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Law and Social Movements [1 ed.]
 0754624978, 9780754624974

Table of contents :
Series Preface
1 Michael W. McCann (1991), ‘Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application’
2 Gerald N. Rosenberg (1996), ‘Positivism, Interpretivism, and the Study of Law’
3 Michael McCann (1996), ‘Causal Versus Constitutive Explanations (or, On the Difficulty of Being so Positive ... )’
4 John Brigham (1988), ‘Right, Rage, and Remedy: Forms of Law in Political Discourse’
5 Francesca Polletta (2000), ‘The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966’
6 Lisa Hajjar (2001), ‘Human Rights in Israel/Palestine: The History and Politics of a Movement’
7 Jayanth K. Krishnan and Kevin R. den Dulk (2001), ‘So Help Me God: A Comparative Study of Religious Interest Group Litigation’
8 Katharina C. Heyer (2002), ‘The ADA on the Road: Disability Rights in Germany’
9 Jonathan Goldberg-Hiller and Neal Milner (2003), ‘Rights as Excess: Understanding the Politics of Special Rights’
10 Austin T. Turk (1976), ‘Law as a Weapon in Social Conflict’
11 Paul Burstein (1991), 'Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity
12 Susan M. Olson (1995), ‘Comparing Women’s Rights Litigation in The Netherlands and the United States’
13 Robert L. Kidder and Setsuo Miyazawa (1993), ‘Long-Term Strategies in Japanese Environmental Litigation’
14 Ki-young Shin (2004), ‘Fufubessei Movement in Japan: Thinking about Women’s Resistance and Subjectivity’
15 Michael R. Anderson (1987), ‘Law and the Protection of Cultural Communities: The Case of Native American Fishing Rights’
16 Steven E. Barkan (1984), ‘Legal Control of the Southern Civil Rights Movement’
17 Cary Coglianese (2001), ‘Social Movements, Law, and Society: The Institutionalization of the Environmental Movement’
18 Alan Hunt (1990), ‘Rights and Social Movements: Counter-Hegemonic Strategies’
19 Kimberle Williams Crenshaw (1988), ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’
20 Susan B. Boyd (1999), ‘Family, Law and Sexuality: Feminist Engagements’
21 Joel F. Handler (1993), 'Postmodernism, Protest, and the New Social Movements’
22 Balakrishnan Rajagopal (2003), ‘International Law and Social Movements: Challenges of Theorizing Resistance’
Name Index

Citation preview


Law and Social Movements

Edited by Michael McCann

ISBN 978-0-7546-2497-4

,!7IA7F4-gcejhe!  an informa business

The International Library of Essays in Law and Society

Law and Social Movements

The International Library of Essays in Law and Society Series Editor: Austin Sarat Titles in the Series: Law and Religion Gad Barzilai

Law and Social Movements Michael McCann

Police and Policing Law Jeannine Bell

Colonial and Post-Colonial Law Sally Merry

Law and Society Approaches to Cyberspace Paul Schiff Bennan

Social Science in Law Elizabeth Mertz

Law and Families Susan B. Boyd and Helen Rhoades

Sexuality and Identity Leslie J. Moran

Rhetoric of Law Marianne Constable and Felipe Gutterriez

Law and Poverty Frank Munger

Law in Social Theory Roger Cotterrell

Rights Laura Beth Nielsen

Ethnography and Law Eve Darian-Smith

Governing Risks Pat O'Malley

International Law and Society Laura Dickinson

Lawyers and the Legal Profession, Volumes I and II Tanina Rostain

Legal Lives of Private Organizations Lauren Edelman and Mark C. Suchman

Capital Punishment, Volumes I and II Austin Sarat

Courts and Judges Lee Epstein

Legality and Democracy Stuart A. Scheingold

Consciousness and Ideology Patricia Ewick

The Law and Society Canon Carroll Seron

Prosecutors and Prosecution Lisa Frohmann

Popular Culture and Law Richard K. Sherwin

Intellectual Property William T. Gallagher

Law and Science Susan Silbey

Human Rights, Law and Society Lisa Hajjar

Immigration Susan Sterett

Race, Law and Society Ian Haney Lopez

Gender and Feminist Theory in Law and Society Madhavi Sunder

The Jury System Valerie P. Hans

Procedural Justice, Volumes I and II TomR. Tyler

Regulation and Regulatory Processes Robert Kagan and Cary Coglianese

Trials Martha Merrill Umphrey

Crime and Criminal Justice William T. Lyons, Jr.

Law and Social Movements

Edited by

Michael McCann University of Washington, USA

First published 2006 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © 2006 Michael McCann. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data Law and social movements. - (The international library of essays in law and society) 1. Sociological jurisprudence 2. Social movements I. McCann, Michael W., 1952340.1' l 5 Library of Congress Cataloging-in-Publication Data Law and social movements I edited by Michael McCann. p. cm. - (The international library of essays in law and society) Includes bibliographical references. ISBN 0-7546-2497-8 (alk. paper) 1. Sociological jurisprudence. 2. Social movements. I. McCann, Michael W., 1952- II. Series. K370.L386 2006 340'.l 15-dc22

ISBN 9780754624974 (hbk)


Contents Acknowledgements Series Preface Introduction PART I 1

2 3

4 5

6 7

8 9

lX Xl


Michael W. McCann (1991), 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application', Studies in Law, Politics, and Society, 11, pp.225-54. Gerald N. Rosenberg (1996), 'Positivism, Interpretivism, and the Study of Law', Law and Social Inquiry, 21, pp. 435-55. Michael McCann (1996), 'Causal Versus Constitutive Explanations (or, On the Difficulty of Being so Positive ... )', Law and Social Inquiry, 21, pp. 457-82.



3 33 55


John Brigham (1988), 'Right, Rage, and Remedy: Forms of Law in Political Discourse', Studies in American Political Development, 2, pp. 303-16. Francesca Polletta (2000), 'The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966', Law and Society Review, 34, pp. 367-406. Lisa Hajjar (2001), 'Human Rights in Israel/Palestine: The History and Politics of a Movement', Journal of Palestine Studies, 30, pp. 21-38. Jayanth K. Krishnan and Kevin R. den Dulk (2001), 'So Help Me God: A Comparative Study of Religious Interest Group Litigation', Georgia Journal of International and Comparative Law, 30, pp. 233-75. Katharina C. Heyer (2002), 'The ADA on the Road: Disability Rights in Germany', Law and Social Inquiry, 27, pp. 723-62. Jonathan Goldberg-Hiller and Neal Milner (2003), 'Rights as Excess: Understanding the Politics of Special Rights', Law and Social Inquiry, 28, pp. 1075-118.


97 137

155 199



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10 II 12 13 14 I5 I6 I7

Austin T. Turk (I 976), 'Law as a Weapon in Social Conflict', Social Problems, 23,pp.276-91. Paul Burstein (1991 ), 'Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity', American Journal of Sociology, 96,pp. 1201-25. Susan M. Olson (1995), 'Comparing Women's Rights Litigation in The Netherlands and the United States', Polity, 28, pp. 189-215. Robert L. Kidder and Setsuo Miyazawa (1993), 'Long-Term Strategies in Japanese Environmental Litigation', Law and Social Inquiry, 18, pp. 605-27. Ki-young Shin (2004), 'Fufubessei Movement in Japan: Thinking about Women's Resistance and Subjectivity', Frontiers of Gender Studies, 2, pp. 107-14. Michael R. Anderson (I 987), 'Law and the Protection of Cultural Communities: The Case of Native American Fishing Rights', Law and Policy, 9, pp. 125-42. Steven E. Barkan (1984), 'Legal Control of the Southern Civil Rights Movement', American Sociological Review, 49, pp. 552-65. Cary Coglianese (2001 ), 'Social Movements, Law, and Society: The Institutionalization of the Environmental Movement', University of Pennsylvania Law Review, 150, pp. 85-118.


I8 I9 20 21 22


301 327 355 379 387 405 419


Alan Hunt (1990), 'Rights and Social Movements: Counter-Hegemonic Strategies', Journal of Law and Society, 17, pp. 309-28. Kimberle Williams Crenshaw (I 988), 'Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law', Harvard Law Review, 101, pp. 1331-87. Susan B. Boyd (I 999), 'Family, Law and Sexuality: Feminist Engagements', Social and Legal Studies, 8, pp. 369-90. Joel F. Handler (1993), 'Postmodernism, Protest, and the New Social Movements', Law and Society Review, 26, pp. 697-731. Balakrishnan Rajagopal (2003), 'International Law and Social Movements: Challenges of Theorizing Resistance', Columbia Journal of Transnational Law, 41,pp.397-433.

Name Index


455 475 533 555 591 629

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. American Sociological Association for the essay: Steven E. Barkan (1984), 'Legal Control of the Southern Civil Rights Movement', American Sociological Review, 49, pp. 552-65. Blackwell Publishing for the essays: Francesca Polletta (2000), 'The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966', Law and Society Review, 34, pp. 367-406. Copyright © 2000 Law and Society Association; Michael R. Anderson (1987), 'Law and the Protection of Cultural Communities: The Case of Native American Fishing Rights', Law and Policy, 9, pp. 125-42. Copyright © 1987 Blackwell Publishing; Alan Hunt (1990), 'Rights and Social Movements: Counter-Hegemonic Strategies', Journal of Law and Society, 17, pp. 309-28. Copyright© 1990 Blackwell Publishing; Joel F. Handler (1993), 'Postmodernism, Protest, and the New Social Movements', Law and Society Review, 26, pp. 697-731. Copyright© 1993 Law and Society Association. Cambridge University Press for the essay: John Brigham (1988), 'Right, Rage, and Remedy: Forms of Law in Political Discourse', Studies in American Political Development, 2, pp. 30316. Elsevier for the essay: Michael W. McCann (1991), 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application', Studies in Law, Politics, and Society, 11, pp. 225-54. Frontiers of Gender Studies (F-GENS) for the essay: Ki-young Shin (2004), 'Fufubessei Movement in Japan: Thinking about Women's Resistance and Subjectivity', Frontiers of Gender Studies, 2, pp. 107-14. Georgia Journal of International and Comparative Law for the essay: Jayanth K. Krishnan and Kevin R. den Dulk (2001), 'So Help Me God: A Comparative Study of Religious Interest Group Litigation', Georgia Journal of International and Comparative Law, 30, pp. 233-75. Harvard Law Review for the essay: Kimberle Williams Crenshaw (1988), 'Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law', Harvard Law Review, 101, pp. 1331-87. Susan M. Olson (1995), 'Comparing Women's Rights Litigation in The Netherlands and the United States', Polity, 28, pp. 189-215. Copyright© 1995 Susan M. Olson.


Law and Social Movements

Penn Law, University of Pennsylvania Law School for the essay: Cary Coglianese (2001 ), 'Social Movements, Law, and Society: The Institutionalization of the Environmental Movement', University of Pennsylvania Law Review, 150, pp. 85-1I8. The University of California Press for the essays: Lisa Hajjar (2001 ), 'Human Rights in Israel/ Palestine: The History and Politics of a Movement', Journal of Palestine Studies, 30, pp. 2138; Austin T. Turk (1976), 'Law as a Weapon in Social Conflict', Social Problems, 23, pp. 27691. The University of Chicago Press for the essays: Gerald N. Rosenberg (I 996), 'Positivism, Interpretivism, and the Study of Law', Law and Social Inquiry, 21, pp. 435-55; Michael McCann (I 996), 'Causal Versus Constitutive Explanations (or, On the Difficulty of Being so Positive ... )', Law and Social Inquiry, 21, pp. 457-82; Katharina C. Heyer (2002), 'The ADA on the Road: Disability Rights in Germany', Law and Social Inquiry, 27, pp. 723-62; Jonathan Goldberg-Hiller and Neal Milner (2003), 'Rights as Excess: Understanding the Politics of Special Rights', Law and Social Inquiry, 28, pp. 1075-118; Paul Burstein (1991), 'Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity', American Journal of Sociology, 96, pp. 1201-25; Robert L. Kidder and Setsuo Miyazawa (1993), 'Long-Term Strategies in Japanese Environmental Litigation', Law and Social Inquiry, 18, pp. 605-27. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface The International Library of Essays in Law and Society is designed to provide a broad overview of this important field of interdisciplinary inquiry. Titles in the series will provide access to the best existing scholarship on a wide variety of subjects integral to the understanding of how legal institutions work in and through social arrangements. They collect and synthesize research published in the leading journals of the law and society field. Taken together, these volumes show the richness and complexity of inquiry into law's social life. Each volume is edited by a recognized expert who has selected a range of scholarship designed to illustrate the most important questions, theoretical approaches, and methods in her/his area of expertise. Each has written an introductory essay which both outlines those questions, approaches, and methods and provides a distinctive analysis of the scholarship presented in the book. Each was asked to identify approximately 20 pieces of work for inclusion in their volume. This has necessitated hard choices since law and society inquiry is vibrant and flourishing. The International Library of Essays in Law and Society brings together scholars representing different disciplinary traditions and working in different cultural contexts. Since law and society is itself an international field of inquiry it is appropriate that the editors of the volumes in this series come from many different nations and academic contexts. The work of the editors both charts a tradition and opens up new questions. It is my hope that this work will provide a valuable resource for longtime practitioners of law and society scholarship and newcomers to the field.

AUSTIN SARAT William Nelson Cromwell Professor of Jurisprudence and Political Science Amherst College

Introduction A great deal of scholarship in the last half of the twentieth century contributed to our understanding of how law matters for the politics of social movements. Two rather different intellectual traditions have proved most directly relevant to the topic. Sociolegal scholars have provided numerous insights into the ways in which prevailing legal norms constitute and legitimate social hierarchy as well as the complex implications of legal claims and tactics of groups challenging those hierarchies and injustices. Indeed, sociolegal scholars have contributed many types of study - of judicial impact, interest group litigation, the politics of rights, civil disputing, and everyday resistance, to name just a few - that are highly relevant to understanding the relationships between law and social movements. However, most of this scholarship has paid, at best, a passing attention to the extensive body of academic study focusing directly on social movement politics. In similar fashion, social movement specialists have developed elegant analytical frameworks for studying struggles, and in the process they have documented many case studies in which legal rights claims, tactics and actors have figured prominently. Yet these scholars have rarely directly analysed whether, or to what extent, law does or does not matter for the struggles at stake and have generally remained quite uninformed by sophisticated sociolegal analysis. Consequently, scholarship that directly joins the rich literatures analysing the two topics, law and social movements, has been relatively scarce and specialized until recently (Rubin, 2001). This general disjuncture is as true for studies of the United States as it is for studies of nationallevel and transnational activism around the world. An important line of new research, most of it initiated by social scientists working in the law and society tradition, began to bridge this gap between the two areas of scholarship in the 1990s. The most direct engagement was inaugurated by scholars advancing new approaches to group 'legal mobilization' politics linking legal and social movement literatures (McCann, 1994; Silverstein, 1996; Brigham, 1997; Goldberg-Hiller, 2002; Paris, 2004; Dudas, 2005). Other scholars similarly integrated the insights of social movement analysts in reviving older traditions of sociolegal scholarship concerning judicial impact on social reform struggles (Rosenberg, 1991) and individual legal mobilization in civil disputing (Nielsen, 2000; Marshall, 2003). An almost entirely new area of research regarding 'cause lawyering' (Sarat and Scheingold, 200 l) developed, with many of the dozens of scholars likewise connecting legal study to social movement theory (Sarat and Scheingold, forthcoming). At the time of writing, it is fair to say that social movement theory has now been integrated in various degrees into many types of sociolegal research. Conversely, however, there has been far less flow of influence in the other direction, as most social movement scholars still seem relatively uninterested in sociolegal scholarship. This collection of journal essays brings together many of the most important authors working on the topic of law and social movements. The remainder of this Introduction will clarify the core categories at stake, outline additional areas of scholarly inquiry relevant to the topic but not included here, and then summarize the essays that follow and their contributions to the field.


Law and Social Movements

Law and Social Movements: Defining Concepts Conceptualizing Law

Much of the debate regarding how law matters for social movements derives from quite divergent ways of understanding and studying law itself. Most generally, when we refer to 'the law' we imply different types of phenomenon. Sometimes we refer to official legal institutions, such as courts or administrative bureaucracies; sometimes to legal officials or elites, such as judges, bureaucrats or lawyers; and sometimes to legal norms, rules, or discourses that structure practices in and beyond official legal institutions (Thompson, I 975). Most recent studies grant attention to all three usages, although often in somewhat unclear or unsystematic ways. Legal realists and behaviouralists, for example, tend to identify law in quite formal, determinate, positivist terms. Law, in this account, matters to the degree that discrete official institutional actions cause direct, immediate and tangible effects on targeted behaviours or are, conversely, shaped by discrete causal factors in society (Rosenberg, I 991; Bogart, 2002). Measured by such a standard, legal institutions and officials typically appear to provide powerful support for the status quo but feeble resources for challenging the prevailing order. 1 By contrast, interpretive, process-oriented legal mobilization approaches - many of which are represented in this volume - are typically much more expansive in conceptualizing law, especially in terms of the legal norms and discursive logics at stake in many social struggles. The interpretive perspective begins by rejecting conventional positivist understandings of law largely limited to discrete, determinate rules or policy actions. Instead, law is understood as particular traditions of knowledge and communicative practice. The focus is not simply on behaviour, but on the intersubjective power of legal discourses, conventions and practices in constructing meaning. As such, legal discourses and symbols intersect with, and are expressive of, broader ideological formations within societies (Hunt, Chapter I 8, this volume; McCann, I 994; McCann and March, I 996). This interpretive focus on legal discourses and practices has not diminished attention to actors and institutional contexts, but rather has reoriented understandings of institutions themselves as routinized forms of practice, meaning-making, interaction and justification. Such an understanding of law as knowledge and linguistic practice calls attention to law's power as a constitutive convention of social life (Brigham, I 996). This constitutive power is ambiguous. On the one hand, legal knowledges to some degree shape, or prefigure, the identities and practical activities of subjects in society. Learned legal conventions mould the very terms of citizen understanding, expectation and interaction with others. Law is thus a significant part of how we learn to live and act as citizens in society. Legal constructs shape our very imagination about social possibilities. Among the most important of liberal legal conventions constituting both national and transnational relations are what we call rights those legal forms that designate the distribution of legitimate social entitlements and burdens among citizens. On the other hand, law is also understood to be a resource that citizens utilize to structure relations with others, to advance goals in social life, to formulate rightful claims, and to negotiate disputes where interests, wants or principles collide. Legal knowledges can therefore matter as both an ends and means of action; law provides both normative principles and strategic resources for the conduct of social struggle. Most specific legal practices and

Law and Social Movements


claims draw on relatively settled, little-contested entitlements, of course. But at other times citizens often interpret laws in different ways, reshaping law in the process to fit shifting visions of need and circumstance; in this respect, we reconstitute to some degree the law that constitutes us. In this sense, legal conventions are understood as a quite plastic and malleable medium; legal constructions are routinely employed to reconfigure relations, redefine entitlements and formulate aspirations for collective living (Merry, 1990). Of course, this indeterminacy or plasticity of legal conventions is limited. Legal practices carry with them their own inherent constraints on what is accepted as legally sensible or compelling, and governing authorities often back up these constraints with organized force. This is where the role of official legal institutions and state or transnational elites, like judges, matter. Official institutions function to 'police' the range of law's legitimate meanings, to enforce limits on those meanings and to use selectively organized violence against those who violate official readings of law or who are outside law's inherent protections. But law also thrives outside of such direct police power intervention, and outside of courtrooms in particular, where official legal meanings rule only indirectly as a possibility of intervening force to settle disputes or enforce particular legal practices. Indeed, this possibility - either implicit or explicitly threatened - that official third parties (such as judges or police) might intervene tends to shape social interaction and bargaining relations far more than actual direct official interventions (Galanter, 1983). It is law's complex life throughout society - within workplaces, corporate board rooms, families, neighbourhoods and communities, as well as throughout public institutional spaces of national, transnational and international politics - under the 'shadow' of official rule on which most conflict-based, process-oriented studies focus attention. Indeed, it is here that the primary project of legal mobilization analysis is aimed - that is, to analyse the constitutive role of legal rights both as a strategic resource and as a constraint, as a source of empowerment and disempowerment, for movement struggles to contest and reconstruct the terms of social relations and power (see Scheingold, 1989; Silverstein, 1996). This understanding is especially important for appreciating the increasing power of human rights norms around the world, in polities and transnational or international arenas where authoritative legal institutions are often underdeveloped or contested. We will note later how behaviouralism and process-based interpretivism (especially legal mobilization) pose different approaches - grounded in different types of question, analytical mode, method and truth-claim - to the study of law and social movements. One reason why the latter approaches have become more familiar, it could be argued, is that they tend to parallel closely, and blend easily with, prevailing approaches to social movement analysis. Social Movements: Sketching the Boundaries of an Idea The core term 'social movements' is defined in quite variable ways by scholars, including specialists on the topic. Political scientist Charles Tilly's definition in a 1984 book is as useful as any. A social movement is a sustained series of interactions between power-holders and persons ... successfully claiming to speak on behalf of a constituency lacking formal representation, in the course of which those persons make publicly visible demands for changes in the distribution or


Law and Social Movements

exercise of power, and back those demands with public demonstrations of support. (Tilly, 1984, p. 306)

The problem with this definition, of course, is that it does not clearly distinguish social movements from interest groups, minority political parties, protesting mobs and other forms of collective action. Scholarly efforts have been made to differentiate social movements by what they want, whom they represent and what tactics they use - but few such efforts are entirely successful at an abstract level. The dilemma is exacerbated, further, by the fact that the organization and activities of what we call social movements often overlap with, grow out of, or transform into other forms of organization over time in complex, elusive ways. Despite these caveats, however, I will limit the range of activity referred to as 'social movements' for the purposes of this Introduction. Social movement activity here is identified broadly with social struggles of a particular type. First, social movements aim for a broader scope of social and political transformation than do more conventional political activities. While social movements may press for tangible short-term goals within the existing structure of relations, they are animated by more radical aspirational visions of a different, better society. Second, social movements often employ a wide range of tactics, as do parties and interest groups, but they are far more prone to rely on communicative strategies of information disclosure and media campaigns as well as disruptive 'symbolic' tactics, such as protests, marches, strikes and the like, that halt or upset ongoing social practices. One of the surprising findings of much research is that litigation and other seemingly conventional legal tactics can sometimes be fused with such disruptive forms of political expression. Law sometimes serves disorder as well as order (Lowi, I 97 I). Litigation can provide a form of, or forum for, 'rebellion' (Meranto, I 998), a lethal 'weapon' in social conflict (see Turk, Chapter 10, this volume). Third, social movements tend to develop from core constituencies of non-elites whose social position reflects relatively low degrees of wealth, prestige or political clout. While movements may find leadership or alliance among elites and powerful organizations, the core 'constituent population' of social movements tends to be 'the nonpowerful, the nonwealthy and the nonfamous' (Zirakzadeh, 1997). It is worth noting that this definition can include reactionary or highly conservative as well as 'progressive' or left-leaning movements for egalitarian social justice, although the overwhelming proportion of academic study concerns only the latter groups. Fourth, the discussion below includes traditional modernist social movements focusing on class relations and material politics as well as new (or postmodern) social movements that emphasize a broad range of principled social justice commitments, including especially human rights (Beuchler and Cylke, I 997). Finally, this volume addresses social movements that develop within particular nations, generally focused on states as targets or means of transforming societies, as well as transnational movements for human rights, environmental change, peace and the like. Studies of transnational activism have developed rapidly in recent years and tend to rely on dynamic process-based approaches similar to those emphasized here (Keck and Sikkink, 1998). Indeed, cooperation among transnational and domestic national social movements on human rights issues is one of the most important manifestations of contemporary legal mobilization politics (Sarat and Scheingold, 2001).

