chief Justice did not expressly prohibit police officers from using reasonable suspicion to stop-and-question people when officers have no concerns about their or anyone else’s safety. Scholars have paid scant attention to this latter dimension of Justice Warren’s analysis, a dimension that paved the way for stop-and-question to become a core feature of Fourth Amendment law. The Article argues that, in addition to further 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. The frequency of those engagements is one of the factors that overexposes African Americans 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. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, the 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 within American democracy while still maintaining a distinction between law and politics.
Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born.
The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns.
In this Article, I argue 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, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage.
In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments.
The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships. These pivot points include:
- The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach;
- The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and
- The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage.
This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability.
Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as was so often claimed? This Article questions assumptions about consensus and constitutionalism that undergird claims about judicial backlash, and explores some constructive functions of conflict in our constitutional order.
The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order. Constitutional culture, on this account, includes the understandings about role that guide interactions among citizens and officials who disagree about the Constitution’s meaning. Analyzing the long-running conflict over same-sex marriage with attention to these role-based understandings leads us differently to evaluate the power and limits of judicial review.
In this Article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The 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. Even so, Obergefell has not ended debate over marriage, but instead has channeled it into new forms. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture.
A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order.
The prominence of Black Lives Matter in American society today signals the revitalization of alternative forms of participatory democracy—from localized community organizing to widespread social movements—as political expression among racial minorities. For social movement lawyers, this historical moment demands an urgent clarification as to their role and the strategies they should undertake: How should lawyers connect their preexisting advocacy with the 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, a statewide system that entraps low-income communities of color in cycles of poverty and involvement in the criminal justice system, this Comment proposes a new theory—rebellious social movement lawyering—to resolve these questions. Rebellious social movement lawyering contemplates an active role for lawyers in movements, so long as they are guided by two principles: first, that social movements are necessary to achieve structural social change; and second, that the participation and leadership of grassroots community members, more than professionals and formal social justice organizations, is necessary to sustain such movements. The strategies deployed by rebellious social movement lawyers must be fluid and flexible, ranging from traditional legal devices to confrontational demonstrations, with each decision stemming from community collaboration and the lawyer’s self-questioning as to how a proposed tactic contributes to building the social movement on the one hand, and to enhancing grassroots participation and democracy on the other.
Rebellious social movement lawyering is meant both as a theoretical intervention in rebellious lawyering, movement lawyering, and Critical Race scholarship, and as a methodology to guide public interest legal practitioners. In grounding my theory in a concrete case study, I hope that practitioners across other areas of public interest law will recalibrate their own advocacy as rebellious social movement lawyers working collaboratively to challenge the underlying structures producing material harms for their clients.
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.
The limited capacity of juveniles to make good decisions on their own—based on
centuries of common sense and empirically supported in recent decades by abundant
scientific research—informs almost every field of legal doctrine. Recent criminal justice
reforms have grounded enhanced protections for youth at punishment and as criminal
suspects on their limited cognitive abilities and heightened vulnerability. One area
of criminal procedure doctrine lags behind this legal, scientific, and social consensus.
Despite historical recognition of the need for special protections for interrogated youth,
current law regarding the waiver of the rights to silence and to counsel at interrogation
predominantly treats juvenile suspects like adults. As a result, courts regularly admit
statements by juveniles that empirical research consistently concludes are not the result of knowing, intelligent, and voluntary waivers of constitutional rights. This not only under enforces their rights, but also raises the risk of wrongful convictions.
This Article considers whether interrogation law should correct course by incorporating
a rule akin to contract law’s centuries-old infancy doctrine, which permits juveniles to
void a contract and be relieved of agreements that they may not have fully understood
or that were ill-advised. Permitting individuals to retract uncounseled Miranda
waivers elicited by law enforcement while they were juveniles would, like the infancy
doctrine, protect juveniles from both crafty adults as well as their own immaturity and
vulnerability. This is especially important for decisions made under stressful conditions,
such as custodial interrogation by law enforcement, that exacerbate juveniles’ cognitive
impairments and vulnerabilities. The rule would bring interrogation law into alignment
with the longstanding recognition of juveniles’ limited decisionmaking capacities, as well
as modern developmental science and Supreme Court criminal justice jurisprudence
premised on the idea that juveniles require enhanced protections. While retractable
Miranda waivers would come with law enforcement costs, they would ensure greater
respect for juvenile suspects’ dignity while maintaining their autonomy to make informed decisions about their rights.
Because of a commitment to the concept of individual culpability, holding someone
responsible for the wrongdoing of another is a relatively rare occurrence in American
jurisprudence. However, this Article reveals a significant, yet largely unacknowledged,
source of such liability: conjugal liability. Conjugal liability occurs when one spouse or
intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.
Within these domains, conjugal liability is deployed for a variety of laudable purposes,
such as the prevention of harm to third parties, the deterrence of drug or other criminal
activity, and the expansion of creditor’s remedies. However, conjugal liability is a
deeply problematic way of achieving these goals. First, in operation, it is profoundly
gendered, most often holding wives and girlfriends responsible for the wrongdoing of
their male intimate partners. Second, in many instances, conjugal liability is unmoored
from traditional notions of culpability, and is arguably a form of guilt by association.
Third, conjugal liability flies in the face of the constitutional right to freedom of intimate
association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and an underlying wrong, as opposed to merely a connection between an intimate partner and a wrongdoer.