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Cognate Areas of Inquiry: Important Roads Left off of the Map I noted at the start of this Introduction that many types of scholarly inquiry have indirectly contributed to the study of law and social movements, even though they do not directly integrate contemporary social movement theory and legal analysis. Since these types of study are mostly excluded from this volume, a brief survey seems warranted for the benefit of readers interested in the broader topic. By far the greatest degree of attention to relevant literatures is found in the law and society scholarship, which is likely to comprise the primary readership of this volume. Perhaps the most relevant cognate studies are by sociolegal scholars in the I 970s and I 980s who directly addressed the topic of law and social change. Stuart Scheingold's I 974 The Politics of Rights (recently reissued in 2004) is clearly the most influential and still most important work. In addition, Joel Handler's Social Movements and the Legal System (1978) was the first significant effort to integrate social movement theory into legal analysis, although prevailing social movement theory at the time was much more narrowly rationalistic and individualistic than most subsequent approaches. Michael McCann's Taking Refonn Seriously (1986) and Susan Olson's Clients and Lawyers (1984) each built on the earlier studies by Scheingold and Handler, addressing fundamental questions about legal mobilization strategies and visions in generalizable ways. Essays by Milner (I 986), Bruun (I 982), Hunt (1990-see Chapter I 8, this volume), Handler (I 992), McCann (1993), McCann and Silverstein (1997), Meranto (I 998), Pedriana (2004) and others further interrogated rights mobilization and its complex implications for collective struggle. Important books by Abel (I 995), Santos (I 995) Barzilai (2003) and Hajjar (2005) have developed sophisticated studies of struggles for social change waged through legal claims, tactics and institutions beyond the United States. A second tradition of study focused on individual, rather than group, disputing, but this tradition contributed to, and later merged with, much scholarship on law and social movements. This included classic studies in diverse contexts by legal anthropologists such as Abel (1973), Galanter (I 974), Felstiner (I 974), Jacob (1969) and especially, Nader (I 969) in the I 960s and I 970s. Later behavioural studies in the I 970s offered a more analytically rigorous, multistage model of disputing that proved especially important. The Civil Litigation Research Project was critical to this scholarship (Miller and Sarat, I 980-8 I; Felstiner et al., I 980-8 I), as was a host of other related essays (Mather and Yngvesson, I 980-8 I; Zemans, I 983; Galanter, I 983; Kritzer, Vidmar and Bogart, I 99 I). Also in the late I 970s, Critical Legal Studies scholarship developed into an important tradition that shaped and interacted with studies of law and social movements. While hardly a unitary movement, most CLS scholars (see Kairys, I 982) blended realist debunking with neoMarxist ideological analysis to expose the institutional and normative constraints of law impeding progressive political action or impacts. CLS scholarship generated further criticism from Critical Race theorists, including, most prominently, Derrick Bell (1987), Kimberle Williams Crenshaw (1988 - Chapter 19 this volume) and Patricia Williams (1991) (see also Delgado et al., I 985). An explosion of feminist legal scholarship likewise contributed in important ways to the analysis of law and social movements (see, for example, Bartlett and Kennedy, 1991). All three movements contributed important ideas, although they tended to focus on case law or personal narratives and offered little systematic focus on the organizational context of struggle.


Law and Social Movements

The engagement of individual disputing study and Critical Legal Studies attention to ideology produce yet another tradition of studies into 'legal consciousness'. Kristin Bumiller's inventive study of The Civil Rights Society (I 988) broke much ground and is still relevant to scholarship on law and social movements. Subsequent studies - by Merry (I 990), Yngvesson (1988), Greenhouse, Yngvesson and Engel (1994), McCann and March (I 996), Ewick and Sil bey (1998), Feldman (2000), Nielsen (2000), Gilliom (2001 ), Engel and Munger (2003), Fleury-Steiner and Nielsen (2005) - have contributed to this innovative subject and, again, very directly engaged scholarship on law and social movements. At a different level, the rapidly proliferating literature on 'cause lawyering' (Sarat and Scheingold, 2001) has also drawn on, and contributed to, studies of social movement legal advocacy in important ways. Fourth, various types of scholarship from political scientists have proved highly relevant. First are studies of interest group litigation (Bussiere, I 998; Lawrence, I 990; Forbath, I 99 I; Kessler, I 990; Melnick, I 994; Epp, I 998; Cichowski, 2002; Morag-Levine, 2001; Paris, 2005). Expanding literature on human rights advocacy around the world is surely quite pertinent to the study of law, social movements and social change (Cleary, I 997; Keck and Sikkink, 1998; Guidry, Kennedy and Zald, 2000; Merry, 2001; Dezalay and Garth, 2001). Moreover, studies of 'judicial impact' have provided a familiar, if limited, angle from which to study law and social movement activity. The most important works are Rosenberg (199 I), Johnson and Canon (I 984) and Bogart (2002), although many earlier works remain significant. Professor Lauren Edelman's significant contributions (1990, I 992) to the difficult politics of legal implementation also deserve a mention. Fifth, a new literature has developed that directly builds on legal mobilization and social movements - that regarding cultural and political 'backlash' against allegedly 'special' rights claims and marginalized rights claimants (Goldberg-Hiller, 2002; Haltom and McCann, 2004; Dudas, 2005). Finally, the copious scholarly literature on social movement theory deserves attention. I mention just a few studies here. Doug McAdam's path-breaking, visionary book Political Process and the Development of Black Insurgency, 1930-1970 (1982) is perhaps the most influential and widely cited classic study, and his reconstruction of his approach with Sidney Tarrow and Charles Tilly in Dynamics of Contention (2001) currently represents the state of art theorizing. Earlier original writings by Tarrow (1983, I 994) and Tilly (I 978, I 984) also remain influential. The Blackwell Companion to Social Movements (Snow, Soule and Kriesi, 2004) and several other edited collections (Beuchler and Cylke, I 997; McAdam, McCarthy and Zald, I 996; Guidry, Kennedy and Zald, 2000) are valuable contributions of essays on a variety of topics by leading scholars in the field. Much research, specifically on the themes of movement 'framings' of issues, has proved especially influential and is highly relevant to legal analysis (see Gamson and Modigliani, I 987; Gamson and Meyer, I 996; Snow and Benford, I 992; Benford, I 993; Benford and Snow, 2000; Snow et al., I 986; Snow, 2004; Zald, I 996). Finally, comparative cross-national study of social movements has generated a fair amount of attention (see Ferree et al., 2002).

The Collection of Essays The essays included in this volume have been selected according to a variety of criteria. 2 First, only essays that directly addressed the legal aspects of struggles waged by identifiable social

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movements were considered. It is important to emphasize at the outset that this is the single most important factor that distinguished the pool of candidates eligible for this volume from the hundreds of essays quite relevant to scholars working in the general subject matter, such as those noted above. Second, specific essays were selected for their distinctive contributions to theorizing about law and social movements. In other words, essays were chosen because they represent important generalizable theoretical logics of inquiry or angles of analysis into the legal dimensions of social movement activity. The summary outline of the essays below will emphasize the overall conceptual framework guiding my approach to the topic and the specific contributions of the essays to that enterprise. Third, an effort was made to provide some diversity regarding various types of social issues and aggrieved populations that have been implicated in social movement struggles. Thus, movements for rights of minority racial groups, rights of indigenous peoples, various women's rights issues, gay and lesbian rights, rights of the disabled and environmental causes, as well as some reflections on 'new social movements', have been included in the volume. This is hardly an exhaustive list of movements that emerged over the last half-century; labour politics lamentably receives only limited attention, for example. But the list is generally representative of the causes that have received the most scholarly study. Finally, considerable effort has been made to include studies of movement activity in different geographic regions around the world - including Canada, the Netherlands, Germany and various other European nations, Japan, India and other Asian nations, South Africa. Nevertheless, roughly half the essays focus primarily on movements in the United States, reflecting in part the fact that scholarship on law and social movements has arguably been dominated by attention to that country. 3 Moreover, various features of state and society in the United States have contributed to experimentation with legal tactics by social movements. In many ways, and not least because of American influence as a globalizing force, this experience with legal mobilization politics may become increasingly familiar around the world, rendering American scholarship on the subject increasingly relevant. It is not surprising that many scholars of national and transnational movement politics have looked to the mixed outcomes of American legal rights-based movements as models to follow, avoid or at least learn from. In sum, the essays in this book that focus on the United States should be of considerable interest and significance for scholars studying movement politics in various venues around the world. The overall organization of the article collection reflects to a large extent the prevailing logics that have developed from the synthesis of legal mobilization analysis and social movement theory.

Analytical Frameworks and Methodological Principles Part I begins with my own essay (Chapter I) outlining a general process-based theory of legal mobilization politics initiated by social movements. The essay emphasizes that both individual models of legal mobilization and social movement theory view disputing as dynamic political processes that are usefully disaggregated into analytically discrete, if typically interrelated, phases or stages. Drawing on preliminary evidence from my study of the gender-based wage equity movement in the United States to illustrate my points, the essay outlines a generalizable analytical approach to studying the complex dynamics of how law shapes, and is reshaped


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through, political struggle. A review essay by Gerald N. Rosenberg (Chapter 2) follows that respectfully summarizes Rights at Work, the book I later published on the subject (1994) and its achievements. However, Rosenberg, who had previously written a widely recognized book demonstrating why legal tactics are a 'hollow hope' for social reformers (1991), also poses some fundamental methodological and analytical challenges to the 'bottom-up', interpretivist legal mobilization approach that I develop. Chapter 3 presents my subsequent response that further clarifies and develops the differences between positivist, court-centred models and post-positivist, decentred frameworks for analysing law and social change. This published debate has provided a benchmark for many sociolegal scholars interested in social movements over the last decade, and thus the essays are reproduced here in accessible form. The remainder of the book is organized into three parts, each of which covers a discrete dimension or phase of social movement disputing activity previewed in Chapter I. Legal Framing and Claiming by Social Movements Part II comprises six essays that address the early stages of movement development in which collective injuries are named, claims for remedy are framed and visions of social transformation are proposed. Each of these essays emphasizes to some degree the legal language of 'rights' in which movements often articulate their demands, but the essays also raise a variety of issues about challenges, limitations and adaptations of a politics grounded in rights. Chapter 4, by John Brigham, outlines a general framework for understanding about how legal discourse is 'formative' of social movements. 'Political language links legal form to the practices of these interpretive communities, and the practices can be seen in talk about purposes, in the style of discussion, and in political strategies' (p. 87). He discusses and develops examples of three particular forms of law in society - right, rage and remedy. Francesca Polleta follows up, in Chapter 5, with a related argument about rights claiming among southern civil rights movement activists in the United States during the I 960s. Polletta specifically challenges the scepticism of Critical Legal Studies scholars, arguing that rights discourse not only facilitated effective mobilization of movement supporters for grassroots activity, but also effectively pushed organizers to widen their agenda to institutional venues, aggrieved populations and substantive issues not originally targeted. Moreover, rights-claiming contributed to what movement scholars called a 'master frame' that endured as a formative force for subsequent political struggles by exploited groups. In Chapter 6 Lisa Hajjar develops a parallel perspective about the emergence of a human rights movement in Israel and Palestine. She shows how activists have used a variety of strategies to voice, promote and enforce rights claims in 'counter-hegemonic struggles', raising questions along the way about human rights as a 'Western' and 'foreign' convention, about rights organizations and about the project of constructing a regime grounded in the rule of law and a 'culture of rights'. Jayanth K. Krishnan and Kevin R. den Dulk (Chapter 7) explore similar terrain in their study of litigation strategies by religious groups in the United States, Israel and India. Although, in some ways, their study addresses religious organizations in routine 'interest group' mode, their analysis borders on, and eases into, the terrain relevant for social movement politics. Moreover, their approach is relevant because they emphasize how the ideological world-views of law shared by religious activists shape their normative and

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strategic approaches to politics, supporting or discouraging their engagement with legal strategies. This is an important contribution in illustrating how legal claiming often reflects a complex encounter between intrinsically legal and extralegal ideational components. The last two essays in Part II embark on different paths exploring the contingent, complex and problematic character of rights claiming by social movements. Katharina C. Heyer (Chapter 8) creatively investigates the question of what happens to American models of disability rights when they go 'on the road' to other nations. Using a key German case study, she demonstrates that the discursive framework of legal rights was embraced to contest traditional framings of claims in Germany, but in the process rights frames themselves were re-examined and reconstructed into new forms and meanings. This essay contributes to an exciting area of inquiry about how movements around the world at once confirm the influence of American rights traditions, adapt those traditions to new cultural contexts and possibilities, and open up new forms of critical engagement in multiple cultural sites. In Chapter 9 Jonathan Goldberg-Hiller and Neal Milner develop a fascinating inquiry into how opponents of social movements representing marginalized citizens stigmatize the latter's claims as 'special rights' which violate supposedly universalistic conventions, invert relations between victimized minorities and majority populations, and thus reinforce dominant hierarchical relationships of governance. The authors explore the politics of backlash against special rights in three Hawaiian political struggles - same-sex marriage, leased land among condominium homeowners and claims of native Hawaiians. The essay's major contribution lies in showing how the language of law, and specifically of rights, is contested and can cut both ways, providing resources for both majorities and minorities, for both dominant and subaltern groups, for forces both defending and challenging the status quo. Legal Leveraging Power: Contestation, Containment, Cooptation Part III focuses on the strategic engagement and implications of legal rights mobilization. The subtitle highlights the politics of contestation over claims by movements within and beyond official legal institutions. These eight essays demonstrate how law can be a source of both challenging and sustaining order; legal strategies sometimes can disrupt the status quo and leverage social change, but legal processes also routinely work to contain and coopt movement challenges in ways that sustain the dominant social order. Chapter 10, an essay by Austin T. Turk, begins this section provocatively by challenging functionalist conceptions of law with a vision of 'law as power'. In short, law provides resources by which social groups and individuals initiate and sustain conflict over basic social values, arrangements and relationships. Turk does not incorporate social movement theory or develop the implications for a particular movement, but his general approach anticipates in clear terms premises at the heart of legal mobilization theory. Paul Burstein (Chapter 11) provides ample evidence of how legal strategies can challenge the status quo. His study provides evidence that litigation by women and minorities seeking equal employment opportunity facilitated movement organization and provided important governmental resources in battles over race and gender discrimination. The following three essays examine similar dynamics in contexts beyond the United States. In Chapter 12 Susan M. Olson compares patterns of litigation strategies for women's rights in the United States and the Netherlands. Despite differences in the formal institutional structure


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of courts and in access to legal representation by lawyers, Olson argues, the strategic choices and problems of litigation in the two national contexts are remarkably similar. Robert L. Kidder and Setsuo Miyazawa (Chapter I 3) then challenge conventional explanations of how Japan's culture of conflict avoidance and aversion to formal legal institutions ensures a hostile environment for environmental movement litigation. Their study outlines how a class-action lawsuit by Japanese air pollution victims became an effective resource for both short-term, well-planned tactical challenges and long-term movement struggle despite limited legal resources. Focusing particular attention on the role of lawyers in the environmental movement, the authors provide a perceptive institutional analysis that identifies similarities, as well as important differences, between legal and social structures in Japan and the United States. Kiyoung Shin follows in Chapter 14 by outlining a very different type of legal mobilization politics and social movement activity in Japan. If the environmental movement is well organized and carefully planned, the movement of women to challenge traditional family law is grounded in largely unorganized, uncoordinated, diffuse 'everyday' acts of mobilization and subversion in cultural spaces situated largely 'outside' formal state law. In other words, the fufubessei activists are reconstructing an alternative feminist family legal order that is posing an increasingly powerful challenge to traditional patriarchal norms embedded in official law. This type of cultural analysis, focused more on the contestation and construction of legal meaning than on identifying cultural causal variables, represents an exciting dimension of new social movement theorizing by sociolegal scholars. The final three essays in Part III examine ways in which law can work to challenge, contain and coopt social movements. In Chapter I 5 Michael R. Anderson explores how the efforts of American Indians to preserve traditional cultural practices, as well as material resources, through successful litigation over fishing rights in Washington State ironically accelerated technological and competitive forces dividing the tribes internally and accelerating the erosion of common culture. In short, an apparent major legal victory by native 'outsiders' actually fueled the imposition of individualizing, commoditized, market-based capitalist relations that characterized the dominant order of the United States. Chapter I 6 is Steven E. Barkan's classic study of how white Southerners effectively used conventional legal tactics to harass, contain and defeat black civil rights advocates in various cities. Drawing extensively on social movement studies of the civil rights movement, this essay very powerfully shows how legal institutions, tactics and conventions 'cut both ways', serving as resources both to challenge the existing order from subaltern groups and to fortify the status quo against the challengers. Cary Coglianese concludes the section (Chapter I 7) with a study of the classic ways in which legal tactics facilitating challenges by outsiders routinely work to institutionalize and integrate the challengers over time, transforming movement impulses for continued change into a struggle to maintain an altered status quo. His essay provides an overview of this pattern of transformation from legally structured conflict to cooptation and 'institutionalization' experienced by the American environmental movement from the I 970s through the I 990s. Law, Change and Hegemony: Assessing Legal Mobilization Politics Finally, Part IV provides a series of essays assessing the counter-hegemonic implications of legal mobilization tactics and, in particular, rights claiming by social movements. The five

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essays individually and collectively offer a decidedly mixed, often tragic and ironic view about how legal rights advocacy figures into the politics of social movements. Alan Hunt's classic essay (Chapter I 8), linking contemporary debates about legal mobilization to Antonio Gramsci's theories of 'counter-hegemonic' struggle, starts the section. This is followed by Kimberle Williams Crenshaw's essay (Chapter I 9), which advances a parallel argument, using the legacy of the American civil rights movement as an extended case study. This well-known contribution to Critical Race Theory challenges contemporary critics of rights mobilization on both the left and right, arguing that racism is the fundamental problem in American society, and that liberal rights traditions provide one of the few effective, if limited, resources for challenging racial hierarchy. Susan B. Boyd (Chapter 20) then advances a contending critique that feminist rights-based advocacy and scholarship fails to account adequately for the material inequalities of capitalist organization. While her primary point of reference is movement struggles in Canada, the issues with which she grapples have broad significance for struggles around the world. Chapter 2 I features Joel F. Handler's controversial Presidential Address at the I 992 Law and Society Association annual meetings that challenged the politics of postmodern theorizing about law and power as well as of 'new' social movements. This address stimulated a set of lively responses in print (for example, McCann, I 992) and continues to be much debated among sociolegal scholars. The final essay by Balakrishnan Rajagopal (Chapter 22) expands the scope of the manifestations of social movement mobilization of law to the international level. As he puts it, 'international law and institutions provide important arenas for social movement action, as they expand the political space available for transformative politics' (p. 626). These new spaces of contestation will continue to present expanding challenges for both scholars and for activists throughout the next century. Directions for Future Research Given the emphasis on the inherent indeterminacy of law and politics that informs most recent scholarship, it should not be surprising that I conclude by elaborating briefly on both the vast opportunities and the great need for new research on the topic of law and social movements. My points can be stated briefly, because they all aim to encourage the continued growth of the type of research projects that have already been pioneered by and are proliferating among scholars.


Sociolegal theory and social movement theory, I noted at the outset, have been joined relatively infrequently in scholarly study. One goal of this collection has been to demonstrate the value of empirical and theoretical inquiry that connects these two traditions. Sociolegal scholars would benefit from continued efforts to integrate current theorizing by social movement scholars, and social movement scholarship would benefit greatly by increased familiarity with the leading currents of law and society research. Legal mobilization politics has very rapidly become a familiar activity of social movements around the world. More comparative cross-national and transnational study is needed on the topic. Such case studies can provide the foundations for engaging with, building on, challenging and transcending existing theorizing developed largely out of the American experience.




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It has been noted several times in this Introduction how legal mobilization politics seems

both to depend on and contribute to robust, independent courts, judges and legal professions. This relationship deserves considerable empirical and theoretical exploration in a variety of national, subnational, and transnational institutional contexts. Such critical literature has suggested not only that legal mobilization produces a relatively feeble form of politics, but also that it tends to generate counter-mobilizations of unique scale and success. These questions about the efficacy and legacy of legal mobilization deserve study in a variety of institutional and cultural contexts.

Notes It is easy to see why positivist scholars often end up as 'realists' who posit (or endeavour to demonstrate) that legal rules, principles, norms and discourses mask rather than embody 'real' motivations for behaviour. The realist project thus often leans toward explaining the gap between law's symbolic promises and actual impact by focusing on 'real' (that is, extralegal) causes of behaviour. 2 One requirement of the series in which this volume appears is that essays must have been published in a scholarly journal, thus excluding scores of chapters in original books and edited book collections. 3 No doubt all these perceptions reflect the limited, debatable purview of the US-anchored author.

References Abel, Richard L. (1973), 'A Comparative Theory of Dispute Institutions in Society', Law and Society Review, 8(2), pp. 217-347. Abel, Richard L. (1995), Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994, New York: Routledge. Bartlett, Katharine and Kennedy, Rosanne (eds) (1991), Feminist Legal Theory: Readings in Law and Gender, Boulder, CO: Westview Press. Barzilai, Gad (2003), Communities and Law: Politics and Cultures of Legal Identities, Ann Arbor, MI: University of Michigan Press. Bell, Derrick (1987), And We Are Not Saved: The Elusive Quest for Racial Justice, New York: Basic Books. Benford, Robert ( 1993), 'Frame Disputes Within the Nuclear Disarmament Movement', Social Forces, 71, pp. 677-701. Benford, Robert and Snow, David A. (2000), 'Framing Processes and Social Movements: An Overview and Assessment', Annual Review of Sociology, 26, pp. 611-39. Beuchler, Stephen M. and Cylke Jr, F. Kurt (eds) (1997), Social Movements: Perspectives and Issues, Mountain View, CA: Mayfield Publishing Co. Bogart, W.A. (2002), Consequences: The Impact of Law and Its Complexity, Toronto: University of Toronto Press. Brigham, John (1997), The Constitution of Interests: Beyond the Politics of Rights, New York: New York University Press. Bruun, Rita ( 1982), 'The Boldt Decision: Legal Victory, Political Defeat', Law and Policy Quarterly, 4, pp. 271-98. Bumiller, Kristin ( 1988), The Civil Rights Society: The Social Construction of Victims, Baltimore, MD: Johns Hopkins University Press. Bussiere, Elizabeth (1998), (Dis)Entitling the Poor: The Warren Court, Welfare Rights, and the American Political Tradition, Pennsylvania Park: University of Pennsylvania Press.

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Cichowski, Rachel (2002), "'No Discrimination Whatsoever": Women's Transnational Activism and the Evolution of European Sex Equality Policy', in N. Naples and A. Desai (eds), Women's Community Activism and Globalization, New York: Routledge. Cleary, Edward L. (1997), The Struggle for Human Rights in Latin America, Westport, CT: Praeger. Delgado, Richard et al. ( 1985), 'Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution', Wisconsin Law Review, 85, pp. 1359-404. Dezalay, Yves and Garth, Bryant G. (2001 ), 'Constructing Law out of Power: Investing in Human Rights as an Alternative Political Strategy', in A. Sarat and S. Scheingold (eds), Cause Lawyering and the State in the Global Era, Oxford: Oxford University Press. Dudas, Jeffrey (2005), 'In the Name of Equal Rights: "Special" Rights and the Politics of Resentment in Post-Civil Rights America', Law and Society Review, 39(4), pp. 723-58. Edelman, Lauren (1990), 'Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace', American Journal of Sociology, 95, pp. 1401-40. Edelman, Lauren ( 1992), 'Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law', American Journal of Sociology, 97, pp. 1531-76. Engel, David M. and Munger, Frank W. (2003), Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities, Chicago: University of Chicago Press. Epp, Charles (1998), The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, Chicago: University of Chicago Press. Ewick, Patricia and Silbey, Susan (1998), The Common Place of Law: Stories from Everyday Life, Chicago: University of Chicago Press. Feldman, Eric A. (2000), The Ritual of Rights in Japan: Law, Society, and Health Policy, Cambridge: Cambridge University Press. Felstiner, William L.F. (1974), 'Influences of Social Organization on Dispute Processing', Law and Society Review, 9, pp. 63-94. Felstiner, William, Abel, Richard and Sarat, Austin ( 1980-81 ), 'The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming ... ', Law and Society Review, 15, pp. 631-55. Ferree, Myra Marx, Gamson, William, Gerhards, Jiirgen and Rucht, Dieter (2002), Shaping Abortion Discourse: Democracy and the Public Sphere in Germany and the United States, Cambridge: Cambridge University Press. Fleury-Steiner, Benjamin and Nielsen, Laura Beth (2005), The New Civil Rights Research: A Constitutive Perspective, Burlington, VT: Ashgate/Dartmouth Press. Forbath, William E. (1991 ), Law and the Shaping of the American Labor Movement, Cambridge, MA: Harvard University Press. Galanter, Marc (1974), 'Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change', Law and Society Review, 9, pp. 95-160. Galanter, Marc (1983), 'The Radiating Effects of Courts', in K.D. Boyum and L. Mather (eds), Empirical Theories of Courts, New York: Longman, pp. 117-42. Gamson, William and Meyer, David S. (1996), 'Framing Political Opportunity', in Doug McAdam, John D. McCarthy and Mayer N. Zald (eds), Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings, Cambridge: Cambridge University Press, pp. 275-90. Gamson, William and Modigliani, Andre ( 1987), 'The Changing Culture of Affirmative Action', Research in Political Sociology, 3, pp. 137-77. Gilliom, John (2001 ), Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy, Chicago: University of Chicago Press. Goldberg-Hiller, J. (2002), The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, Ann Arbor, MI: University of Michigan Press. Greenhouse, Carol, Yngvesson, Barbara and Engel, David M. (1994), Law and Community in Three American Towns, Ithaca, NY: Cornell University Press. Guidry, John, Kennedy, Michael and Zald, Mayer N. (eds) (2000), Globalization and Social Movements: Culture, Power, and the Transnational Public Sphere, Ann Arbor, MI: University of Michigan Press. Hajjar, Lisa (2005), Courting Conflict: The Israeli Military Court System in the West Bank and Gaza, Berkeley, CA: University of California Press.


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Haltom, William and McCann, Michael (2004), Distorting the Law: Politics, Media, and the Litigation Crisis, Chicago: University of Chicago Press. Handler, Joel F. (1978), Social Movements and the Legal System: A Theory of Law Reform and Social Change, New York: Academic Press. Handler, Joel F. (1992), 'Postmodernism, Protest, and the New Social Movements', Law and Society Review, 26, pp. 697-731. Jacob, Herbert (1969), Debtors in Court, Chicago: Rand McNally. Johnson, Charles A. and Canon, Bradley C. (1984), Judicial Policies: Implementation and Impact, Washington, DC: Congressional Quarterly Press. Kairys, David (ed.) (1982), The Politics of Law: A Progressive Critique, New York: Pantheon. Keck, Margaret E. and Sikkink, Kathryn (1998), Activists Beyond Borders: Advocacy Networks in International Politics, Ithaca, NY: Cornell University Press. Kessler, Mark (1990), 'Legal Mobilization for Social Reform: Power and the Politics of Agenda Setting', Law and Society Review, 24, pp. 121-44. Kritzer, Herbert M., Vidmar, Neil and Bogart, W.A. (1991), 'To Confront or Not to Confront: Measuring Claiming Rates in Discrimination Grievances', Law and Society Review, 25, pp. 878-87. Lawrence, Susan (1990), The Poor in Court: The Legal Services Program and Supreme Court Decision Making, Princeton, NJ: Princeton University Press. Lowi, T.J. (1971), The Politics of Disorder, New York: Basic Books. McAdam, Doug (1982), Political Processes and the Development of Black Insurgency 1930-1970, Chicago: University of Chicago Press. McAdam, Doug, McCarthy, John D. and Zald, Mayer N. (eds) (1996), Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings, Cambridge: Cambridge University Press. McAdam, Doug, Tarrow, Sidney and Tilly, Charles (2001), Dynamics of Contention, Cambridge: Cambridge University Press. McCann, Michael W. (1986), Taking Reform Seriously: Critical Perspectives on Public Interest Liberalism, Ithaca, NY: Cornell University Press. McCann, Michael W. (1992), 'Resistance, Reconstruction, and Romance in Legal Scholarship', Law and Society Review, 26, pp. 733-49. McCann, Michael W. (1994), Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, Chicago: University of Chicago Press. McCann, Michael W. (2006), 'Law and Social Movements: Emerging Research Approaches', in Austin Sarat (ed.), A Law and Society Reader, London: Blackwell. McCann, Michael W. and March, Tracey (1996), 'Law and Everyday Forms of Resistance: A SocioPolitical Assessment', Studies in Law, Politics, and Society, 15, pp. 207-36. McCann, Michael and Silverstein, Helena (1997), 'The "Lure of Litigation" and Other Myths about Cause Lawyers', in Austin Sarat and Stuart Scheingold (eds), The Politics and Practice of Cause Lawyering, New York: Oxford University Press. Marshall, Anna-Maria (2003), 'Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment', Law and Social Inquiry, 28(3), pp. 659-90. Mather, Lynn and Y ngvesson, Barbara ( 1980-81 ), 'Language, Audience, and the Transformation of Disputes', Law and Society Review, 15(3-4), pp. 775-821. Melnick, R. Shep (1994), Between the Lines: Interpreting Welfare Rights, Washington, DC: Brookings Institution. Meranto, Oneida (1998), 'Litigation as Rebellion', in A. Costain and A. McFarland (eds), Social Movements and American Political Institutions, Lanham, MD: Rowman and Littlefield. Merry, Sally Engle ( 1990), Getting Justice and Getting Even: Legal Consciousness Among Working Class Americans, Chicago: University of Chicago Press. Merry, Sally Engle (2001), 'Rights, Religion, and Community: Approaches to Violence against Women in the Context of Globalization', Law and Society Review, 35, pp. 1301-50. Miller, Richard and Sarat, Austin ( 1980-81 ), 'Grievances, Claims, and Disputes: Assessing the Adversary Cultures', Law and Society Review, 15(3-4), pp. 525-66.

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Milner, Neal (1986), 'The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation', Law & Policy, 8, pp. 105-29. Morag-Levine, Noga (2001 ), 'The Politics of Imported Rights: Transplantation and Transformation in an Israeli Environmental Cause-Lawyering Organization', in Austin Sarat and Stuart Scheingold (eds), Cause Lawyering and the State in the Global Era, Oxford: Oxford University Press, pp. 334-53. Nader, Laura (1969), Law in Culture and Society, New York: Academic Press. Nielsen, Laura Beth (2000), 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens About Law and Street Harassment', Law and Society Review, 34, pp. 1055-90. Olson, Susan M. (1984), Clients and Lawyers: Securing the Rights of Disabled Persons, Westport, CT: Greenwood Press. Paris, Michael (2005), Educational Inequality on Trial: Legal Mobilization and the Politics of School Finance Reform, Cambridge: Cambridge University Press. Pedriana, Nicholas (2004), 'Help Wanted NOW: Legal Resources, the Women's Movement and the Battle over Sex-Segregated Job Advertisements', Social Problems, 51, pp. 182-201. Rosenberg, Gerald (1991), The Hollow Hope: Can Courts Bring About Social Change, Chicago: 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), pp. 1-83. Santos, Boaventura de Sousa (1995), Toward a New Common Sense: Law, Science, and Politics in the Paradigmatic Transition, New York: Routledge. Sarat, Austin and Scheingold, Stuart (eds), (2001), Cause Lawyering and the State in the Global Era, Oxford: Oxford University Press. Sarat, Austin and Scheingold, Stuart (forthcoming), Cause Lawyering and Social Movements, Palo Alto: Stanford University Press. Scheingold, Stuart A. (1989), 'Constitutional Rights and Social Change', in M.W. McCann and G. L. Houseman (eds), Judging the Constitution, Glenview, IL: Scott, Foresman and Little, Brown, pp. 73-91. Scheingold, Stuart A. (1994), The Politics of Rights: Lawyers, Public Policy, and Political Change, Ann Arbor, MI: University of Michigan Press. Silverstein, Helena (1996), Unleashing Rights: Law, Meaning, and the Animal Rights Movement, Ann Arbor, MI: University of Michigan Press. Snow, David A. (2004), 'Framing Processes, Ideology, and Discursive Fields', in David A. Snow, Sarah A. Soule and Hanspeter Kriesi (eds), The Blackwell Companion to Social Movements, Malden, MA: Blackwell Publishing, pp. 380--412. Snow, David A. and Benford, Robert D. ( 1992), 'Master Frames and Cycles of Protest', in Aldon Morris and Carol M. Mueller (eds), Frontiers in Social Movement Theory, New Haven, CT: Yale University Press, pp. 133-55. Snow, David A., Rochford, Jr, E. Burke, Worden, Steven K. and Benford, Robert D. (1986), 'Frame Alignment Processes, Micromobilization, and Movement Participation', American Sociological Review, 51, pp. 464-81. Snow, David A., Soule, Sarah A. and Kriesi, Hanspeter (eds) (2004), The Blackwell Companion to Social Movements, Malden, MA: Blackwell Publishing. Tarrow, Sidney (1983), Struggling to Reform: Social Movements and Policy Change During Cycles of Protest, Occasional Paper 15, Ithaca, NY: Center for International Studies, Cornell University. Tarrow, Sidney (1994), Power in Movement: Social Movements and Contentious Politics, Cambridge: Cambridge University Press. Thompson, E.P. (1975), Whigs and Hunters: The Origin of the Black Act, New York: Pantheon. Tilly, Charles ( 1978), From Mobilization to Revolution, Reading, MA: Addison-Wesley. Tilly, Charles (1984), 'Social Movements and National Politics', in C. Bright and S. Harding (eds), Statemaking and Social Movements, Ann Arbor, MI: University of Michigan Press. Trubeck, David M., Dezalay, Yves, Buchanan, Ruth R. and Davis, J.R. ( 1994), 'Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas', Case Western Law Review, 44, pp. 407-98. Williams, Patricia ( 1991 ), The Alchemy of Race and Rights, Cambridge, MA: Harvard University Press.


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Yngvesson, Barbara (1988), 'Making Law at the Doorway: The Clerk, The Court, and the Construction of Community in a New England Town', Law and Society Review, 22, pp. 409-48. Zald, Mayer N. ( 1996), 'Culture, Ideology, and Strategic Framing', in Doug McAdam, John D. McCarthy and Mayer N. Zald (eds), Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings, Cambridge: Cambridge University Press, pp. 261-74. Zemans, Frances Kahn (1983), 'Legal Mobilization: The Neglected Role of Law in the Political System', American Political Science Review, 77, pp. 690-703. Zirakzadeh, Cyrus E. (1997), Social Movements in Politics: A Comparative Study, London: Longman.

Part I Analytical Frameworks and Methodological Principles


Michael W. McCann

INTRODUCTION Social scientists over the last several decades have devoted considerable attention to analyzing the role of law, litigation, and lawyers in movements for social reform. 1 In general, the prevailing consensus on these issues has mirrored changes in the larger political culture. Most studies in the late 1950s and 1960s, for example, provided a generally optimistic view emphasizing the growing accessibility of courts to long marginalized groups such as racial minorities and the poor (Vose 1959; see Sarat 1985). By contrast, the bulk of scholarship published during the last fifteen years-a period when conservative forces in society have prevailed-has presented a strikingly more pessimistic perspective regarding the utility of litigation for advancing progressive social change in liberal capitalist society. One extensive body of literature, much of it emanating from the Critical Legal Studies movement, has critically analyzed the ideological biases of prevailing public and private law doctrines which


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redefine social conflicts in politically innocuous ways or exclude conflicts and claims altogether-all in support of status quo power relations (see Gabel 1984; Kelman 1987; McCana 1989). Another body of literature has focused on the institutional limitations and tradeoffs inherent in social reform-oriented litigation. These studies point out that the neediest groups of citizens typically lack the basic resources to employ litigation strategies (Bumiller 1988; Handler 1978; Kessler 1987), whereas those who can afford litigation have found it a limited and costly institutional tool that often fragments movement building efforts, discourages popular mobilization strategies, and emphasizes judicial victory over effective policy implementation and genuine social change (Handler 1978; Klare 1982a; McCann 1986; Milner 1986; Scheingold 1974). Much of my own published research-on the legalistic ideology of liberal public interest groups and on constitutional equality discourses-has paralleled and contributed to this latter body of critical scholarship. However, my recent research concerning the politics of sex-based wage equity (often labelled "comparable worth") reform has convinced me that there is reason to rethink this perspective and to subject the new critical mode itself to some measured criticism. 2 In particular, my work has led me to wonder whether the standards that we scholarly critics frequently invoke to measure "real" change are realistic and whether our commitments to debunking liberal myths do not distort our sensitivity to the aspirations and struggles of oppressed citizens in our s9ciety. In other words, I do not question that the prevailing critical posture has provided important insights about the social control functions of law that impede justice and democratic change in modern America; yet, I do fear that such a view may too easily ossify into a cynical "myth of non-rights" that is neither justified by historical experience nor helpful for confronting present political challenges (see Crenshaw 1988; Milner 1989; Villmoare 1985). My search for a more subtle, complex, and balanced perspective has led me to reconsider the insights of "legal mobilization" theory. This approach fully acknowledges that litigation alone rarely advances significant social change, but at the same time it recognizes that legal rights advocacy can in some circumstances provide a useful resource for social movement building and strategic political action. For example, my recent research provides copious evidence that, despite only very limited success in the courtroom, advocates of sex-based pay equity have effectively employed legal tactics to mobilize both an active reform constituency among women workers and significant bargaining leverage in negotiations with recalcitrant employers. The following pages will outline some major tenets of such a legal mobilization theory and sketch a generalizable research agenda of questions and issues derived from these basic premises. Throughout the discussion, brief summaries of findings from my own empirical work on pay equity reform politics will be offered to illustrate the potential value of, and variations on, such an approach. 3

Law and Social Movements Legal Mobilization and Social Reform Movements



LEGAL MOBILIZATION AND POLITICAL ADVOCACY: SOME BASIC PREMISES It is important to acknowledge at the outset that advocates of a "legal mobilization" approach have varied widely in both their theoretical framework and empirical applications. For example, much of the best known work has focused attention primarily on mobilization of the law by individuals seeking resolution of mostly "private" disputes (Black 1973; Lempert 1976; Zemans 1982, 1983). This work is valuable in many ways, but it has only limited relevance for analyzing organized social movement action seeking broad change in basic social policies and practices. Other scholars, by contrast, have developed the legal mobilization approach specifically to address social movements (Handler 1978; Milner 1986; Scheingold 1974, 1988). These important works figure prominently in the following pages, although they tend to be speculative or silent about some themes at the heart of my analysis. Finally, a host of other recent works on law and social movements have contributed ideas that parallel and enrich the legal mobilization perspective, but they do not explicitly align themselves with the model (Brigham 1987; Crenshaw 1988; Delgado et al. 1985; Galanter 1983; Minow 1987; Schneider 1986). Hence, the challenge undertaken in the following pages is to construct a workable framework for analyzing legal mobilization by social movements that builds on, synthesizes, and yet transcends the groundbreaking efforts of many others. Law as Social Practice

We take as our starting point the basic definition offered by Frances Zemans: "Law is ... mobilized when a desire or want is translated into a demand or an assertion of rights" ( 1983, p. 700). From this simple premise we can elaborate a number of themes that inform a broader and somewhat novel vision of law. For one th,ing, the legal mobilization approach emphasizes an understanding of law as identifiable traditions of symbolic practice. As Marc Galanter puts it, law should be analyzed more capaciously "as a system of cultural and symbolic meanings than as a set of operative controls. It affects us primarily through communication of symbols-by providing threats, promises, models, persuasion, legitimacy, stigma, and so on" (1983, p. 127; Bourdieu 1987). This does not mean that law is simply a set of abstract concepts informing our attitudes and preferences, however. Rather, discursive legal practices are viewed more fundamentally as constitutive of social relationships and practical activity among citizens (Harrington and Merry 1988; Klare 1979; Silbey 1985). This implies, on the one hand, that legal conventions to some degree prefigure social activity; inherited legal meanings shape the very terms of citizen understanding, aspiration, and interaction with others. E.P. Thompson's

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classic description of how law mediates class relations captures this dynamic well: class relations were expressed ... through the forms of law; and the law, like other institutions which from time to time can be seen as mediating (and masking) existent class relations ... has its own characteristics, its own independent history and logic of evolution ( 1975, p. 262).

Among the most important of these legal conventions, of course, is the respect for citizen rights designating the proper distribution of social burdens and benefits (Minow 1987; Scheingold 1974). On the other hand, it is important to understand that these inherited legal symbols and discourses provide relatively malleable resources that are routinely reconstructed as citizens consciously seek to advance their interests and designs in everyday life. In short, the inherently indeterminate character of legal discourses makes them a dynamic medium for both refiguring the terms of past settlements over legitimate expectations and expressing aspirations for new terms of entitlement. "'Rights' can give rise to 'rights consciousness' so that individuals and groups may imagine and act in light of rights that have not been formally recognized and enforced" by officials, notes Martha Minow (1987, p. 1867). Of course, such reconstructive activity is neither boundless nor "free." Growing out of learned practices, legally constituted ways of doing carry with them their own limitations, biases, and burdensome baggage. Legal "cultures provide symbols which can be manipulated by their members for strategic goals," agrees Sally Engle Merry, "but they also establish constraints on that manipulation" (1985, p. 60; Silbey 1985). Hence the primary project of the legal mobilization model outlined here: to analyze the constitutive role of legal rights claims as both a resource and a constraint for collective efforts to transform or "reconstitute" power-laden relationships among social groups. This particular conception of legal mobilization builds on several other assumptions. First, it is important to emphasize that legal practices and rights discourses are not limited to formal state forums. After all, official legal norms penetrate and structure the activity of everyday life among citizens even in those spaces we regard as most "private" and remote from the state. At the same time, symbolic resources of law are routinely mobilized by citizens negotiating exchanges or seeking to resolve disputes long before state officials become directly involved, if they are activated at all. "Efforts to create and give meaning to norms, through a language of rights, often and importantly occur outside formal legal institutions such as courts ... (and constitute) an activity engaged in by nonlawyers as well as by lawyers and judges," affirms Minow (1987, p. 1862; Eisenberg 1976; Mnookin and Kornhauser 1979). Indeed, this shift in the focus of legal analysis away from the initiative of state officials and to the

Law and Social Movements Legal Mobilization and Social Reform Movements



initiative of citizens engaged in everyday struggles is perhaps the most distinctive contribution of legal mobilization theory (Zemans 1982). A second related assumption is that the legal order is pluralistic rather than monolithic in character. Not only is the official law of the state a maze of diverse, indeterminate, and often contradictory legal traditions, but a plethora of relatively autonomous "indigenous" law traditions contend for constitutive preeminence within the many subcultures and institutional terrains of society (Galanter 1983). As Santos puts it, "our legal life is constituted by an intersection of different legal orders, that is, by interlegality" (1987, p. 298; Merry 1988). Third, both official and indigenous legal norms and practices generally contribute but limited, partial, and contingent constitutive influences in most domains of citizen activity. In other words, law is rarely an insular or discrete force in actual social practice, both for judges on the bench and citizens in the street; rather, it is usually only one contingent and interactive, if often important, dimension in the complex mix of factors that structure our choices and actions. It is this pluralistic and contingent character of legal conventions that renders them a dynamic but elusive force structuring social life. Legal Mobilization and Social Struggle

These basic premises provide the legal mobilization approach with a more expansive, subtle, and complex view of law's role in political struggle than most studies of reform-oriented litigation alone offer. One important point follows directly from the previous premises. That is, the plural character oflaw provides n;~orm activists with some measure of choices regarding both the general institutional sites and the particular substantive legal resources that might be mobilized to fight policy battles and advance movement goals. This by no means is intended to refute the general thrust of critics who emphasize the conservative ideological and structural biases of institutionalized legal practice in most official state forums. Indeed, legal mobilization theory is rooted In the assumption that law is a primary medium of social control and domination (Handler 1978; Scheingold 1974, 1988). Authoritative legal forms and relational logics by definition are the products of long evolving historical struggles in which some interests, groups, norms, and arrangements have tended to prevail in relatively systematic fashion. For example, my analysis of struggles over pay equity will emphasize the ways in which various legal practices have contributed to the maintenance of gender and class hierarchies in modern American society. It is important to emphasize, however, that system wide patterns of hegemony are always maintained by an incomplete and unstable process of diverse, sitespecific accommodations betweeen domination and resistance. Hence, whereas law in the aggregate surely tends to support definable hegemonic patterns of power, we must be attentive to the variable, shifting dynamics of power-laden


Law and Social Movements



legal conventions and practices within different contexts. 4 In particular, we should be sensitive to how different legal norms and institutional arenas over time offer varying degrees of opportunity or space for creative challenge (see Scheingold 1988; Thompson 1975). This is what is meant by a decentered view of law: that law is not only pluralistic and relatively independent of the state, but that its constitutive role in sustaining hegemonic hierarchies, and hence in structuring potential strategies of resistance, varies significantly among different terrains of social struggle. As such, attention to strategic choices about the sites, terms, and timing of struggle is an important concern of legal mobilization analysis (see Wasby 1983, 1984). A less obvious but equally important assumption is that specific movement legal tactics and practices-especially appeals to official legal norms, and institutions such as courts-often have multiple motivations and complex effects. Some legal mobilization theorists have adopted the conventional view that it is the "direct" effects of formal legal action that most determine movement strategy and impact (Burstein and Monaghan 1986). That is, legal action is employed primarily to win short term remedial relief for victims of injustice or to develop case law precedents capable of producing long term institutional change. Undoubtedly reform movement litigatioE usually ffi term. of legal entitlement? Should they speak a language of rights? The pexvasiveness of rights-talk in collective struggles around everything from comparable worth and disability to gambling and gun control suggests that activists see benefits in rights claims not available to those asserting "needs," or seeking concessions through direct action, legislative lobbying, or electoral organizing. But scholars associated with Critical Legal Studies (CLS) have issued a provocative challenge to the wisdom of rights claimsmaking. "It is not just that rights-talk does not do much good," Mark Tushnet states flatly. "In the contemporary United States, it is positively harmful" (1984:1386). CLS writers argue that the indeterminacy of rights allows judicial decisionmakers to operate on the basis of idiosyncratic and ideological preferences and allows unmeritorious opponents of The author wishes to thank Linda Catalano, Lynn Chancer, Patricia Ewick, David Greenberg, Susan Silbey, Abigail Saguy, Amy Schindler, Marc Steinberg, Alex Vitale, members of the Lazarsfeld Law and Society Workshop, and two anonymous reviewers from Law & Society Review for valuable comments and suggestions, and Linda Catalano for able research assistance. Address correspondence to Francesca Polletta, Department of Sociology, Columbia University, 510 Fayerweather Hall, New York, NY 10027 (e-mail: [email protected]).


Law and Social Movements 368

Southern Civil Rights Organizing, 1961-1966

progressive interests to invoke legal rights with equal clout. Thinking in terms of rights, moreover, substitutes a mystified notion of human sociability for a more authentic form of unalienated connection (Gabel 1984; Gabel & Kennedy 1983-84). The problem, then, is not only litigation as movement strategy, with its dependence on lawyers, its cost, and its inability to guarantee enforcement, but the very formulation of grievances in terms of rights. As Kelman puts it, "Basically the claim is quite cognitive: to the extent that people are 'afllicted' by legal thinking . . . counterhegemonic thought will simply make less sense, simply be harder to think" (1987:269; see also Gabel 1984; Hunt 1990; Herman 1993). Rather than succumbing to the illusory freedom and equality promised by rights, activists should demand that their "needs" be met rather than their "rights" granted (Tushnet 1984). They should puncture the ritualized sanctity of the courtroom and appeal to people's compassion and empathy rather than to standards of legal justiciability (Gabel & Harris 1982-83). While they may not want to junk rights claims altogether, recognizing their value as a motivating source of "imagery and inspiration" (Freeman 1988:335), activists should concentrate on collectively "unthinking" the ideological distortions that rights-talk reflects and furthers (323). They should "keep [their] eye on power and not on rights" (Gabel & Kennedy 1983-84:36). Such arguments have predictably spurred ardent defenses of litigation as a movement strategy. In this article, I take a different tack, examining how rights were conceived in a movement dedicated to the kind of power-oriented strategy that CLS writers recommend. Between 1961 and 1966, activists.working under the auspices of the Council of Federated Organizations (COFO}, the Student Nonviolent Coordinating Committee (SNCC), the Congress of Racial Equality (CORE), and the Mississippi Freedom Democratic Party (MFDP) sought to register black voters and build indigenous political organizations in the most repressive areas of the deep South. Young and militant, and aware of their role on the cutting edge of protest, they were largely dismissive of the NAACP's litigation campaign and of other organizations' focus on federal legislation. Their goal was power. And yet they and the local residents with whom they worked talked frequently about legal rights. Drawing on records of meetings, internal movement correspondence, field reports, and interviews, I examine how southern civil rights workers understood the relations among rights, politics, and protest. Rather than assessing the extent to which activists were able to preserve some prelegal political consciousness from its perversion by rights-talk, as CLS writers might do, I ask, what did they see law as capable of achieving? How did they relate other forms of activism to litigation efforts?


Law and Social Movements Polletta


How did their language of rights change? Did it expand to new targets, subjects, or institutional arenas? What I found should assuage CLS writers' worries that rights claimsmaking fosters a demobilizing dependence on the state to recognize rights-bearers, that litigation always displaces alternative, more power-oriented strategies, and that activists' political vision is progressively circumscribed by the limits of the law. With respect to the first, black Mississippians did indeed seek recognition as rights-bearers-as "first class citizens"-but less from federal and local officials than from congregation, kin, and community. Legal proceedings inside the courtroom supplemented the rights-talk that took place outside it by publicly recognizing people's willingness to "stand up" to white oppression. Far from substitutes for collective action, as Critical Legal Studies writers worry, legal victories were interpreted as prods to further action. Finally, with respect to critics' concern that rights-talk narrows activists' political vision and strategic options, I find that activists' extension of rights claims to the "unqualified" proved important in challenging prevalent notions of political representation. It helped to shape a collective action frame that went on to animate struggles around economic inequality, governmental decisionmaking in poverty programs, and the Vietnam War. Activists' engagement with conventional rights-talk pushed them beyond legal liberalism to a more radicalized but still resonant frame. What made possible this re-envisioning was not only the multivalent character of rights but also distinctive features of the political, social, and organizational contexts within which they were advanced. During periods of interorganizational movement competition, in settings where social institutions (legal, religious, familial, economic) enjoy relative autonomy, and when organizers are at some remove from state and movement centers of power, frame innovations are more likely. I thus address in a preliminary way a question that seems to me crucial: if novel rights formulations are always possibl.e, then under what circumstances are they likely to be advanced by challengers and to resonate with a broader public? The article proceeds as follows: While referring to the work of several CLS writers, I focus on the critique of rights discourse advanced by Peter Gabel because it treats most explicitly the relations between rights, rights consciousness, and social movements. My objections center on the stark opposition Gabel draws between social movements and rights claimsmaking. Social movements for Gabel are simply occasions for experiencing the authentic, unalienated relations that the law promises but precludes. They are, in other words (and this is contrary to Gabel's intention), the mirror image-but somehow "authentic" rather than "inauthentic"-of rights claimsmaking. This kind of reified opposition makes it difficult to assess the place of rights


Law and Social Movements 370

Southern Civil Rights Organizing, 1961-1966

and litigation in actual social movements since Gabel's very understanding of social movements elides aims of power, prefiguration, and personal self-transformation. In examining rights claimsmaking in the southern civil rights movement, I instead try to specify (1) the relationship between litigation and other movement activities (asking whether litigation was pursued at the expense of power-oriented strategies, as CLS writers worry), (2) activists' use of rights-talk outside formally legal settings (asking whether political organizing was undermined by its dependence on individualist, formalist, proceduralist, and state-dependent claimsmaking), and (3) the evolution of activists' political vision (asking whether it was made moderate by its dependence on the quest for rights). Data for this study consist of archival materials documenting southern civil rights movement "talk" between 1961 and 1966, 1 supplemented by a subset of the over one hundred interviews I conducted with former southern civil rights activists. I examined transcripts and recordings of strategy sessions, mass meetings, and courtroom proceedings; legal affidavits; personal correspondence; contemporaneous interviews with activists; and over six hundred field reports.2 The latter were especially useful in detailing the pitches that organizers made and the kinds of responses they encountered. Quoting extensively from mass meetings and individual conversations, they offer rich depictions of political organizing, as well as of organizers' evolving strategies and political visions. My own interviews with former civil rights activists helped me to understand the discursive patterns I found in the movement materials.

Rights-Talk and Its Critics Rights, Peter Gabel argues, are a substitute for the human bonds that we desire but do not experience in our lives. Apparently, that was not always the case: Gabel attributes to capitalism a "profound loss of a sense of social connection" (Gabel & Harris 1982-83:371). We project our unarticulated desire for connection onto the law, believing that the state can grant us the recognition of selfhood (which Gabel analogizes to the cathexis be1 SNCC began voter registration work in Mississippi in 1961 and southwest Georgia in 1962; between 1961 and 1966, political organizing in Mississippi was conducted under the auspices of SNCC, CORE, the SCLC, the NAACP, the umbrella COFO, and the COFOJl graduates with law degrees have the title of "master of laws" and are known as "jurists." This study, however, begins immediately after high school and is considered undergraduate work. 47 Becoming an "advocate" additionally involves joining the Dutch bar association and serving a three-year apprenticeship. Jurists can give legal advice and represent people before the administrative courts and lowest cantonal courts, where one is not required to have legal representation, but in practice most people need some assistance. 48 Only advocates may appear before higher courts, and only those in law firms in The Hague may appear before the Supreme Court in civil cases. 49 Although Ombudswoman had one jurist on staff in 1991, Dutch advocacy groups do not employ their own advocates. They hire advocates in private practice to take cases the groups wish to pursue. Though one of the staff members at the Clara Wichmann Institute was an advocate, she drew a clear distinction between her work two days a week as coordinator of the Working Group on Women and Law and the litigation she did in her private practice. Advocacy groups' provision of legal assistance is intimately tied with the organization of governmental legal aid in The Netherlands. All legal districts have a Legal Aid Bureau (Buro voor Rechtshulp) staffed by salaried jurists who provide initial legal advice and representation to all persons below a certain income. These jurists also dispense legal aid certificates to financially eligible persons who need the services of an advocate. The government pays a specified hourly amount to the advocates, with the client paying some or none, depending on income. 47. Blankenburg and Bruinsma, Dutch Legal Culture, p. 11. 48. J. C. Houtappel, "Access to Justice in Holland: A Summary," A World Survey, Vol. I, Book 2, of Access to Justice, ed. Mauro Cappelletti and Bryant Garth (Alphenaandenrijn: Sijthoff and Hoordhoof, 1978), pp. 579-94, esp. p. 583. Notaries, who administer real estate transactions, papel:l! or incorporation, marriage settlements, and wills, are yet a third Dutch legal occupation. See Blankenburg and Bruinsma, Dutch Legal Culture, p. 17, n. 6. 49. According to Bruinsma (lecture on Hoog Raad and Raad van State, The Hague, June 27, 1991), the bar in The Hague serves something of a screening function for the Supreme Court, which formally has no control over its docket. The feminist attorneys report that they often continue to do the real work in their cases after they have to turn them over to an attorney in The Hague to "front" for them.

Law and Social Movements


Susan M. Olson


Although these certificates can be used to hire any attorney, "half of all certificates go to 15% of all practicing attorneys and 10% of the Bar gets the remuneration entirely from legal aid payments. " 50 These lawyers, known as the "social bar,'' have their own organization consisting of lawyers committed to providing representation for progressive causes and disadvantaged persons. 51 Many of these lawyers specialize in certain kinds of cases. Interview respondents agreed that there were only 15 to 20 feminist attorneys in the whole country who did women's rights cases exclusively, plus quite a few more divorce attorneys who represented only women. Despite bitter complaints from the attorneys who take legal aid cases that the government rates of pay are too low (60 guilders per hour compared to an average market price of 225 guilders per hour), government expenditures on legal aid increased twenty-fold from 1970 to 1990. 52 One interview respondent estimated that 30 to 40 percent of the Dutch population is eligible for at least partial subsidy of their legal costs. 53 The government has proposed a variety of steps to reduce costs, including raising the proportion that partially subsidized clients must pay, hiring salaried advocates to work in the Legal Aid Bureaus rather than providing certificates to hire private practitioners on an hourly basis, and making divorce an administrative procedure that would not always require legal representation. In mid-1991, legislation proposing to make organizations such as Woman and Work or Public Feministry ineligible to receive legal aid threatened the future of interest groups litigation. The debate was resolved, however, by the Legal Aid Act of 23 December 1993, which allows for subsidized legal aid for "legal persons" and group actions (see discussion below) unless the organization was founded with the aim of initiating a court case or the group can pay counsel from its own funds, such as membership fees or public financial support. 54 One more aspect of the relationship between litigation costs and advocacy groups is the fee shifting that occurs in Dutch lawsuits. The losing 50. Blankenburg and Bruinsma, Dutch Legal Culture, p. 19. 51. One of the feminist attorneys interviewed and her law partner had recently resigned from this organization in protest of some members continuing to represent rapists. 52. Blankenburg and Bruinsma, Dutch Legal Culture, p. 20; and Kees Schuyt, "The Rise of Lawyers in the Dutch Welfare State," in The Civil World, vol. 2 of Lowers in Society, ed. Richard L. Abel and Philip S. C. Lewis (Berkeley: University of California Press, 1988), p. 212. 53. See Houtappel, "Access to Justice," p. 590, for earlier figures. 54. Staatsblad 1993, nr. 775. A communication from Professor C. A. Groenendijk, 16 August 1994, notes it is too early to tell how these provisions are being applied in practice.


Law and Social Movements

204 Comparing Women's Rights Litigation party ordinarily pays the court costs and part of the attorney fees of the winning party, except that losing defendants do not pay and winning plaintiffs do not recover if they are receiving legal aid. 55 Judges have the discretion to waive the collection of court costs, and one of the feminist attorneys reported that sometimes but not always the government agrees not to collect when it wins. Because a loser-pays rule can be a deterrent to litigation, 56 Clara Wichmann runs the Test-Case Fund for Law and Women to provide against the additional costs incurred in unsuccessful cases. Supported solely by donations from feminists, the Fund is insufficient to pay the direct costs of litigation. Like a U.S. group sponsoring test cases, the Fund managers select cases on the bases of their broader importance to women generally, their potential to extend the law, and their likelihood of success. In addition, the group recruits experienced lawyers to work on the cases and makes sure they get media publicity. The Fund supports approximately 40 cases a year. IV. Procedural Vehicles for Feminist Litigation In addition to helpful attorneys and/or advocacy groups, feminist and other social reform litigation requires procedural law that permits framing cases as broader issues and not just as ad hoc problems of individuals. In the United States, standing for organizations to represent their members, class actions, and amicus curiae briefs serve this function. In The Netherlands a "group action" procedure serves the same functions as organizational standing and class actions. A Dutch procedure with no clear analogue in U.S. courts, the "short procedure," does not particularly emphasize collective legal action, but has been the vehicle for much innovative litigation. In contrast, amicus briefs are undeveloped in The Netherlands. Dutch civil procedure provides for something similar to amicus briefs, but they are limited to government officials. Otherwise, only on the basis of a special statutory provision or upon an invitation from the court are third persons allowed to express their opinions on a case. 57 One feminist attorney reportedly tried submitting an amicus brief in a case before the Supreme Court concerning eligibility for legal aid, but my respondent did not know if the Court had accepted it or not. SS. Houtappel, "Access to Justice," p. 588. 56. Thomas D. Rowe, "Predicting the Effects of Attorney Fee Shifting," Law and Contemporary Problems, 47 (1984): 147ff. S?. C. A. Groenendijk, Bundeling van belangen bij burgeer/ijke rechter (Zwolle: Tjeenk Willink, 1981), ch. 10.

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Susan M. Olson 205 Group Actions

Group actions are suits brought on behalf of a broader group's interests. They were authorized under the general Dutch Civil Code only in 1994. 58 Some individual statutes, including the 1989 law on equal treatment in employment, had included them earlier, and judges have permitted them at their discretion since a Supreme Court decision in 1986. 59 Under article 305a of Book 3 of the Dutch Civil Code, incorporated organizations (the Dutch call them "legal persons") may bring such actions if the protection of the specified interests is within the formal aims of the legal person, even if it is not a membership organization. Under article 305b an informal association, which is not incorporated but has proof of rules on its aims and a stable form of cooperation between the members, can sue to protect the interests of other persons only if those persons have entrusted the association with that task. This differs from organizational standing in U.S. law, which is limited to representing one's members who "would otherwise have standing to sue in their own right. " 60 Perhaps the prevalence of groups supported by the government rather than individual members explains why Dutch procedure permits group action suits rather than the more limited concept of organizational standing to represent one's members. Though broader in who can be represented, group actions are more restrictive than American class actions in that they can win only prospective remedies and not damages. As in American class actions, individual members of the group may opt out. Damages, such as back pay in employment discrimination cases, can be awarded only to individuals personally joining a suit. The extent to which others similarly situated can sue and collect damages after a case has been won by a few individuals has been a matter of active contention. Examples of feminist group actions include a pregnancy discrimination suit brought by Ombudswoman on behalf of stand-by flight attendants employed by KLM airlines, a suit against the Ministry of Justice for inadequate security at a hospital for the criminally insane brought by an advocacy group for rape victims, and the admissions discrimination case against the hotel school brought by Public Feministry. Despite these examples, there is controversy among activists about the strategic value of group actions. One attorney who has been involved in

58. Staatsblad 1994, nr. 260. 59. Cf. Houtappel, "Access to Justice," p. 586. 60. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343 (1977).

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206 Comparing Women's Rights Litigation several group actions expressed reservations about them. Their presumption of speaking for a broad but vaguely defined group runs the risk of mobilizing opposition from women who disagree with the suit, as occurred with some current and former female students of the hotel school. She also perceived that some judges tend to view group actions as more political and thus may be less likely to respond to an innovative argument than they would be in an individual case. This perception is consistent with van Koppen's sense of the limits to the Dutch Supreme Court's willingness to innovate. 61 Despite the absence of stare decisis as a formal doctrine, she believes "it is easier to get a success for one individual case with structural importance and then do this individual case again for all these individuals" than to win a group action. Group actions can be brought in any Dutch trial court, but advocates have used them most often in ''short procedures" initiated in district courts. Increasing the acceptance of group actions is just one of several legal innovations attorneys have sought through short procedures. Short Procedures

Regular judicial procedure in Dutch trial courts is based largely on written submissions rather than oral proceedings, and is quite slow. According to Blankenburg and Bruinsma, it takes a court almost a year to reach a decision. 62 Perhaps for this reason, Dutch courts have since the nineteenth century provided for a short procedure (kort geding) that in recent years has acquired importance as a vehicle for social reform litigation. In a short procedure the president or vice president of a district court has the authority to make a preliminary decision in urgent matters. A decision can often be obtained in six weeks or less from the time of filing. 63 The decision can be overturned by a regular, full proceeding; however, parties are not required to pursue the full procedure after a victory in a short procedure, and rarely do. 64 The procedure is somewhat similar to an American preliminary injunction, but Dutch remedies may include money awards within certain limits. Because the judges are held to less rigid standards of legal reasoning and evidence, the short procedure introduces a type of equity principle into Dutch civil law. 65

61. van Koppen, "Dutch Supreme Court," and van Making.'' 62. Blankenburg and Bruinsma, Dutch Legal Culture, p. 63. Blankenburg and Bruinsma, Dutch Leg1:1! Culture, p. 64. van Koppen, ''Judicial Policy-Making," p. 82. 65. Blankenburg and Bruinsma, Dutch Legal Culture, p.

Koppen, "Judicial Policy24. 25. 25.

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Susan M. Olson 207 The presidents have great discretion in how they interpret the requirement for urgency. Some adhere to strict standards, but others are much more lenient. 66 The majority of short procedures are routine cases, but some have gained national media attention for controversial decisions on the rights of urban "squatters," people who protest housing shortages by illegally occupying abandoned buildings; a requested injunction against the Dutch translation of Salman Rushdie's Satanic Verses; and a defamation suit by the League of Homosexuals against a bishop. 67 The best known feminist use of the short procedure is to protect women against sexual violence. A woman who has been raped or battered can obtain a "street prohibition" forbidding the man from coming into her part of town. This is quite similar to an American restraining order, but, in addition, in the same proceeding the complainant can request up to 5,000 guilders (approximately $2500 in 1991) in preliminary damages. Recently one attorney had also persuaded the judge to order the offender to take an AIDS test. When this type of case was first brought in the early eighties, it got considerable publicity. Dutch feminists consider such cases to be a major improvement over women's experience with the process of criminal prosecution for sexual violence. 68 Other feminist uses of the short procedure include a claim for damages by a young woman who was sexually abused while in governmentsponsored foster care and an unsuccessful effort to get the courts to interpret more broadly a law allowing breast feeding at work. Cases invoking European law to challenge social security programs have also originated in short procedures. The success of these short procedures depends heavily on the discretion of the president of the court. At the time of the interviews, the presidents of the Amsterdam and Haarlem district courts had the reputation of being very receptive to progressive litigation, and their colleagues in Utrecht and The Hague less receptive. Heikelien Stuart quotes the president of the Amsterdam court as calling short procedures "the legal remedy of the rightless. " 69 In contrast, the president of the court in The Hague rejected the case against the hotel school's admission policy, saying the issue was too complex for a short procedure. This decision was

66. Blankenburg and Bruinsma, Dutch Legal Culture, p. 26. 67. Blankenburg and Bruinsma, Dutch Legal Culture, pp. 26-29. 68. Heikelien Verrijn Stuart, "Towards a Civilised Law Against Sexual Violence" (paper presented at the Joint Meeting of the Law and Society Association and the Research Committee on the Sociology of Law of the International Sociological Association, Amsterdam, June 26-29, 1991). 69. Stuart, "Towards a Civilised Law," p. 6.


Law and Social Movements

208 Comparing Women's Rights Litigation widely criticized and later overturned on appeal, suggesting broader expectations of what can properly be handled through short procedures. V. Comparisons with U.S. Women's Rights Litigation These features of feminist litigation in The Netherlands-its frequent reliance on external sources of law, the structures for providing legal assistance, and the procedural mechanisms used-all seem quite different from feminist litigation in the United States. On the other hand, a number of similarities appear as well, espe,cially in considerations of strategy and in problems faced. The Dutch women's movement is usually dated from the 1968 founding of the Man/Woman Society, a group of professional women and men often compared to the early National Organization for Women (NOW) in the United States, which began just two years before. 70 By 1970 a more radical feminist group appeared, calling itself "Mad Mina" after a late nineteenth-century feminist, Wilhelmina Drucker. A number of the leaders of Man/Woman Society assumed government positions in the 1970s and pursued legislative reforms, leading to criticism by groups preferring more separatist approaches. A commentator in 1984 still decried the lack of cooperation between these wings of the feminist movement. 11 This division contributed to the relatively slow emergence of litigation as a feminist tactic in The Netherlands, compared to the United States. In 1986 Catherine Hoskyns described European feminists as "rightly ... wary of the law, seeing it in the main as a means of codifying and imposing a particular view of women and only rarely as a lever or contradictory instrument which can be used to make at least partial gains," although she saw Dutch feminists as somewhat less firm in this view than the Germans, French, or Italians. 72 The chief editor of Nemesis, the journal published by the Clara Wichmann Institute, describes the Institute's attitude as a "love and hate relationship with the law. " 13 70. Lovenduski, Women and European Politics. 71. Corrine Oudijik, "The Netherlands: In the Unions, the Parties, the Streets, and the Bedrooms," p. 472; see also Joyce Outshoorn, "The Feminist Movement and Abortion Policy in The Netherlands," in The New Women's Movement, ed. Drude Dahlerup (London: Sage, 1986), pp. 64-84, and Joyce Outshoorn, "The Rules of the Game: Abortion Politics in The Netherlands,'' in The New Politics of Abortion, ed. Joni Lovenduski and Joyce Outshoorn (London: Sage, 1986), pp. 5-26, for an account of various feminist groups and abortion politics in The Netherlands. 72. Hoskyns, "Women, European Law," p. 303. 73. Stuart, "Towards a Civilised Law," p. 6.

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Susan M. Olson 209 Because of this mistrust and the traditionally lower political profile of civil law courts, Dutch f erninists did not enter the judicial arena until the eighties. In contrast, feminist litigators within the American Civil Liberties Union (ACLU) won the U.S. Supreme Court decision marking the beginning of modern women's rights litigation, Reed v. Reed, 74 only five years after the creation of the National Organization for Women (NOW) in 1966. The ACLU and the NAACP had earlier established a model of interest group litigation feminists could adopt. Despite the slower evolution of feminist litigation in The Netherlands, the similarities in the strategic considerations arising in both countries are striking. First, like their American counterparts, Dutch advocacy groups see litigation as an excellent way to get publicity for their issues. 75 The Nemesis editor refers to litigation as the "form [for obtaining rights] best recognised by the public and the media. " 76 Second, litigation is integrated with lobbying, and issues move back and forth between judicial and political arenas. 77 A big lawsuit concerning part-time teachers and other school personnel was lost in court, but the battle was finally won after four more years of negotiating with unions and the Minister of Education. Third, the active feminist litigators are trying to pursue an incremental strategy of building from easier to bolder cases, despite no formal doctrine of precedent. They screen for promising test cases from the hundreds of complaints that come to feminist advocacy groups like Woman and Work. They are occasionally frustrated by what they view as bad cases brought by persons outside the small network of feminist attorneys and advocacy groups. 78 Efforts to coordinate litigation occur internationally through the European Network on Women. Fourth, the experience and persistence that interest groups can bring to litigation is also recognized in The Netherlands. 79 An opponent of the proposal to strip legal persons of their eligibility for legal aid commented: "They [advocacy groups] have the knowledge and the staying power, the will to fight this battle for years and years." 74. 404 U.S. 71 (1971). 75. Cf. O'Connor, Women's Organizations' Use of the Courts, p. 5; Susan M. Olson, Clients and Lawyers: Securing the Rights of Disabled Persons (Westport, CT: Greenwood, 1984), p. 25. 77. Cf. Olson, Clients and Lawyers, Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994). 78. Cf. Clement Vose, Caucasians Only: The Supreme Court, the NAACP and the Restrictive Covenant Case (Berkeley: University of California Press, 1959). 79. Cf. Marc Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," Law & Society Review, 9 (1974): 95-160; O'Connor, JYomen's Organizations' Use of the Courts.


Law and Social Movements

210 Comparing Women's Rights Litigation These similarities in strategy exist despite considerable differences in the political context in which feminists operate in the two countries. Initially, The Netherlands loo.ks wonderfully progressive to an American feminist. The national government has a detailed and explicitly feminist policy on employment, education, sexual violence, and social services. Its feminist policies even extend to unpaid household work, 80 which some American feminists see as the single biggest problem of American women. 81 The policy provides for parental leave equally available to men and women and for ensuring that boys are familiar with and prepared for performing unpaid caring duties. Dutch employment law is considerably more progressive than U.S. law, though not by any means ideal from a feminist perspective. 82 The Equal Treatment Act, passed in 1980 and expanded in 1989, augments an earlier Equal Pay Act and applies the principle of equality to recruitment, contracting, working conditions, promotion, and training. 83 An administrative body, the Commission for Equal Treatment of Men and Women at Work, offers an accessible forum for work-related complaints that is reportedly quite effective, despite having no binding legal authority. 84 Comparing Dutch policy on maternity leaves to the tortured path American law took, Titia Loenen concludes that "there is not much left for the Dutch courts to decide in this area." 85 Where Dutch law falls short in these areas, European law can be invoked. The Dekker case, mentioned earlier, shows how European law can sometimes plug loopholes in the Dutch law. 86 Despite the require80. The Netherlands, Equal Rights Policy Plan, p. 35. 81. Baer, Women in American Law, pp. 295-99. 82. Riki Holtmaat, "Tne Power of Legal Concepts: The Development of a Feminist Theory of Law," International Sociology of Law, 14 (1989): 481-502. 83. The Netherlands, Ministry of Social Affairs and Employment, Report on the

Measures Taken in The Netherlands in Compliance with the Nairobi Forward-looking Straregies (FLS) (1990): p. 7.

84. A minor disadvantage of such an administrative apparatus, however, is said to be that the judges in regular civil courts get relatively few such complaints and do not know the law well when they do get one. More than one respondent mentioned a notorious case concerning pregnancy discrimination that was brought in the cantonal court, which handles many other employment-related disputes. The judge blatantly misapplied the Jaw, but there was no right of appeal from that type of decision. On the other hand, as a lower court case in a civil law country, it also set no precedent that any other court is expected to follow. 85. Titia Loenen, "Comparative Legal Feminist Scholarship and the Importance of a Contextuai Approach to Concepts and Strategies: The Case of the Equality Debate," Feminist Legal Studies, 3 (1995): 76. For the U.S. law see Susan G. Mezey, In Pursuit of Equality: Women, Public Policy, and the Federal Courts {New York: St. Martin's Press, 1992), ch. 6. 86. [1990] ECR I-3941.

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Susan M. Olson


ment of equal treatment in recruitment and the generous policies for maternity leave, discrimination against pregnant women in hiring had persisted because the costs of the maternity leave an employer is required to provide would not be covered by social security if the woman were more than a few weeks pregnant when she started the job. In the Dekker case the ECJ declared discrimination on the basis of pregnancy to be a matter of direct discrimination, which is illegal in all instances. 87 Some areas of Dutch law are more progressive than others. Women began to tum to short procedures to obtain civil remedies for sexual violence because they felt the criminal justice process was so oppressive of women victims. 88 Legal reform in the area of employment has worked comparatively well for two reasons. First, as in other welfare states, the employment relationship in The Netherlands was already governed by detailed legal rules before equal rights for women became an issue. According to Loenen, "the major reason for providing reasonable protection for pregnant women was not equality of the sexes as such, but a more general notion of the importance of providing for workers' needs and protecting them against the risks of losing their income.' ' 89 Second, European Union law has had a generally positive impact on women's rights in employment-related issues. Notwithstanding controversies about how to reduce its costs, a strong social consensus supports the principles of the Dutch welfare state90 and apparently of equality between the sexes as well. An American observer is struck by the lack of overt opposition to the liberal policies on the books. Only the very small fundamentalist Christian political parties, which rarely hold more than 5 percent of the 150 seats in the more influential Second Chamber of the parliament, publicly adhere to the view that women's place is in the home. My feminist respondents were unanimous in regarding them as an insignificant political force. 91 By comparison, the Christian right has greater visibility and clout in the United States through its influence on the Republican Party and through independent organizations like the Eagle Forum. 92 Nevertheless, the Dutch feminists interviewed who do not themselves

87. Sally J. Kenney, "Pregnancy Discrimination: Toward Substantive Equality," Wisconsin Women's Law Journal (fonhcoming, 1995). BB. Stuart, "Towards a Civilised Law." 89. Loenen, "Comparative Legal Feminist Scholarship," p. 76. 90. Andeweg and Irwin, Dutch Government and Politics. pp. 202-06. 91. Outshoorn, "Rules of the Game," discusses abortion politics in The Netherlands. 92. Kenneth D. Wald, Religion and Po/i1ics in the United States (Chatham, NJ: Chatham House, 1987).

Law and Social Movements



Comparing Women's Rights Litigation

work in government believe that this support of norms of equality is largely rhetorical. They all believe a large majority of Dutch men still think that women's place is in the home. One respondent said this attitude is especially strong among some judges and members of the Christian Democratic Party-the largest party and a member of virtually every coalition government this century. 93 The result of this, according to the feminists who are not civil servants, are policies that look great on paper but are never implemented. 94 They feel law has had little effect on the still pervasive discrimination that is based on unspoken, but deeply rooted attitudes. On a theoretical level, Dutch feminists have joined their U.S. counterparts in criticizing "equal treatment" as an adequate concept for achieving true equality for women. 95 The Bilka-Kaufhaus and Teuling cases mentioned earlier interpreted the principle of equal treatment to allow continued discrimination on the basis of part-time employment or family status. This greatly undermines the significance of the equal treatment law because so many Dutch women, especially married women, work only part time. The women's labor force participation rate is notably lower in The Netherlands than in the United States. Forty-two percent of Dutch women held paid jobs in 1987, compared to 62 percent in the United States. Because of a higher percentage of part-time employment among Dutch women, the difference measured in labor years is 26 percent in The Netherlands, compared to 56 percent in the United States. 96 The prevalence of part-time employment is related to the complex tax and social security laws. According to Heleen Ietswaart, the low rate of full-time employment by married women is partly a matter of disapproving social norms and now-illegal but continuing discrimination by employers in favor of hiring "breadwinners." 97 But it is also, Ietswaart notes, due to the elaborate Dutch tax and social welfare laws, which pro93. See text at footnote 43. 94. See Joyce Outshoorn, "State Feminism and 'Femocrats' in The Netherlands," which studies the relationship between "femocrats" working in the office for emancipation policy, apparently including many of the same persons I interviewed one year earlier, and other feminists. 95. E.g., see Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1990); Leslie Friedman Goldstein, "Can This Marriage Be Saved? Feminist Public Policy and Feminist Jurisprudence," in Feminist Jurisprudence: The Difference Debate, ed. L. F. Goldstein (Lanham, MD: Rowman and Littlefield, 191)2), pp. 11-40; and Kenney, "Pregnancy Discrimination." 96. Helen F. P. Ietswaart, "Labor Market Participation of Women in The Netherlands, 1960-1990" {paper presented at the annual meeting of the Law & Society Association, May 28-31, 1992, Philadelphia), p. I. 97. Ietswaart, "Labor Market Participation."

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Susan M. Olson 213 vide minimally adequate transfer payments to many divorced women, encourage wage levels that comfortably support families with only one wage-earner, and provide tax advantages to families that are withdrawn if both spouses work. With such disincentives for women to work, all the laws requiring equal treatment in employment have relatively little impact. The Dutch femini~ts' experience in trying to implement the concept of equal treatment in government benefits epitomizes a second problem of legal reform as a means for improving the situation of women. When a policy is found to violate the equal treatment law, the usual tendency is reportedly to "level down" and reduce benefits for all, saving the government money but increasing men's hostility to the feminist litigation. 98 But even that approach is not taken even-handedly, according to one feminist attorney. She reported that a case alleging discrimination against women in benefits for the self-employed was resolved by reducing the men's benefits to the lower level. In contrast, a case alleging discrimination in pensions against surviving widowers was resolved by raising their pensions to the level given widows. The courts may also be more responsive to men's claims in other contexts besides monetary benefits. One respondent perceived that the Dutch Supreme Court had gone further in "creating new law,'' in a case in which a father wished to be allowed to acknowledge paternity without his name being given to the child, than the Court had been willing to do in equal treatment cases brought by women. "So now we have this feeling that this equal rights business is nonsense .... Everybody is very frustrated about it, but we don't know how to do it differently," one attorney concluded. As Americans have learned, too, equal treatment often works as much or more to the advantage of men than women, leading some feminists in both the United States and The Netherlands to question the ultimate effectiveness of the legal approach to change, especially a court-focused litigation strategy. 99 Not only are the theoretical concerns of feminist legal scholars similar in both countries, but many of the concrete problems of group litigators are as well. First, the psychological stress on individual litigants confronting employers or intimates is a major deterrent to litigation everywhere.100 With no procedural mechanism for awarding damages in the 98. Loenen, "Comparative Legal Feminist Scholarship," p. 81; Hoskyns, "Women, European Law," p. 306. 99. Baer, Women in American Law, pp. 50-52. 100. Kristin Bumiller, The Civil Rights Society: The Social Cor.struction of Victims (Baltimore, MD: Johns Hopkins University Press, 1988).


Law and Social Movements

214 Comparing Women's Rights Litigation absence of individual claimants, this is particularly a problem in The Netherlands. Second, respondents bemoaned the years and years it can take a case to move through the many levels of the courts, especially if a case proceeds beyond the Dutch courts to the European courts. 101 A third problem is the limited remedial powers of judges, at least as most usually interpret them. 102 Judges who strike down an existing policy do not usually create a new, more equitable policy, but leave that decision for the government that created and administered the policy just invalidated. For example, as Loenen notes: "Even if it would have been within the competence of a Dutch court to strike down the criterion 'work history' [in the Unemployment Act] as indirectly discriminatory, the court could not have ruled that years spent on rearing children should be equated with years engaged in gainful employment." 103 The government then may take considerable time to respond with new policies to EU legislative or judicial directives, perhaps partly because the government is always a coalition. 104 Ultimately, in The Netherlands as in the United States, success is heavily dependent on judicial discretion, notwithstanding the civil law tradition discouraging judicial innovation. Awareness of this was apparent in respondents' speculations about the relative receptiveness to feminist cases of different district court presidents and of the Dutch Supreme Court compared to the highest administrative court. One feminist activist summed up the situation with the following words: "If you want to understand Holland, you have to realize we are Calvinists, we are liberals, and everything is about money." The liberalism comes out in the progressive formal policies. The emphasis on money is apparent in the leveling-down approach to equality. The Calvinism comes out in legal symbolism. "As long as you write down in law that it is forbidden, you are on the right side, and whether it works doesn't matter because it is written down that you're not allowed to do it." Another Calvinistic streak she noted is a tendency for rights to turn into duties. The most striking example of this is that it is now a matter of national policy that all girls as well as boys who turn eighteen in 1990 or later will be presumed to be capable of supporting themselves. 105 Family

101. Cf. Olson, Clients and Lawyers, p. 27. 102. Cf. Joel F. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (New York: Academic Press, 1978), pp. 22-25. 103. Loenen, "Comparative Legal Feminist Scholarship," p. 87. 104. van Koppen, "Judicial Policy-Making," pp. 83-85. 105. The Netherlands, Ministry of Social Affairs and Employment, Women and the State: Dutch Government Policy for the Advancement of Women (1989), pp. 18 and 26.

Law and Social Movements


Susan M. Olson 215 allowances will be gradually reduced, removing from women the option of being full-time homemakers. These changed financial incentives will require rather rapid change in the predominant pattern of social norms established over generations. It is still unclear whether the infrastructure to support such a change, such as child care options, businesses open in the evenings for after-work errands, and other services in which The Netherlands now lags behind the United States, will develop apace. VI. Conclusion Dutch women confront many of the same problems with legal implications that American women do, including sexual violence and discrimination in employment and educational opportunities. Some differences in legal issues arise, however, from differing social and political institutions. For example, if available, comparative quantitative data would probably show a smaller proportion of women's rights litigation concerning employment and a larger proportion involving government benefits in The Netherlands than in the United States. In both countries advocacy groups play a crucial role in pursuing women's rights through the legal system. The strategic decisions and some of the problems that arise in pursuing rights through litigation are very similar. The specific role Dutch groups play is different from the prototypical American approach because Dutch groups neither employ attorneys nor raise most of the costs of litigation. The feminist attorneys to whom groups refer women definitely see themselves as doing test cases, however. Amicus curiae briefs are not used, but Dutch law permits group actions that serve much the same functions that organizational standing and class actions do in the United States. Because of government-subsidized legal aid, Dutch groups avoid the need for U.S.-style private fund-raising, except for the fund that covers fee shifting in losing cases. Consistent with Martin Shapiro's argument, the formal absence of constitutional judicial review or a doctrine of binding judicial precedent does not seem to make much difference in the current status of litigation in the two countries. 106 That the Dutch courts are evolving only gradually toward a more creative view of their function undoubtedly has slowed feminists' perceiving them as valuable allies. But feminist litigation in The Netherlands has come to look remarkably like its counterpart in the United States, in both its strategies and its problems. 106. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: Univer·

sity of Chicago Press, 1981).

[13] Long-Term Strategies in Japanese Environmental Litigation Robert L. Kidder and Setsuo Miyazawa Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for deemphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned to the advantage of a social movement because of its commitment to longer-term political objectives rather than short-term victories. The special role of professions in general, and the legal profession in particular, in such litigation combines with class-oriented social movements to produce a political/legal pattern that is neither traditionally harmonious nor a conflict "difficult to contain. "

When a large group of Japanese air pollution "victims" files suit against the national government and major industrial organizations, how did they reach that decision, what do they want, what conditions will af· feet their court outcomes, and what effect will the law-centered experience have on their lives as individuals and as members of a social movement? We address these basic questions in this study. We will also consider their implications for broader issues of law in society generally and law in Japan specifically. Because our approach is comparative, and because the Japanese legal context of this lawsuit is important in producing the answers to our questions, we begin with a review of the context which an American group with similar pollution problems might face. Robert L. Kidder is a professor in the Department of Sociology at Temple University. Setsuo Miyazawa is on the Faculty of Law of Kobe University.


Law and Social Movements

606 LAW AND SOCIAL INQUIRY Environmental social movements in the United States are often subsets of broader movements for social change. Typically these movements include litigation as one means of furthering their goals. Some defendants are private parties whose actions have caused, or threaten, dangers or de· struction. In other cases, government agencies are sued for failure to en· force regulations, or as a means of pressuring those agencies to carry out their responsibilities more assertively. Environmental activism in the U.S. has tended to coalesce into na· tionwide organizations such as the Sierra Club, Greenpeace, and the Wild· life Fund. These mass-membership organizations raise significant resources to support high-impact litigation. By high-impact litigation, we mean law· suits in which the object is to obtain judgments, written opinions, and the attendant publicity from actions of the highest federal courts in order to set precedents (what Galanter has called "rule development" and the pur· suit of "rapid and elaborate development of the doctrinal law") 1 that will alter the behavior of polluters all over the country. In other words, in addition to pressing legislatures to write environment-friendly laws, anti· pollution organizations regularly use the courts to produce social change through court-centered precedent. 2 Community groups who wish to attack a specific local environmental problem can seek one or more of these nationwide organizations to act as a champion. The organizations respond selectively, taking on those "cli· ents" with "significant" cases-those in which successful litigation will produce both good publicity and valuable new precedent. With numerous environmental-protection laws already passed by both the federal and state levels, local activists are well armed with a gener· ally favorable legal climate for action. This remains true even in the face of a fluctuating political and administrative environment. Nevertheless, as previous research has repeatedly shown, laws are not self-enforcing and regulatory laws in particular depend on factors such as the limited re· sources allocated to regulators, the political inclinations of the administration for which they work, and the changing structures and mechanisms of control. 3 Hence the majority of environmental actions in recent years has I. Marc Galanter, "Why the 'Haves' Come out Ahead: Speculations on the Limits of Legal Change," 9 Law & Soc'y Rev. 112 (1974). 2. According to Percy Luney, a board member of the Environmental Defense Fund, many environmental groups in the United States now prefer negotiations over litigation. The National Environmental Policy Act allows such organizations to participate in regulatory procedures. 3. See S. Cohen, "The Punitive City: Notes on the Dispersal of Social Control," 3 Contemp. Crisis 339 (1979); Richard L. Abel, "The Contradictions of Informal Justice" in Abel, ed., The Politics of Informal Justice (New York: Academic Press, 1982) ("Abel, Politics"); Boaventura de Souza Santos, "Law and Community: The Changing Nature of State Power in Late Capitalism," in Abel, Politics; Pat O'Malley, "Regulating Contradictions: The Australian Press Council and the 'Dispersal of Social Control,' " 21 Law & Soc'y Rev. 83 (1987); Jonathan Simon, "The Ideological Effects of Actuarial Practices," 22 Law & Soc'y Rev. 771

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 607

been centered on using litigation to enforce existing laws. An example is the use of regulations requiring "environmental impact studies" to be performed before new development projects can be started. Courts have be· come the center of battles over the protection of one or another "endangered species" such as the Snail Darter fish in Tennessee or the Northern Spotted Owl in the Northwest where the cutting of forests is being contested. In the United States, therefore, localized pollution initiatives arise and exist within a nationwide ecology of mobilized resources including networks of supporters and activists who use litigation at various levels as part of their strategy for environmental protection. Their actions are supported not only by thousands of voluntary donors, both individual and corporate, who support environmentalism in general, but also by the large number of activist lawyers who are available to work full time on environment-related issues. For U.S. activists, there is an abundance of legal resources, and these resources have become incorporated into the long-term strategies of environmental activism. In this article, we will use a case study to compare this American pattern with research results on antipollution activism and litigation in Japan. Among social scientists, Japan is known for two factors that are relevant to this research: its unfortunate position as a pioneer in pollution experience in the Minamata disease cases; 4 and its reputation as a society with a culturally based aversion to dependence on the law and courts. Our research focuses on the relationship between Japan's scarce legal resources and the strategies of social mobilization used by environmental activists. For decades, social scientists have tended to rely on culture as an independent variable explaining all sorts of differences between Japan and other industrialized societies. Japan's low rates of litigation and the "underdevelopment" of its legal institutions have been no exception. Kawashima's discussion of the legal system is one of the best-known Eng· lish-language treatments of culture-based analyses. 5 In brief, the culturebased hypothesis is that the traditional Japanese esteem for harmony and institutions expressing that value system have made legal institutions and procedures aesthetically unpalatable and functionally unnecessary. Culture, they argue, supports functional alternatives to legal structures that ( 1988); Julie Horney & Cassia Spohn, "Rape Law Reform and Instrumental Change in Six Urban Jurisdictions," 25 Law & Soc'y Rev. 117 (1991); Ian Ayers & John Braithwaite, "Tripartism: Regulatory Capture and Empowerment," 16 Law & Soc. Inquiry 435 (1991). 4. See Frank Upham, Law and Social Change in Post-War Japan (Cambridge, Mass.: Harvard University Press, 1987) ("Upham, Law in Post-War Japan"); for a complete chronology of Japan's history of pollution problems and related social actions, see Nobuko lijima, ed., Pollution Japan: Historical Chronology (Tokyo: Asahi Evening News, 1979). 5. Takeyoshi Kawashima, "Dispute Resolution in Contemporary Japan," in A. T. von Mehren, ed., Law in Japan: The Legal Order of a Changing Society (Cambridge, Mass.: Harvard University Press, 1963) ("Kawashima, 'Dispute Resolution'").


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608 LAW AND SOCIAL INQUIRY have developed in the West. More recent versions of this thesis deal with apology 6 and with the social psychology of justice. 7 Other research on connections between law and society in Japan has challenged these culture-based explanations for Japan's legal "underdevelopment" and the relative infrequency of Japanese litigation. One type of challenge emphasizes relationships between different elements of Japan's elite, the emphasis of postwar Japanese leaders on rapid economic expansion, and conditions affecting the success of interest groups in transforming their local problems into issues of broader import. 8 This approach depicts the Japanese love of harmony as a useful myth by which a power elite justifies deliberate suppression of growth of legal institutions. Other studies make a similar point by demonstrating the economic rationality of Japanese decision making about whether or not to litigate, given institutional contexts, including the high costs of lawyers and litigation, which make settlement strategies measurably less expensive than litigation. 9 In both of these versions, the law-averse behavior of ordinary Japanese citizens becomes "rational" because it reflects decisions that make sense from a self-interested viewpoint within the confines of the socioeconomic structures that determine opportunities in Japan. Regardless of theory, most observers agree that Japan stands out as a rare exception to the trend toward legalization in industrial and postindustrial societies. Social movements addressing environmental issues face a very different legal landscape from that which most Americans have come to take for granted. If America is a legal jungle, Japan is a desert. The story we tell here represents a "negative case"-a group of people who are using the legal system, who are confronting their opponents in court, who, in other words, are apparently not obeying the unwritten rules of Japanese culture. In our report, we will show how people in Japanese social movements adjust to and use the scarce legal resources and the opportunities 6. Hiroshi Wagatsuma & Arthur Rosett, "The Implications of Apology: Law and Culture in Japan and the United States," 20 Law & Soc'y Rev. 461 (1986). 7. V. Lee Hamilton & Joseph Sanders, Everyday Justice: Responsibility and the Individual in Japan and the United States (New Haven, Conn.: Yale University Press, 1992) ("Hamilton & Sanders, Everyday Justice"). In their book, Hamilton and Sanders go well beyond the references earlier in linking cultural factors to those of social structure. Still, their analysis tends to treat the attitude differences they find as an important causal factor in retarding the development of legal institutions in Japan. 8. Margaret McKean, Environmental Protest and Citizen Politics in Japan (Berkeley: University of California Press, 1981); Upham, Law in Post-War Japan; Setsuo Miyazawa, "Social Movements and Contemporary Rights in Japan: Relative Success Factors in the Field of Environmental Law," 22 Kobe U. L. Rev. 63 (1988); John 0. Haley, "The Myth of the Reluctant Litigant," 4]. Japanese Stud. 359 (1978). 9. Takao Tanase, "The Management of Disputes: Automobile Accident Compensation in Japan," 24 Law & Soc'y Rev. 651 (1990); J. Mark Ramseyer & Minoru Nakazato, "The Rational Litigant: Settlement Amounts and Verdict Rates in Japan," 18 J. Legal Stud.

263 (1989).

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 609

found at the oases of this "legal desert." We will also address the changes that litigation may produce in social movements which do go to court. In the late 1980s 482 residents of Kojoshi [pseudonym], an industrial suburb of a major Japanese metropolitan center, filed a multibillion yen lawsuit against nine local companies, the national government of Japan, and a public highway corporation. In addition to damages (various lung diseases) stemming from air pollution, they demanded injunctive orders to keep below specific levels sulfur dioxide from the defendant companies and nitrogen dioxide from the highway passing through their area. 10 Their indirect purpose in demanding these orders is to force the government to reinstate a previously established compensation system that the national government had used to deal with the pollution crisis of the late 1960s. How did this citizen action come about? How is it organized? What does it tell us about "access to justice" in the Japanese legal system and the relationship between Japanese legal institutions and social movements? The general objective of the research we report here has been to situate this lawsuit sociologically in the formation and evolution of the particular social movement from which it has sprung. To the extent that it may be more than just an idiosyncratic case, it may tell us something more general about law and social movements in Japan. In the process, the research may also provide some answers for broader questions about law and social movements in general. With respect to the debate over culture versus other explanatory schemes, we will try to show the inadequacy of a reliance on culture to explain this case.

LITIGATION AND SOCIAL MOVEMENTS Until Japan began planned industrial development, Kojoshi was a quiet fishing village. Everything changed when national government chose the whole region as a new heavy industry development zone. Like its neighboring towns in both directions along the seacoast, Kojoshi was quickly transformed into a sprawling center for smokestack industries such as steel, glass, and power generation. By the 1930s it was a predominantly industrial area in which pollution of various kinds was probably already producing health problems. Kojoshi is now a city of about 600,000 people. It is divided between a relatively affluent section "across the tracks" and outside the prevailing drift of the city's oceanside regiments of smokestacks, and the other half that routinely receives the pollutants issuing from those stacks. This "other half" is a relentlessly industrial area, with a few very large factories IO. For a more detailed description of the legal issues involved in this case, see the appendix.



Law and Social Movements

610 LAW AND SOCIAL INQUIRY and hundreds of much smaller ones scattered in among the working-class neighborhoods. The area merges indistinguishably with similar industrial strips on either side of it. Air pollution in Kojoshi has led a large group of residents to conclude that litigation is rational, that the group needs to confront both private industry and government with public legal action. These lawsuits therefore represent the nonharmonious option which is not consistent with the Jap· anese ideology of consensus, the culture of W a. Is this action an aberration, just a peculiar local outburst? Or does it contain elements that tell us something new about the relationship between "the people" and the Japa· nese legal system, about factors that Japan shares with other industrialized legal systems, and therefore about more global patterns of response to en· vironmental problems through legal activity? In particular, how do the structural restrictions on development of law in Japan affect the strategies these plaintiffs use to achieve their goals?

METHODS The research reported here is largely based on interviews conducted by the authors with those involved in this litigation on the side of the plaintiffs. We have interviewed those lawyers who are involved as "active" advocates in the preparation and presentation of the case, leaders of the plaintiffs' organization and leaders of the more inclusive victims' organiza· tion from which the plaintiffs were drawn, and an opportunistically drawn (not random) sample of plaintiffs. We have accompanied lawyers during their interviews of plaintiffs in their homes and conducted our own inter· views of those and other plaintiffs. We have also interviewed two doctors and a high school science teacher who originally helped define Kojoshi's problem as a case of air pollution and the doctor who has treated more than half of the plaintiffs. In addition to interviews, we have studied the publicity material distributed by the victims' organization and the plaintiffs' organization, and the stories about their actions and the progress of the litigation which have appeared in both Japanese and English language papers and on television.

THE KOJOSHI CASE The Kojoshi litigants are a subset of "certified victims" of sulfur diox· ide pollution in Kojoshi. Victims obtained their "certified" status begin· ning in 1970 through a coincidence of their own efforts and major changes in the policies of the national government. The origins of "victim con·

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 611

sciousness" and certification include both local action and external influ· ence. Beginning in the late 1960s, various Kojoshi residents became concerned about the high incidence of respiratory disease, especially among Kojoshi's children. Emphysema, bronchitis, and asthma were all higher than local doctors thought normal. These doctors communicated their concern to parents and began helping a few of them to investigate causes. To do this, they felt they needed to measure the extent of the problem, and this required contacting other parents. With the help of local science teachers who sought the source of the problem with crude ex· periments, and local doctors who helped organizers track the geographic pattern of disease, they identified the problem as air pollution and traced it to local factories. The epidemiological phase thus involved actions which, in retrospect, were well-suited to the formation of a social movement. The timing here is important because it is simultaneous with the climax of the "Big Four" pollution cases (Minamata, Yokkaichi, Niigata, and Toyama}, 11 which had captured the nation's (and eventually the world's) attention and prodded the national government into dramatic antipollution action. Thus, just as the "big" cases were pressing the national government to enact enlightened new environmental standards, groups of Kojoshi citizens were putting together their own homemade version of a pollution case. The specific channel by which the idea of air pollution entered this local scene appears to be through a local doctor who innocently welcomed a group of medical students on a study tour from Tokyo. In his own words, before the arrival of the students, he had always considered Kojoshi's smokestacks and soot to be "a symbol of progress and achievement ... , an object of pride for the community." But the students arrived with a letter from their professor questioning the doctor about diseases in his town that might be related to air pollution. He relates that this was the first time he ever considered the possibility that the air might be dangerous. Yet it was from this seed of doubt that the doctor began his own investigations and began to communicate his doubts to his patients, some of whom became the nucleus of the new movement. This growing group of local residents persuaded the city government to institute a system for the compensation of air pollution victims. The municipal program began operation in 1970, just prior to the introduction of a nationwide compensation program for pollution zones "designated" by the national government. The national program involved a tax on in· dustrial polluters which was used to create a compensatory fund for "certi· fied" pollution victims in many industrial towns including Kojoshi. Its 11. See Upham, Law in Post-War Japan, and McKean, Environmental Protest and Citizen

Politics in Japan.



Law and Social Movements

612 LAW AND SOCIAL INQUIRY purpose was not to punish polluters, nor even to force an end to pollution, but rather to help those who suffered its effects. Since the pollution tax was calibrated to the level of pollution output, the program was expected to gradually reduce pollution in response to economic incentives. However, the primary thrust of the program was support for those who suffered from the pollution. To become "certified" as a victim, one had to prove residence in a designated polluted area for at least a year and present symptoms of one of four classes of respiratory disease (emphysema, asthma, asthmatic bronchitis, and bronchial asthma). Kojoshi was included in the first group of "designated areas." A special characteristic of this program is that "victims" need not demonstrate a direct causal relationship between any one polluter and their own contraction of disease. Nor do "victims" have to prove a causal link between the pollutants and their disease. Liability of polluters is collective and causality is assumed. The primary agent of pollution-caused disease has been identified as sulfur dioxide. Currently, nearly 11,000 Kojoshi residents are certified as "victims," with level of disease severity determining the level of compensation they receive from the fund. Simultaneous with their efforts to gain certification, a majority of the victims formed into civic associations using volunteer help and contributions from the city to develop a social service network for victims and their families. By the time we began interviewing in the spring of 1989, the organization involved in the litigation was operating 16 neighborhood-based offices scattered about the city to bring services for victims and their families close to home.12 Beginning with legislative moves in 1980, the national government has been moving to curtail its compensation program, starting with legislation to narrow the range of eligibility for victim certification and reduce the financial burden placed on the polluting industries. The pace and scope of this reduction grew more intense in 1983, and the victims' association began looking for ways, including political action and litigation, to ensure the continuation of the program. In 1987, however, government support was cut sharply. The Pollution Health Damage Compensation Act was amended, terminating certification of new victims. In effect, the ruling party and relevant agencies have declared sulfur dioxide pollution a thing of the past. 13 The policy change clearly came in response to pressure from 12. Many victims literally cannot walk a couple of blocks to shop at their neighbor· hood stores. The exertion leaves them breathless. Hence, many depend on the social service network of the victims' association to allow them to continue living at home. 13. Sulfur dioxide pollution has been significantly reduced throughout Japan, though not eliminated entirely. Kojoshi victim leaders and their lawyers confess in private that they know sulfur dioxide is no longer such a problem, but they continue to press the issue for two reasons: first, to keep up pressure on the government to care well for those who have already fallen prey to sulfur dioxide; and, second, to strengthen their hand in dealing with the more significant contemporary pollution threat from nitrogen dioxide emissions from

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 613

industrial leaders to eliminate the competitive disadvantages of regulatory burdens on industry. To make this pill more palatable to the general pub· lie, government simultaneously created a fund for research and other pre· ventive measures using contributions from industries. Besides the victims themselves, many local governments opposed this amendment. The Kojoshi victims' lawsuit, filed in December 1988, was mostly a response to this policy change. It demands injunctive orders to reduce air pollution caused by sulfur dioxide and nitrogen dioxide to specific maximum levels. Further, it demands nearly 12 billion yen (about $92 million) in damages to the victims. The suit is intended to place indirect pressure on the government to reinstate the compensation system by legally confirming the existence of a large number of uncompensated victims. While the repealed compensation system did not deal with nitrogen dioxide emitted from cars traveling on a highway built 15 years ago, the suit demands an injunctive order on nitrogen dioxide as well because the highway system is now the more significant polluter of Kojoshi. A "team" of 218 lawyers was formed. Forty of these are "active" in the case, and the rest have consented to be listed as a show of support for the case. Seven to 10 of them work on the lawsuit more or less full time. Most of these active lawyers work in law firms that are of medium size by Japanese standards (6-12 members), and it is quite clear that their largely uncompensated work on these cases is being subsidized by the other, more lucrative work being done in these firms. The litigants' organization has evolved into a quite sophisticated social movement. It prints and distributes glossy brochures (some in both Japanese and English) detailing their case for continued support, it produces a publicity campaign involving public speeches and articles for newspaper and television coverage, and it operates a permanent litigation office near the district court where the lawsuit is being heard, with a staff that works on the litigation full time, stores records, and maintains computer contact with legal directories. Lawyers' fees have been minimal thus far, and lawyers we have interviewed expect most of their work to be uncompensated. Support for the lawyers and for the organization's litigation office is produced by a monthly "membership" fee charged each litigant. Both lawyers and victims agree that final judgments in the courts are not likely to come earlier than around 1998, at least 10 years after initial filing of the case. In the 3 years since the case was filed, more than 20 of the litigants have died. 14 automobiles. Automobile pollution has risen sharply in most urban areas and constitutes a special threat in Kojoshi because of the 16-lane expressway built through the heart of the area. 14. This figure has been revised upward every time we have conducted interviews for this project.



Law and Social Movements


LITIGATION IN CONTEXT: ACTION NETWORKS The facts outlined above are the bare bones of the case history. We have told it as though litigation were the logical culmination of events. It is the kind of description one might have seen some years ago in an article on "access to justice," with the emphasis on the severe handicaps faced by these victims because of inadequacies in the Japanese legal system. As described, with the delays involved, it also might be taken as additional evidence in support of Hamilton and Sanders's psychocultural argument that "[!Jack of [legal] alternatives-essentially lack of a 'court of last resort'can contribute to endless controversy" in cultures that, like that of Japan, "do not look to the courts for an acceptable resolution to conflict." 15 Our research, however, leads us to view both of these approaches as inadequate for understanding this situation. In the face of restricted "access to justice," a determined social movement can turn barriers into a positive element of strategy for precisely those who "suffer" most from "deficient" legal resources. The scarcity of legal resources does not necessarily stifle grass-roots social movements in their efforts to pursue justice and social change, though the scarcity may significantly restrict opportunities for the individuals who make up the movement. Instead, the scarcity of legal resources can be factored into a social movement's calculations and become a source for its revitalization as well as the basis for maintenance of control over the movement's direction. Rather than exemplifying what Hamilton and Sanders see as a general "difficulty of containment" of conflict, 16 we believe the continuing chain of events in these pollution cases represents a quite highly scripted pattern of conflict that only appears to be "uncontained" because its unfolding is not significantly governed by decisive judicial action. Nor should the duration of this activity be taken as evidence of the kind of structureless floundering that is implied in Hamilton and Sanders's expression, "endless controversy." 17 The controversy may be long-lived, but a better label for it would be "sustained opposition." Our interviews show that participants in the formation of the victims' organization in Kojoshi already had, or later developed, contacts with people in other areas where pollution was becoming an issue. We know also that they were aware of some details of the "Big Four" pollution lawsuits. Some of the leadership of Kojoshi's victims' organization participated in 15. Hamilton & Sanders, Everyday Justice 215 (cited in note 7), argue that social sys· terns lacking in legal resources may be "fragile" because they lack the means to absorb con· flict through means other than reliance on norms of harmony. Hence, they say, when conflict does break out in a "harmonious" culture, it is likely to be difficult to contain, to be unnecessarily protracted, and to involve unpredictable battles. 16. Id. at 214. 17. Id. at 215.

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation

the "study groups" of victims' organizations in neighboring cities which were preparing lawsuits similar to the one eventually filed by Kojoshi vie· tims. This helps to explain the substantial similarity between the definitions of the problem and the actions taken between Kojoshi and other areas where air pollution activism was emerging, including the "big" one in Yokkaichi. While there are few if any nationwide organizations in Japan that compare with the mass movements in other industrialized settings such as the United States or the European Community, smaller, less conspicuous nationwide networks do exist in Japan. These similarities in the use of litigation did not occur by chance. Kojoshi victims' leaders have kept themselves well informed about the often convoluted developments and outcomes of other contemporary lawsuits that are quite similar to their own, and have been in regular contact with leaders in these other communities. We can directly trace this contact at least back to the period (the early 1970s) when Kojoshi's organization was being formed. Kojoshi victims played a part in establishing the Japan Air Pollution Victims' Association, a national organization that began as a "liaison group" (renrakukai) with other victims' groups in 197 3 and became a policy-promoting federation eight years later. In a very recent development, an almost identical lawsuit filed by victims in Kita-tonari [pseudonym], a "clone" of Kojoshi that was being polluted by Kojoshi's factories but that was located in a separate judicial jurisdiction, was adjudicated partially in favor 18 of the plaintiffs. Filed in 1978 and reaching original-trial adjudication in early 1991, the suit by about 120 victims resulted in a total award of nearly 400 million yen ($3 million) from the private industries involved, but it failed to hold government liable and it failed to impose any controls on auto emissions. Significantly for our research on the social movement aspects of this litigation, about 6,000 demonstrators were present at the district court on the day the decision was announced, including scores of members from the Kojoshi victims' organization. They joined the Kita-tonari victims in demonstrations outside the court before the final hearing and went with them immediately after the "victory" in separate teams to the various corporate headquarters of the defendant companies to confront their managements with the demand to avoid further litigation, curtail further pollution, and apologize to the victims. Political parties opposed to the ruling Liberal Democratic party have had an interest in these issues and have had some degree of contact with 18. Like most decisions in these cases, the judgment cannot be easily categorized as a "victory" or a "defeat" for either side. The amount of the settlement is enough to make individual participants feel that such cases are worth the effort, but there is also disappointment about the failure to achieve some of the larger goals. The more highly committed movement participants scan such decisions not for their immediate payoff but for their potential for opportunity or threat in pending or future lawsuits in other jurisdictions.

365 615


Law and Social Movements

616 LAW AND SOCIAL INQUIRY the victims' organization. In public, the Kojoshi plaintiffs' organization has worked hard to maintain a nonpartisan stance. For example, among the many lawyers assisting them, either in name or in practice, in their lawsuit, the full political spectrum is represented, and active leaders of both the lawyers' group and the plaintiffs' association say that wide representation was a specific goal in putting together the lawyers' team. Nevertheless, the lawyer originally serving as head of the lawyers' team is associated with the Japan Communist Party, and several of the lawyers involved in this lawsuit have been active in a variety of other lawsuits involving liberal or "left" issues such as civil rights for prisoners, illegal immigrants, disabled students, and resident Koreans, and issues involving the rights of labor unions. Resident Koreans are Japan's largest minority group and have figured prominently in recent years in conspicuous demonstrations for fair treatment. Some Kojoshi litigants are resident Koreans, but most are native Japanese. While it is a distortion to say that the victims' movement is a tool of one or more political parties, it is fair to say that the broader network supporting this litigation intersects with both the ideologies and organizations of opposition politics.

THE PROBLEM OF ACCESS Our interviews show that organization leaders approached lawyers as early as 1972 concerning their desire to sue the polluters. Their experience with local lawyers was almost entirely negative. They did manage to engage one activist lawyer in the cause. But while "studying" the potential for a suit, this lawyer became involved in another suit to enjoin the construction of the very highway which has since become one target in the current Kojoshi antipollution suit. That lawyer "drifted away" into the highway case because, according to victim leaders, it seemed too difficult to prove the causal link in the sulfur dioxide pollution cases, while the proposed highway, as an obvious "nuisance," was considerably easier to litigate. On a later occasion, described below, lawyers told Kojoshi victim leaders that a lawsuit was unjustified, since the government had already established the compensation system. The picture of victims' experiences with the legal system thus appears at first to be a classic example of "access denied," because of a legal profession reluctant to squander its scarce resources on a difficult case involving issues they considered to be already settled. We also know that the victims' current involvement with lawyers and litigation came about through a combination of chance, determination, and public shaming. A victim leader was invited to a local bar association conference where she asked for help in organizing a lawsuit. Turned down, for the same reasons mentioned above, she took a group of 50 victims to a meeting of the Young Jurist's League (Seihokyo), a liberal-activist organiza-

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 617

tion which included both judges and lawyers seeking to reform the legal system. This group, especially a subcommittee of lawyers involved in air pollution cases in other "designated zones" (including the infamous Mina· mata mercury poisoning cases), advised her to carry her story to a nation· wide conference on human rights held by the Japan Federation of Bar Associations (Nichi-benren) in 1985. When she related her story of her groups' previous negative experience with lawyers, her audience squirmed with shame, especially those who were lawyers from the district that in· cludes Kojoshi. Immediately after her speech, she was surrounded by chagrined lawyers offering free legal representation for members of her or· ganization. The core of the present lawyers' group was formed on the spot. The strategy for the lawsuit was planned in a series of meetings that culminated in the December 1988 filing of the case.

LITIGATION: OPPORTUNITY AND STRATEGY IN THE FACE OF SCARCITY Everyone we have interviewed agreed that, in the context of Japanese courts, a suit of this kind is likely to take I 0 to 12 years before even a first judgment. The Kita·tonari case, like earlier cases in two other "designated zones," lasted at least that long. From an American perspective, such delays appear extraordinary and suggest a major problem of access. Surely the time and money resources of the "haves" will advantage them in a battle between ordinary working class citizens and the government-backed industrial complex of Japan. Similar delays occur occasionally in some of the largest, most politicized cases in the United States. But a local case such as Kojoshi's, which has not received national attention, would be unlikely to face anything close to a 10-12-year delay, especially in view of the fact that most of the legal issues involved, and most of the factual questions, are almost identical to those involved in previously adjudicated cases. The sources of delay in Japan are legion and can be summed up as a planned and well-executed government policy to restrict legal resources. For example, since class action suits are not accepted by Japanese courts, the Kojoshi action is defined as a large number of similar cases filed at the same time and handled by the same lawyers. Hence, when Kojoshi plaintiffs petitioned to have the usual filing fee (0.5% to I% of the amount of the suit) waived because of their inability to pay, the presiding judge decided it was necessary to review every one of the litigants' financial situa· tions to rule on that preliminary motion for each plaintiff. The process took more than a year and a half. When that was done, the defendants appealed the decision on a subset of the cases and succeeded in having



Law and Social Movements

618 LAW AND SOCIAL INQUIRY them added to the list of plaintiffs who would have to pay. 19 The appeal, of course, added several more months to the suit. Another source of delay is the frequent rotation of judges. Such cases are heard by a three-judge panel, and when any one of them is reassigned to another court, the new judge must spend time becoming acquainted with all the details of each of the 500 "cases." By 1992, one of the judges involved in the early Kojoshi case hearings had already been transferred elsewhere. The most fundamental source of delay may be simply the strict control that the Japanese government, in cooperation with the major bar associations, maintains over entry into the legal profession. In 1988, government policy limited entry into the special training facility that serves as the gateway to becoming a judge, prosecutor, or private attorney to 500 per year. 20 The relatively small profession, on both sides of the bench, is not designed to grow with demand. Rather the stated aim is to preserve the highest quality of ethical service that can be achieved through tight regulation. Delay is so taken for granted that the lawyers in the Kojoshi case knew they could wait until well after the start of the lawsuit (spring 1991, as it turns out) to begin interviewing their clients in detail about their symptoms. These interviews were needed to be sure that client descriptions of symptoms would conform with the technical terms of the compensation law in question. Such clarification was simply not needed prior to the filing of the case because the lawyers knew they would have plenty of time. Most literature on law-centered dispute processing suggests that extended delay is likely to deter people from pursuing litigation and that delay is usually advantageous to only one of the two opposing sides. It is surprising, therefore, to find that in this case, both sides appear to see delay as at least partly advantageous to them. Several of the defendant companies in the Kojoshi case are the same as those who "lost" in the Kita-tonari case. As a plaintiffs' lawyer points out, these defendants know perfectly well what the Kojoshi plaintiffs will be arguing in their own cases, because the arguments will be the same as those which brought partial victory for Kita-tonari plaintiffs. Yet the defendant lawyers in the Kojoshi case are engaged in exhaustive cross-examination of each Kojoshi plaintiff, 19. All litigants will eventually have to pay something. The issue here was only about which litigants had enough income to warrant demanding up-front payment rather than payment deducted from the amount they may "win" at the end of the case. Plaintiff's are charged a percentage based on the difference between their claim and the final judgment. Thus, if they "win" 70% of their original claim, they must pay 30% of the litigation fee. If they "win" only 20% of the claim, they pay 80% of the fee. 20. In 1992, professional organizations and the government agreed to increase this number from 500 to 700.

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 619

causing further delay, even though everyone in the courtroom knows not only what the questions will be but what the plaintiffs will answer. Hence delay appears to be useful to the defendants. Yet delay also has come to figure in the plaintiffs' lawyers' strategies for maintaining commitment and a sense of progress among the victims. A new group of plaintiffs has been added to the original group of 500. The purpose is only partly to compensate for the attrition of original plaintiffs and to increase pressure on the defendants. In addition, as the lawyers' team sees it, the action helps to recharge the determination and commitment of the original plaintiffs. It helps to "maintain a sense of momentum," in one lawyer's words. 21 Evidently the risk of lost momentum, lost commitment, is a matter of concern among the plaintiffs' lawyers and movement leaders in this case as it has been in other cases. This difficulty is one major reason why a peculiar "deal" between plaintiffs and defendants' attorneys has become a standard feature of such suits. Plaintiffs and defendants have agreed that if a money judgment is made in favor of the plaintiffs, the defendants will immediately (in court before anyone leaves) sign and hand over checks in the proper amount to the plaintiffs' lawyers. These awards will be deposited by plaintiffs' lawyers and the principle will not be touched until after all appeals have been settled. Only the interest will actually be given to the plaintiffs themselves to tide them over until the "end" of the case. Both sides have reasons to accede to this arrangement. Defendants prefer it because: 1. 2.

It protects the major portion of the award from being "squandered away" by plaintiffs of modest means who cannot repay such amounts if they should lose on appeal; It protects the companies from the embarrassment of a typically well-publicized (often televised) visit to their headquarters by court officials demanding payment of the award. By immediately handing over the check in court, they minimize media sensationalism about their loss.

The plaintiffs' lawyers and organization leaders feel this arrangement benefits their movement. For one thing, by putting control over the award into the hands of the lawyers, the collective nature of the litigation is reaffirmed. In the Kita-tonari case, for example, 17 of the plaintiffs "lost" by being denied any monetary compensation. But because all the others 21. Our interpretation notwithstanding, our discovery that plaintiff leaders and lawyers consider delay advantageous may simply reflect the fact that only three years had passed since filing of the litigation when we completed data collection in 1992. Delay could become seriously disadvantageous if several more years pass before some kind of conclusion, a point we intend to monitor in future research.



Law and Social Movements


"won" and their winnings were pooled by this arrangement, the 17 losers could be included in the overall dispersal of funds from the interest generated by the collected awards. The "deal" thereby defeats the individualizing effects of the legal system's procedures and juridical definitions. Second, prior experience has taught movement leaders that individual plaintiffs tend to drift away from the movement as soon as they receive awards in their lawsuits. By pooling the awards and dispersing the interest on a collective basis, the group's leaders can forestall this disintegrative tendency. This social movement logic also leads to the view that delay, in itself, is not necessarily bad, so long as a sense of momentum can be maintained. Once engaged, litigation carries with it the threat that any truly final outcome, whether victory or defeat, will pull the rug out from under the movement. In discussing this last bit of strategy with both plaintiffs' leaders and their attorneys, we discovered potentially divisive differences between them concerning both short· and long-range objectives. The discovery of differences between lawyers and their clients is, in itself, not particularly surprising. Previous studies have shown a variety of ways in which lawyer/ client interests diverge. 22 Lawyers, for example, are depicted as agents of compromise, bringing their clients into line with "the facts" of law, litigation, and what is realistic. Business clients resist the "legalizing" initiatives of their own lawyers. Lawyer language mystifies the average client. Therefore it should not be surprising to find lawyer/client disagreement in Japan. However, the situation here is different enough from already published reports to warrant special attention, especially since it appears to bear on our understanding of the "natural history" of this social movement. In our research, there is a longer-term dynamic between litigants and their lawyers that suggests the flow of influence in both directions. For one thing, the "interests" 23 of plaintiffs in this kind of case vary greatly from one plaintiff to another. These differences must somehow be reconciled if the litigation project is to proceed. We have found that four different 22. See, e.g., Austin Sarat & William L. F. Felstiner, "Law and Strategy in the Divorce Lawyer's Office," 20 Law & Soc'y Rev. 93 (1986); Stewart Macaulay, "Lawyers and Consumer Protection Law," 14 Law & Soc'y Rev. 161 (1979); Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: Free Press, 1985); William M. O'Barr & John M. Conley, "Lay Expectations of the Civil Justice System," 22 Law & Soc'y Rev. 137 (1988). 23. Wilhelm Aubert, "Law as a Way of Resolving Conflicts: The Case of the Small Industrialized Society" in Laura Nader, ed., Law in Culture and Society (Chicago: Aldine, 1969). Here Aubert proposed distinguishing between conflicts of interest and conflicts of value. Dispute transformation literature has presented this dichotomy as a dimension along which lawyers try to move conflicts from the more intractable value side toward the resolvable side of interests. As the following discussion demonstrates, actions in the Kojoshi case do not neatly support either the distinction between conflicts of interest and of value or the view of lawyers as agents deemphasizing values.

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 621

kinds of concerns and interests motivate plaintiffs in the Kojoshi case and that these create different and potentially conflicting sources of reaction to what the lawyers are doing. First are what we call Money Crusaders (MCs). These plaintiffs seek nothing more than a quick and lucrative settlement and have marginal involvement in the movement. One such plaintiff readily admitted that he joined the victims' organization just so he could litigate. He had had no previous interest in the movement but assumed that membership in the larger organization was a prerequisite for membership in the litigants' group. 24 For Money Crusaders, the machinations of lawyers making arrangements that exploit delay to invigorate the movement would be seen as irrelevant or counterproductive if they knew of them. But their involvement is so marginal that they simply bide their time and "fill in the forms" in order to keep their place in the legal proceedings. MCs are also the most vulnerable to litigant attrition. Their desire for compensation can be subverted by threats made by defendant companies against their jobs, or against, for example, prospective spouses who can be scared away from marriage by threats to their economic well-being. We call the second type of litigant the Local Crusader (LC). LCs see the monetary outcome as significant only for its symbolic value. They seek justice. They want a "final reckoning" with the specific adversaries they have taken to court. Victory in court is only one of the ways they seek to achieve this. They will also join in demonstrations at company offices and participate in "for television only" actions that they see as building pressure on defendants to "do the right thing." For this group, the largerframe strategies for sustaining the social movement are potentially at variance with their own pursuit of closure, of final justice. Yet their more ideological involvement means that their aims must be accommodated in the litigation plans so that their participation will continue. A third, much smaller group we call National Crusaders (NCs). Ideologically similar to Les, but with a broader and longer range vision, NCs treat the lawsuit as part of a process of engaging ordinary people in actions which create, maintain, and, if possible, increase pressure on Japan's business/government combine (what they see as a kind of Japanese "power elite"). For them, litigation is part of an arsenal of actions that pressure decision makers to rethink plans for development, expansion, economic growth, and the negative environmental (and social) consequences. Finally, among victim group leaders, whom we classify as World Crusaders (WCs), there is a broader agenda yet-that of mobilizing a global environmental awareness and movement that will protect the environment 24. A litigants' group leader and a lawyer assured him (to his surprise) during the interview that all victims, whether members of the larger association or not, had been welcome to join the litigants' group as a litigant. His previous nonmembership in the umbrella victims' group is simply an indication of his specific motives for involvement in the lawsuit.



Law and Social Movements

622 LAW AND SOCIAL INQUIRY in general, not just in Japan. One Kojoshi leader recently spoke at an environmental conference in Thailand because the national organization to which she belongs has become concerned about the impact of Japanese foreign aid and development projects on the environment in Southeast Asia. Other members of the national federation were delegates to the June 1992 alternative Earth Summit staged in conjunction with the United Nations environmental conference in Brazil. For NCs and WCs, the tension with their lawyers comes from a different kind of concern. Since they see the objective as lying beyond the limits of their town and their lawsuit, they find the lawyers too focused on winning their case rather than using it for the broader campaign. For them, the delays in court are an opportunity to educate the lawyers on the case, increase their general sensitivity to environmental issues, and expand the overall involvement of the profession in the movement. They are aware of the existence of the National Committee of Pollution Opposition Counsels, which cooperates with the national victims' federation, and they seek to draw their own district's lawyers into expanded participation in it. Hence, what might have been a crisis in the case, a disabling illness to the head of the lawyers' team, is actually, to victims' group leaders, an opportunity. The illness forced the redistribution of the head lawyer's work among four other lawyers, and plaintiff group leaders view this as broadening the involvement of the legal profession in the case. "Now it is no longer all in the head of one lawyer." Kojoshi victims' group leaders hope to use their upcoming 10 years of litigation to raise their lawyers' consciousness to the level they observed among lawyers in the Kita-tonari case. They attribute the "better awareness" of Kita-tonari lawyers to their prolonged contact with Kita-tonari victims during their litigation. For NCs and WCs, as for the lawyers, delay has value because it prolongs the involvement of MCs and LCs who are perceived as likely to "drop out" once a judgment is rendered, unless the judgment can be converted into further grounds for action. There is irony in the beliefs of NCs and WCs that their lawyers need motivating and educating. Several of these lawyers see themselves as part of a long-term movement to pressure government on a wide variety of "human rights" issues including environmental pollution. They see the preservation of litigant interest, commitment, and involvement as both vital and problematic. It is true that they seek a good judgment for their specific clients and achieving this demands many tedious hours of attention to detail. It is also true that they regard the delays in court as a potential threat to continued client involvement. 25 However, they are now, and 25. Lawyers and movement leaders estimate that during the first three years of litiga· tion about 10% of the plaintiffs had become "inactive." These are victims who have unoffi· dally dropped out of the case, although their names remain on the roles as plaintiffs.

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 623

have been for years, in close professional contact with a nationwide net· work of lawyers working on cases involving pollution victims. Moreover, several of them have been involved in similar litigation for at least the past 20 years. That is, their involvement in this kind of work dates back to that point in Japan's postwar history when the "Big Four" pollution cases were focusing the nation's attention on pollution specifically and the dangers of unrestrained economic development more generally. Further, among their role models for this kind of work are lawyers whose first clients were oppo· nents of Japan's prewar military government, and who later went on to lead the litigation in the "Big Four" pollution cases. An unbroken chain of pollution cases has kept the basic issue before the courts almost continu· ously since the 1960s, and one objective of lawyers involved in the Kojoshi case is to "keep up the pressure" on government and industry to move away from total commitment to economic development toward a greater concern for other issues such as the environment. From the perspective of lawyers with this longer-range view, there is a persistent need to support and direct the Kojoshi movement and others like it from above. Yet as we have already seen, a significant subset of plaintiff leaders view the lawyers as too narrow in their thinking and com· mitment. From both sides, however, we sense that the "poverty of resources" within the Japanese legal system comes to serve as a potentially valuable tool in long-range strategies of change. Significantly for our comparison with the United States, all the law· yers involved in the Kojoshi case, and lawyers we have interviewed who were involved in some of the "Big Four" cases, say that they are not con· cerned about setting legal precedents with their litigation. American law· yers would describe their actions as designed either to take advantage of precedents set in previous cases or to obtain judicial rulings that will set new precedents favorable to their nationwide movement. Such rule making is not an important goal in such cases in Japan. While this is a significant verbal and conceptual difference between Japanese and American lawyers, in practice it may be less significant, since the overall Japanese oppositional strategy of maintaining a steady stream of similar lawsuits appears to be designed to maintain an unavoidable pres· ence in the political and governmental arena so that those forces interested in cutting back on environmental protection and victim compensation will not be able to act without restraint.

Lawyers explain this phenomenon as a response to "pressure" put on plaintiffs by family members and/or employers. Family members, for example, may find their search for a job or a spouse being blocked because of their relative's involvement in litigation.


Law and Social Movements



CONCLUSION Kojoshi is not unique in the pattern its antipollution citizens' movement has followed. Even its use of litigation follows a model that we can see in several previous cases. The persistence and repetition of this pattern comes from the existence of an oppositional network involving professionals (including lawyers, doctors, and teachers) and a smaller number of grass-roots leaders who are based in local groupings of the discontented, such as the movement in Kojoshi. Litigation has, for those in the network, become part of a strategy for organizing and expressing opposition to the dominant political and economic tendencies of the postwar years. As such, this type of litigation should be viewed as a form of political action whose relevant outcomes are only partially determined by legal doctrine, the structure of legal institutions, or the attitudes of judicial officers. Litigation provides a means of assembling actors with disparate motives (all the way from Money Crusaders to World Crusaders) into a force that places and maintains environmental activism in the public arena. The apparent inadequacies of the Japanese legal system, its slow and inefficient courts, its highly restricted legal profession, become part of the context that leaders of social movements live with and use. Perhaps they would not object to a swift, inexpensive court system that would rule sternly and regularly in their favor. But leaders such as those in Kojoshi view litigation as useful even without such a legal environment. Are the lawyers and movement leaders involved in a conflict of interest here against the ordinary members of the plaintiffs' group? From their point of view, the answer is no. They see this group-based litigation as the only effective way, given the severe resource restrictions of the Japanese legal system, for any individual air pollution victim to exercise legal environmental rights. In other words, an individual victim's only hope is to contribute to the sustenance of the movement, and their specific role is that of litigant. Therefore the lawyers' ability to exploit the reality of delay is justified by its broader significance for all air pollution victims. Hence, even though Japan has a tiny fraction of the number of lawyers and courts available to activists in the United States, the Japanese legal profession and legal institutions have become a partial but regular contributor to the development of environmental protection consciousness and action in Japan. Returning to the issue of culture-based theories we discussed at the outset, we view the pattern of Kojoshi-style action as evidence that cultural difference, in this case Japan's predominance of particular conflict-avoidance attitudes, provides a weak platform for understanding what we see. Culture theorists 26 have tried to explain law-related phenomena in Japan 26. Kawashima, "Dispute Resolution" (cited in note 5).

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 625

as an expression of the pervasive emphasis on W a, the value of harmony. From such a perspective people avoid overt conflict to conform with the value. The Kojoshi experience demonstrates quite clearly that noninvolve· ment in litigation was primarily a function of the severe difficulties poten· tial litigants faced in engaging the legal system on their side. Viewing Japan through the culture lens has led some more recent analysts27 to propose a dichotomy between behaviors that successfully pro· mote the goal of harmony and behaviors that result in a kind of chaotic, uncontrollable slide into "intensified conflict" 28 or conflict that is uniquely "difficult to contain." 29 Their view is that societies which fail to develop a rich ecology of dispute-handling alternatives, including rights· based legal institutions, are "fragile," vulnerable to protracted, uncontain· able conflicts when conditions prevent the preservation of harmony. The Kojoshi litigation, and the pattern of other cases of which it is a part, are neither an expression of Wa nor an example of conflict "difficult to contain." The conflict is protracted and the behavior may appear at first glance to be "unJapanese." However, we have shown that the actions taken in Kojoshi are systematic, carefully and methodically planned, and quite clearly defined in terms of objectives and strategies. These kinds of lawsuits are part of an ongoing, overt pattern of conflict that expresses class-based divisions in Japanese society. By focusing on W a, culture-based explanations divert attention from what may be much more important differences between the social, economic, and political structures of Japan and the United States, especially those concerning connections between social class, political power, and the structure of legal institutions.

2 7. T. S. Lebra, "Nonconfrontational Strategies for Management of Interpersonal Conflicts," in E. S. Krauss, T. P. Rohlen, & P. G. Steinhoff, eds., Conflict in Japan 41-60 (Honolulu: University of Hawaii Press, 1984) ("Lebra, 'Nonconfrontational Strategies' "); Hamilton & Sanders, Everyday Justice (cited in note 7). 28. Lebra, "Nonconfrontational Strategies," at 56. 29. Hamilton & Sanders, Everyday Justice 214.



Law and Social Movements


APPENDIX THE KOJOSHI LITIGANTS' LEGAL CASE I. The Legal Issues Article 719, Section I of the Japanese Civil Code provides that those who caused damages to others through joint torts (kyodo fuho Koi) are liable for compensation. Like all other suits on air pollution, the Kojoshi litigation is based on this provision. The plaintiffs have to prove two crucial elements: (!) the causation between air pollution and their diseases; (2) whether the defendants' actions form joint torts. On the issue of causation, previous decisions in pollution cases have developed various methods to judge it. They commonly have two elements: the general causal relationship and the specific causal relationship. First the plaintiffs must prove an epidemiological, general relationship between air pollution and diseases in the given area. Second, the plaintiffs must prove, for each plaintiff, the specific relationship between air pollution and diseases of the given plaintiff. This second element is often a main point of the defense. However, these two elements appear to be related in court decisions. When the evidence about the first element is strong, courts appear to lower the level of proof on the second element. Probably because of this pattern, the complaint filed by the Kojoshi plaintiffs includes claims about the first element, while it says almost nothing about the second element. (Plaintiff's lawyers in the Kojoshi case started their investigation about specific diseases of the plaintiffs three years after the start of the litigation.) On the issue of joint torts, subjective elements such as conspiracy or shared perceptions are not required for the defendants' actions to form joint torts. Even when such subjective elements are lacking, the defendants' actions may be held to form joint torts, while levels of contribution may vary. For instance, if a company continues to operate its factories while knowing that the level of air pollution in the given area is reaching a dangerous level and that its factories are a small part of the pollution sources, the company may be held liable for joint torts in a weak sense. The company may argue for a reduction of its responsibility compared to larger pollution sources. If, on the other hand, a group of companies in the area operates with close financial and personnel relationships and if they are all pollution sources, they may be held liable for joint torts in a strong sense. Each of them may be held liable for the entire damages. The plaintiffs' complaint argues that the defendants should be held liable in this stronger sense, for they have continued their operation while clearly knowing the situation for many years. If the defendants' actions are held to form joint torts, the plaintiffs will have no need to prove specific liability of each defendant. The defense, of course, argues that the defendants' actions do not form joint torts even in a weaker sense. Arguing that there is a causal relationship between air pollution and their diseases and that the defendants are liable for joint torts, the plaintiffs seek ( 1) injunction and (2) monetary awards. In their claim for injunction, the plaintiffs argue that while there are other sources of pollution, the defendants are the largest contributors and the level of pollution will be much improved by controlling their emissions. In the claim for monetary awards, there is an element that is unique to the Kojoshi litigation. Compensation for damages generally includes two elements: (1) compensation of lost interests (isshitsu rieki) and other monetary damages and (2) compensation of psychological damages (isharyo ). While the plaintiffs of other cases sought both, the Kojoshi plaintiffs sought only the latter plus lawyers' fees. Thus, the amounts sought by the Kojoshi plaintiffs are lower than those in other cases, only up to 30 million yen, compared to 50 million yen in the Kita·tonari litigation. This self-imposed limitation reflects prior court decisions that deducted the money the plaintiff received under the Pollution Victim Compensation Law from the monetary award the plaintiff might have received by the court decision. Therefore, it was quite possible that the plaintiff might receive nothing from the court decision because he had previously received too much

Law and Social Movements Long-Term Strategies in Japanese Environmental Litigation 627 under the Compensation Law. However, scholars argue that the amount of compensation under the Compensation Law is set at 80% of the income, so that it does not include compensation of psychological damages. Probably because of this consideration, the Kojoshi plaintiffs sought only isharyo compensation, which is arguably immune from deduction. While their amounts may look too small to American eyes, they reflect prevailing judicial decisions in Japan. Looking at it this way, we may say that the Kojoshi and similar cases in Japan also seek to establish new precedents, albeit in an extremely piecemeal way. Easing the requirements on causation or joint torts will be an improvement for plaintiffs. Persuading the court on the need and enforceability of injunction as a legal remedy will be a tremendous victory. Even the holding that compensations under the Compensation Law do not include isharyo will be progress. In a country where the judiciary is extremely positivistic (in the sense of legal positivism), a small doctrinal increment is often the most that plaintiffs can expect to achieve.


Issues and Awards in the Kita·tonari Case

While the Kojoshi plaintiffs limited their claims to isharyo, the Kita-tonari plaintiffs sought the so-called comprehensive claim (hokatsu seikyu) plus lawyers' fees, without specifying monetary and psychological damages. Their claims varied between 20 million yen (for a living minor) and 50 million yen (for deceased). The court first held that there were two main causal mechanisms of air pollution in the area, one caused by sources located in the southwestern part of the area, the other caused by sources in the northeastern part. The 10 defendant companies were all located in the southwestern part and, thus, are liable for only half of the damages before 1969. Then the court held that since there were other sources of pollution, the defendant companies contributed to less than 35% of pollution in 1970 and less than 20% in 1973. Each defendant's liability to each plaintiff was to be calculated according to this scheme. Furthermore, the court took into consideration the compensation each plaintiff had already received under the Compensation Law and under a neighboring major city's ordinance and deducted part of such compensation from the total amount of award each plaintiff should receive. Thus, the court held that seven plaintiffs had already been fully compensated. As defendants, the government and the highway corporation were held not liable in the court's decision. The key to this decision was the problem of proving causation. The court held that while the causal relationship between sulfur dioxide (from factories and power plants) and the diseases was proven, there was no proof of the causal relationship between nitrogen dioxide (from highway traffic) and disease. Thus only the 10 companies were left as liable defendants. The court held, moreover, that the defendant companies were liable for only part of the damages and that part of this limited liability had already been covered by other compensation schemes. The net result was 357 million yen (about $3.36 million), which was only about 3 million yen ($28,000) for each plaintiff. The basic problem behind all this is the way in which Japanese courts estimate the value of human life. We should note that the maximum compensation sought for deceased victims was only 50 million yen. This reflects the going rate in court decisions. Moreover, since the defendant companies are only part of the cause, they compensate only part of the entire amount. Therefore, monetary compensation is only a small part of the plaintiff team's calculation of success or failure of the litigation. More important is the achievement of a finding that there are uncompensated pollution victims and the development of legal doctrines that would make this type of litigation slightly more winnable.


[14] Fufubessei Movement in Japan Thinking About Women's Resistance and Subjectivity* Ki-young SHIN

This study aims to address cultural power of the Japanese family/law and the women's resistant movement to it. It focuses women's 'everyday' form of social movement in order to keep family names in marriage, called 'fufubessei.' In doing so, this paper discusses how Japanese women's everyday legal mobilization provides a cultural space through which women resist the state's construction of their subject positions in marriage and develop their new subjectivities. It argues that family name serves both as symbolic embodiment of cultural/state patriarchy and a contested cultural and legal terrain where various forms of women's resistance take place. Women's challenge to the reified gender roles represented in family name change led them to create negotiated "individual" subjectivities through their creative use of formal law that the law does not expect.

Key words :

family law


legal subjectivity

women's movement

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L Introduction During my fieldwork on the Japanese women's family law reform movement in Tokyo in 2003, a group of Afghan women, after the fall of Taliban government, had been invited to the Japanese women's university to give a speech on their past experiences and expectations on the fu· tu re. They emphasized the importance of women's full political citizenship and the equal status in family. To achieve those goals, they called for family law reform as much as the new democratic constitution. The talk intrigued me by the coincidence that women in both Afghanistan and Japan, and in fact in many other areas in the world, are struggling against various forms of familial patriarchy bolstered by the state legal sys· tern. Apparently, in Japan, the democratic constitution of 1946 and the formal gender equality in revised family law of 1947 did not guarantee a society in which women could enjoy equal participation in political life and equal partnership in family. Women in Japan live in a palpable discrepancy between the ideal of legal equality and the reality of gendered family life, which perhaps the Afghan women, committed to a new democratic constitution and family law, would not expect to see in such a liberal democratic society. Virtually all social relations in Japan seem to be practiced on the basis of visible gender norms : nonetheless, formal legal equality is widely proclaimed. In such a society where everyday family life is not seen as an arena that "rights claims" apply to, and the realization of gender equality in daily family life is not considered a constitutional concern, how do Japanese women negotiate their formal legal equality and the contradictions they are experiencing in their family life? How do women deal with the familial power relations occupying their private identities? Will their resistance, if any, produce new emancipatory subjectivities? From these questions which we may ask ourselves in our daily life I began my study of the Japanese women's family law reform movement ; a movement that has been carried out in a quiet, self-restrained way in women's daily lives. This paper is part of my attempt to answer these questions through conversing with Japanese women in the family law reform movement. The family law reform movement is not one single organized movement Two pillars of this reform movement are 'marital family naming' and 'discrimination against children born out of wedlock."

In many cases in contemporary Japan, these two problems are interlocked. In this paper,

however, I will mainly focus on Japanese women's movement to keep their family name in marriage, that is, to refuse to change their names to their husband's. This movement called 'fufubessei (~~551J~)' -literally meaning 'husband's and wife's different surnames'-gained significant currency among the Japanese public since the 1980s. By studying the women's movement to keep their own names, I would like to bring to light particular ways in which family name shapes

Law and Social Movements

380 F-GENS Journal No.2

SejJtembet 2004

women's relationship to the family and the state. Through their involvement with, and challenge to the state family law in the movement, women

forge new subjectivities, from which the possibility of social change was entailed, if not always intended by them. I will suggest that a subtle reading of women's struggles over the family name reveals an intertwined relationship between the Japanese family system (ie) and the state's construction of gendered family through law. Starting from women's agency in movement to resist the state law, I believe, is best way to mustrate how cultural and state power is exercised in women's lives2• It is thus my deliberate effort to approach this task by reading social problems from women's standpoint and understanding social change from women's movements. In doing so, I aim to demonstrate how everyday legal mobilization for marital naming comes to be an important site for the contestation of Japanese women's gender norms and the state ideal of "the Japanese family",

II. Family, Family Name, and Family Law: Hollow 'Choice' of Family Name When the new Constitution was put into effect in 1946 in post-war Japan, article 14 and 24 declared equal status of men and women before law and most importantly equality in family life3 . Japanese Civil Code was amended the next year in accordance with these Constitutional articles. The legal status of women was revised to be equal to that of men. They came to be entitled to the same rights to inheritance ; freedom of marriage; custody rights, etc. Two articles, however, bore seeds of future controversy: marital naming and discrimination against "illegitimate" children in inheritance. As for the marital naming issue, Japanese Civil Code article 750 stipulates that a married couple decides either husband's or wife's family name as their family name upon marriage, The law obliges married couples to choose either one of their names, but does not allow for both spouses to keep their family names nor create a new one. Apparently, Japanese women are granted an equal right as their husbands to 'choose' their names in marriage. It looks as if the family name were chosen upon a couple's consent to what they freely decide as equal beings. However, in practice, it is reported that about 98% of Japanese women take their husband's names in marriage. Recently, enforcement of one single family name against one's own will upon marriage was declared unconstitutional in other countries4

The fact that98

%of Japanese women take their husband's names in marriage when the couple must decide either of their names as family name means that the state authority de-facto forces almost all wives to change their names as a prerequisite of marriage registration. However, the question of couple's marital naming goes far further than the liberal feminist concerns of formal gender equality in marital naming. The social, economic, and political functions of family name in Japan are very specific in which family name functions far beyond an expression of individual citizen's private identity or representation of moral bond among family members. The meaning of family name needs to be understood in its relation to the cultural function of Japanese family institution (ie) and Japanese state's family registration system (kosek1). The family name, I argue, is a symbolic metaphor that embodies the cultural power of Japanese family, ie and the state governance of population grouped into a legal family institution, koseki. Particular meanings and functions of family name in contemporary Japan become evident by shedding light on women's resistance to the compulsory change of marital name. I will take my ethnographic example of Mrs. Tanaka 5 , whom I met during my fieldwork to spell out this complex nature of Japanese family name : the family name as a signifier of cultural norms of ie and the state's governing principle of family koseki. Mrs. Tanaka was a visitor to one of the local women's meetings for family law reform. It turns out her only daughter, who had a boyfriend, became pregnant unintentionally. Living in a small, close-knit town, the family was so concerned about bad reputation that they finally decided to have the college student daughter marry her boyfriend He was also the only son of a typical Japanese family, the Hasegawas, living on the farmland the family had worked for generations. Both families agreed to marriage on principle. However, when it came to the family name of the couple, two families could not reach an agreement, since unlike many ordinary brides' parents, Mrs. Tanaka insisted that the groom should change his name, Hasegawa, to Tanaka. lt is only in exceptional cases when a husband 'leaves' his family and 'enters' wife's family; for instance, a prestigious family without a son 'adopt' a son-in-law as an heir to carry on family name and family business. Far from being a prestigious family, the Tanakas, nonetheless wished "adoption" of the groom. They asked the groom to become a Tanaka to carry on their family name, since she was the only daughter of the Tanaka family. This request angered the groom's family. For Hasegawas, it was more than commonsensical and customary to have daughter-in-law change her family name into husband's and become a member of husband's family. Becoming an adopted son of wife's family was not a pride for husband, nor his family. 'Normal' families would not allow their sons to be an adopted son of wife's family, since husband's families are the ones who 'earn' daughter in-law by marriage. Resistance to family name change constitutes part of masculinity for men, yet it is against the gender role for women in marriage. For brides, the compulsory change of family name is a public ritual to assume the expected roles of daughter-in-law (yome), which are to look after parents-in-law, produce (male) heir of the family, take care of a family tomb, and manage the housework. Change of family name on marriage thus signifies that he/she "severs" the relationship with his/her old family by transforming one's identity to that of a legitimate member of the new family. In this culture of ie, the Tanakas 'lose' her only daughter when she marries off the family and changes her name to Hasegawa. Mrs. Tanaka might well want to secure

their family identity, their family business, their retired life to be taken care of by their daughter's family whose same family name would elicit the irreversible truth of their daughter's genuine membership in the Tanaka family. Family name is not only a cultural symbol of Japanese family, ie, but also a label of one legal family unit. The marriage is not legally recognized unless the couple registers their marriage to the local government office with their chosen marital family name. Based on the registered 108

Law and Social Movements


Fufubessei Movement in Japan : Thinking About Women's Resistance and Subjectivity' family name, a new family register (koseki) is created for each newly established family. A family created through marriage has one family name and only one family register. Koseki is a modern invention of the Japanese state governance of its population. It was designed to facilitate the authority to keep track of the history of each family, the subjects' civil status change, and their familial relations. People are obliged to report their change of status to the local state authority who is accountable for the management of koseki. Every person, at birth, 'enters' her or his parents' family register as offspring. An offspring of a legally married couple is recognized as 'legitimate' and recorded as either first daughter, second daughter, or so on, in accordance to one's order of birth among siblings. Those who are born to a non-married couple or a single mother will be assumed as 'illegitimate' and recorded as 'female' or 'male' instead of first daughter, second daughter, or so on. In so doing, koseki keeps a detailed record on the legal status of each nuclear family member on one piece of paper from birth, adoption, marriage, di-

vorce, to death. Koseki has been widely used as an efficient tool for people's background checks, their ethnicity, their original caste, etc. It is managed and used mainly by the state, but private companies and families 6 are also common viewers of koseki for background checks of their employees and marriage partners. Koseki is filed for each family, not for each individual. That is to say, people are bracketed into a family unit with family name as the label. Koseki is a way of governance to prevent any individual subjectivity in family law where one's subject position is only allowed as a family mem-

ber in a hierarchically ordered relation to the head of family (the so-called 'standard person'). Except for the standard person who is usually a male elder, other family members are positioned as wife, first son, second son, first daughter, etc. after him. Thus, koseki imposes order on citizens in their familial hierarchy with a male standard person at its top. lt is a detailed map of Japanese citizens through which the subjects become legible to the state (Scott, 1998 : Foucault. 1991). It categorizes people as legitimate and illegitimate, good family and bad family, deserving citizens and undeserving citizens, and so on 1 •

Through this powerful legal tool, the Japanese state penetrates into the very private sphere

of family lite for "the management of population in its depths and its details"a. The Tanakas and the Hasegawas understood that the couple had to register their marriage to the local state office with a chosen marital family name in order to persuade their neighbors and relatives that their relationship was serious and legitimate. However, the very fact that they choose a marital name for the state's sanction on it will confirm that they had chosen one family as their legal, thus true family. Even though both families can pass on their property and business to son and/or daughter, and the wife's parents often cohabit in the married daughter's residence in reality, koseki would constantly remind them of who they really are, which family identity the state legitimizes, and what the couple's proper positions are in each family. Mrs. Tanaka looked distressed and disheartened when she concluded her 'confession' with the news that her daughter had to break up with her boyfriend Hasegawa. Her daughter was pressured to abort the baby as a result. Regretting her stubbornness on keeping the family name, Mrs. Tanaka said, "if family law allows separate family names for married couple, we didn't have to suffer. My family, let alone the Hasegawas, was gravely hurt from the enforcement of one family name. I didn't realize this could happen to us" Non-registered marriage-cohabitation-was out of question at that time to both the Tanakas and the Hasegawas. For them, family name carries all the cultural baggage of Japanese traditional family culture that one could not easily break out of ; at the same time, it was symbolic evi: dence of the state's sanction for the 'right' form of marriage that reinforces the very cultural meanings of ie. Current family law was supposed to dismantle the old hierarchical Japanese family system and establish a democratic family system based on the assumption of liberal rights-bearing individuals. However, by preserving family registration system koseki and most of its cultural functions, the fundamental structure of old family remains alive in a modified form. The current 'democratic family law' misleads by suggesting that 98% of wives submit to their husband's family name as a natural consequence of women's choice of husband's name rather than as an expression of state-supported gendered family structure. The 'choice' of one family name has been in fact sustained by women's relinquishment of their names, and of their families. When women attempt to restore their rights to choose family name, the option of choice turns out to be an illusion. Moreover, women's resistance puts all family members into such suffering as the case of Mrs. Tanaka and her daughter illustrates9.

Ill. Japanese Women's Politics of Resistance in Fufubessei Movement I argue that family name change in Japan is, on the one hand, a congealed expression of Japanese family ie where family members assume particular gender role, hierarchical familial position, and negotiated identity, and on the other hand, a political label for a legal family unit, codified through koseki through which the Japanese state governs its subjects. Now I shift attention to the women in resistance to those identities Japanese family name directs them to assume. In this section, I will demonstrate that the family name further serves as a contested cultural and legal terrain where various forms of women's resistance take place. These forms of resistance may not aim to bring about a swift social change at any structural level ; however, they pose a radical challenge to the ways in which Japanese think about the right form of family and women's positions in it. It suggests that mobilizing from the margin can constitute a force to problematize the hegemonic discourses of the 'natural', 'customary', and 'cultural' Japanese family, at which the possibility of social change can be located The change and reform which resulted from this movement might differ from what women in movement wished for, yet it is this movement that initiates the first wave of largerscale social change. 1 would like to situate my discussion of Japanese women's family law reform movement in this context of social change. Local Fufubessei Groups: A Cultural Space The very strong presence of Japanese state permeating daily lite is coupled with a critical sense of deprivation of subversive space for those



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social groups in opposition to the state's cause. Their own space, out of the reach of the state, allows them to generate and articulate alternative discourses. Local women in family law reform movement started their movement by creating spaces of their own. Women talk and share

their experiences in this space, whose discourses have come to be viewed as subversive of the current Japanese family norm. This space constitutes various forms of local meetings in which both members and visitors can freely participate. In addition to group meetings, newsletters and internet chat rooms, websites, and emails also serve as a discursive space among larger groups. These meetings were getting organized in the middle of the 1980s through the early 1990s, when women in many different regions began to protest the fact that the Japanese Civil Code forces women to change their names upon marriage. Those women who came to perceive it as odd and unfair to wives began to organize small local meetings to talk about what it means to them to be pressured to change their names against their own will. Many big cities such as Tokyo (October1984, 'Fufubessei wo susumeru kai'), Osaka (1988, 'Kekon kaisei wo kangkaeru kaP), Chiba (September 1989'Fufubessi no

houseika wo jitugensuru kai-chiba'), Sendai (September 1991, 'Bessei wo kangkaeru kai'), Nagoya (December 1988, 'Aichi bessei no kai'), Tottori (May 1989, 'Tottori fufubessei to josei no chiikoujo wo kangkaeru kai'), came to see the advent of local women's meetings to bring into question the social custom of marital naming' 0• These spontaneous meetings developed into the local fufubessei movement groups as the participants organized meetings on a regular basis and the number of the participants increased Spread quickly all over Japan throughout the 1990s, these local groups drew high media attention and the conservatives regarded tufubessei as a serious threat to Japanese traditional family values. Fufubessei meetings are voluntarily and independently organized. They only have a loose network among local groups to share information on their activities, local experience, and the developments regarding law reform in the Diet. All of them were led by local women who were women lawyers, school teachers, civil servants working at various local government divisions and quite a number of housewives. Japanese women's family law reform movement urges rethinking about commonly known social movements. Tarrow defines social movements as "collective challenges by people with common purposes and solidarity in sustained interaction with elites, opponents, and authorities" (1998 : 3 - 4) 11 •

He characterizes social movements with two elements : 1 ) contentious collective action that does not fall into the normal

institutionalized framework of political action : 2) the sustained sequences of interaction with elites, opponents, and authorities. Japanese women's fufubessei movement, too, has some characteristics that would apply to the concept of sustained social movements that Tarrow defines. However, two elements above that Tarrow generalizes for soda! movement do not comfortably fit Japanese women's fufubessei movement. It was not organized by any sort of effective network among members based on strong leadership at the center, and it is not defined as sustained interaction with elites, opponents, and authorities. It is a diffuse and de-centered form of women's movement in its network and lead· ership. What is most conspicuous about Japanese women's fufubessei movement is that the participants do not attempt to make direct interactions with elites, opponents, and authorities that Tarrow seems to emphasize for contentious politics. To the contrary, critical for Japanese women in the movement is to preserve their space out of the reach of the opponents and the state : not to confront them These particular forms of movements resonate with what women's movement theorists argue about the gendered opportunity structure, "as an outgrowth of the way nation-states constructed their politics on gendered lines, women are institutionally disadvantaged in contests waged on "men's" terrain. Women thus are more likely to organize outside the formal polity, in the community and grassroots contexts that are gendered female" 12 •


tural construction of women as non-political, traditional, conservative subjects also tends to shape women's organizing based on their traditional gender identities as mothers, housewives, peace-lovers, etc. that differ from male-centered movement activities. The gendered aspect of social movement certainly applies to the Japanese women's movement. Local group leaders confine their roles as helpers to reach out and consult those who are in trouble with family name change. They facilitate information-sharing and candid talks among women in distress, and provide consultation on how to deal with the family naming problems. These meetings are the social space that the movement participants create together. The movement is not aimed at mobilizing the general populace for collective political action. Rather, it claims to be an "apolitical" and diffuse local movement. However, their claim for apolitical space delivers a very political message that this space is 'safe' ; that is to say, this space is not an ideologically charged space which has been long viewed as anti-regime or potentially dangerous to Japanese society1°. This pseudo-private feminine space claims to be safe and non-political so that even housewives, so-called the least political subject in Japan, can freely participate. The discourse of participants is replete with their activities being non-political and even anti-political. They show abhorrence to anything connected to politics, and address unreliability of politicians. Most of them showed reluctance even to speak about the possibility of making conflictual confrontation with opponents. One of the leaders of tufubessei movement asserted to me, "We are helping people in trouble. That is the purpose of our activities. What we can do within limited time at our local level is to provide a space for those people who are troubled by their family names to find out possible solutions. They come and talk about their problems and feel relieved to find out that there are others in the same situation. It is a self-help group." This space is expanded through the newsletters that most local groups publish. They use newsletters to report their meetings and share new information they collected. Members of the group write their stories and express gratitude to others. They encourage each other in their cause and remind each other of their rights to names. Many 'secret' methods to take advantage of legal loopholes are exchanged. The group meetings are also for studying domestic and foreign family laws and often invite outside family law specialists to give talks. Through these activities, those who participate in the meetings could find friends of the same mind, nakama. Nakama is a Japanese term for those in the same group who have the same minds toward the same goal and who could work together with a sense of strong solidarity 110

Law and Social Movements


Fufubessei Movement in Japan Thinking About Women's Resistance and Subjectivity* Nakama is more than just a friend and colleague in the group, but one who is able to read the other's mind and work for a particular purpose

together. Though the inter-group network among local groups is weak, solidarity among members of each local group is strong ; in most part, bessei movement is dependent on the individual connection among nakamas. When women found the custom of family name change awk-

ward, they blamed themselves for being intolerant of what others take for granted. Agonizing alone, those women usually try to persuade themselves that what they feel about their name change is not right and temporary, and their demand to keep their family name is divergent from 'common sense' about what women should do in their marriage. For those women who are isolated in private power relations, the local groups appear to provide a shared public space where they finally 'come out'. Many of the women that I talked with emphasized that what was best about participating in the bessei meeting was that they could make nakama They said "I felt so relieved to know that it was not only me alone who was agonized by family name". They share their concerns, anger, and stress from family and workplace, and also brainstorm ways out of legal straitjackets. The motivations of the participants vary greatly ; from the family responsibility of the only daughter to continue the family name (as Mrs. Tanaka's case in the previous section attests to), emancipation from the traditional role of daughter-in-law in Japan, sense of lost identity as an independent person, political protest against Japanese family system, to economic disadvantage and inconvenience that change of name may cause. They all come and talk about these problems together despite sometimes radically conflicting motivations 14 Through this space of their own, they came to define an issue that had been previously defined as a 'non-issue' and used it as a vehicle to reveal the workings of the gendered Japanese family. This is how women in the movement articulate a political claim against the idealized Japanese family and gender positions while at the same time claiming to be 'apolitical.' Movement in Everyday Life

More and more women who resist the dominant gender identity that the Japanese family institution embodies are experimenting with a new form of marriage by 'not registering their marriage' to the state. These women perceive resistance to family name change as a way to emancipate themselves from the oppressive gender identity which ie and koseki enforce. Woman in coupled living without registering her marriage has been commonly viewed as having an illegitimate relationship with her partner so that she cannot or is not eligible to register her coupled life legally. This type of coupled living is seen temporary at best. However, women's deliberate 'choice not to register' reverses this negative connotation of the unregistered marriage and passive women's agency. Their bold choice is a public statement made by those women that they are choosing to live as individual selves. They outspokenly refuse to mold themselves into the gender identity the marriage registration syStem constitutes. Those women search for a new selfhood based on individuality in opposition to their familial subjectivities, challenging the only forms of subjectivities available to married women. These women in interviews often define their individuality by refusing certain expected familial positions as follows, "I hate to have obligations imposed on me and a fixed position as so and so family's person" "I don't want to be restricted to the traditional familial responsibility. Legal marriage equals the traditional role of yome (daughter in law) even today. Jf I change my family name, I am going to be obliged to look after parents-in-law, but only parents-in-law, not my parents. I am opposing this social custom." The Japanese housewife identity LeBlanc observes helps to understand the heavy cultural pressure on married women, particularly those bessei housewives. She points out that "the essence of the housewife identity is grounded in its bearer's exclusion from other possible social

identities" ( 1999 : 65).

In other words, a housewife is not seen as a person to keep her own family name or to be an individual self simply be-

cause she is a housewife who would not have reasons to keep her separate name. Being a housewife reduces her identity to a care-giver of her family. A normal housewife should not be so selfish to insist on her self-identity as an independent individual from her family A career woman may want to keep her family name, since she has a career on which change of family name would make an adverse impact. However, housewives do not have such "good reasons". Her identity as housewife excludes her not only from other social identities, but also from being individual identity separate from her family. Women's assertion of individuality in this social, cultural context is radical, hence needs to be read as resistance. They are assertive of their distinct identity as an equal individual capable of making a choice of one's own lifestyle. They say, "Not as a wife, nor as yome, I hope to live on my own way" "I like to have an equal relationship with my partner'' "My name and my family name are important part of my identity. I don't want to change it. I feel myself taken away."15 Her individuality is imagined as her individual autonomy to control who she is as a person and to declare her equality as an equal being to her partner, which the subject position of 'wife' would not allow her to be. Her separate family name symbolically signifies her individuality as a separate but equal individual from her husband By not registering their marriage to the state, a couple has two separate kosekis, one for each, that in turn symbolizes their individual identities. Her separate family register proves that she never 'entered' the husband's family. She uses the very controlling system of the state's family register in order to assert her individuality. In doing so, she takes advantage of the state's legitimacy to support for her separate selfhood from husband's family. Cohabitation without marriage is still uncommon in Japan, yet in her survey



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September 2004

study on non-registered Japanese couples, Yoshizumi finds distinct characteristics of newly emerging Japanese non-registered couples. She

finds that Japanese non-registered cohabitation is predominantly women-led and intentionally chosen as a form of resistance to the conventional marriage institution. This is significantly different from Sweden and the U.S. where cohabitation is exercised in many cases as a prior stage of marriage or experimental coupled life 16 • Unlike the conventional \dea of Japanese women as submissive, obedient, and self-restrained,

it shows that it is indeed the woman who demands the unconventional coupled life. A woman chooses not to register her marriage, and her husband agrees to her decision because he "respects her lifestyle"11 • The bessei movement represents an everyday form of resistant movement. By articulating subversive individuality and not registering their marriage to the state, yet claiming it as legitimate family life, women endeavor to carve out a new familial subjectivity. However, in many situations, they have to negotiate their individuality with other identities. Most women living coupled but unregistered confront a serious challenge when they decide to have children. Her asserted individuality could hold for her coupled life ; however, her individuality is always put to a test in her relationship to her children. Japanese family law institutionalizes discrimination against children born out of wedlock both in terms of a discriminatory record on koseki and in inheritance rights. A woman in an unregistered marriage, therefore, faces a tough decision whether she should insist on her individuality/her name and make her children legally illegitimate as a result The law pressures unmarried women with children to take moral responsibility for their children's legal status. These women are seen as selfish for sacrificing children's welfare in order to keep their family names ; motherhood is posed in opposition to women's individuality in Japanese family law. However, women negotiate their individuality and motherhood through making use of the very formality of family law. Many couples under this moral pressure often conclude to register their marriage and create a new family register. Women submit to the pressure to change their names for the children's legal status. However, even when a couple is registered as married, the wife continues to use her old family name in her daily life from workplace to her kid's school 18 •

That is, a wife uses two names: one is her legal koseki name and the other is her daily

name. Her new family name is used for the cases where only legal family name is accepted for the identification such as passport, salary roster, insurance cards, and most bank accounts 19

However, two names cause tremendous inconvenience to the wife, and confusion in her public

identity. Above all, keeping two names does not solve the fundamental problem of marital naming ; in fact, she did change her name legally. Many women who already registered their marriage and changed their names attempt to experiment bolder manipulation of law's formality : paper divorce They choose divorce on paper while remaining to live coupled. Ironically, Japanese Civil Law leaves the decision of marriage and divorce completely to the couple's free will. As long as two sides agree to divorce, no other formality such as a cool-off period is required. Legal divorce is simple and easy : all the divorcing parties need is to fill out the form tor divorce with each party's seal on it, and submit the form to the local census office. As the local census office accepts it and updates a couple's family register, divorce is confirmed. Again, the family register is the only legitimate evidence to prove your marital status. Couple's continued marriage life in practice matters little in determining their marital status. The wife reinstates her family name legally through paper divorce with her actual marriage life continuing. The neology of "pe-pa rikon (paper divorce)" testifies to its popularity and the social attention to this form of bessei movement. These couples often repeat marriage and divorce several times whenever a couple is required to prove their marital status as legal spouse. When needed, they register their marriage by submitting a piece of paper filled out to the local government office, then they divorce again once the need is exhausted. Most women that I met in local women's meetings either practiced paper divorce or seriously considered this possibility. One woman who lived with her partner for years without registration told me about her plan for paper divorce. When her partner was to be sent to another country by the company he worked for, she would have to prove their relationship as husband and wife to get a visa as dependent (wife). She was a fufubessei supporter who had decided to keep her family name. However their situation made her seriously consider that she would marry him and later divorce on paper when they came back to Japan. Those who are exercising their "rights" to divorce to keep their family name adamantly use the state law in exact opposition to the purpose of the family law; koseki does not represent the real family, nor do the state's subjects assume the familial positions they are supposed to do in accordance to their status on koseki. The resistance these women are exerting is, however, not without difficulties. In her study of the history of American marriage, Cott delineates three levels of public authorities to sanction the marriage institution : 1 ) the immediate community of kin, friends, and neighbors exercise the approval or disapproval a couple feels most intensely : 2) state legislators and judges set the terms of marriage and divorce ; 3) federal laws, policies, and values attach influential incentives and disincentives to marriage forms and practices (2000 : 5).

Those couples living to-

gether but unregistered in Japan also meet the first form of authority most intensely and often find the most difficult to overcome. Marriage means "entering husband's family register" to the extent that "entering one's family register'' (sekini hairu) is used interchangeably of the word "marriage" in everyday conversation. 1t is implied that a woman who does not enter the husband's family register refuses to become a genuine member of husband's family and furthermore is unwilling to take care of the parents-in law in the future. In addition, these women are confronting moral sanction that they are 'bad mothers' by making their children illegitimate and refusing to take care of the old and even the dead ancestors in family tomb. The various ways in which women in the movement struggle to keep their family names illustrates Japanese women's agency in resistance as they deal with all these layers of power relations.


Law and Social Movements


Fufubessei Movement in Japan : Thinking About Women's Resistance and Subjectivity*

IV. What Have They Achieved?: the Question of 'Success' As Cott argues regarding the American marriage institution, family law is the state institution that "uniquely and powerfully influences the way differences between the sexes are conveyed and symbolized" (2000 : 3). It is the vehicle through which "the apparatus of state can shape the gender order... by incriminating some marriages and encouraging others, marital regulations have drawn lines among the citizenry and defined what kinds of sexual relations and which families will be legitimate" (2000 : 4)

Starting from Catt's argument that marriage is the primary way

the state controls gender relations, I further attempted to follow Japanese women's strategies to challenge the state family law. I tried to understand the participants in the Japanese women's movement in their daily practices at the local level. Their movement mobilizes little political activism partly because women who participate in it have different motivations and there is no central leadership to manage the differences. Nonetheless, fufubessei and family law reform became one of the most controversial political agendas in the Diet. A couple of movement leaders were elected to the Diet and promised to change family law. However, some local movement leaders dispute that the current vision of family reform discussed at Diet would bring any emancipatory effects on women. Under the circumstances where women struggle against the state family law, yet ask for state support for law reform, it is difficult to identify clear power-holders that they have to fight against. Moreover, their identity as married women deprives them of a belief that they could make any significant influence on politics. However, their movement nonetheless ttiggered a meaningful shakeup that led to a break in the present gender norms. They are negotiating with their family, their neighbors, their employer everyday for a new definition of gender norms and familial custom in the face of a powerful discourse that condemns them for the 'breakup' of the family and the revived conservative backlash. At the moment, the family law reform seems to be stalled in Japan. From the perspective of law reform movement, futubessei movement would be a failed movement, since the law still remains in place. However, the broader influence on social institutions this movement has made speaks for its success. Now it is not surprising that many major workplaces allow women to continuously use their old names after marriage In 2001, for the first time, all Japanese Ministries in government acknowledged married women's use of old names Furthermore, the 2002 government opinion poll demonstrates a dramatic change in public opinion in favor of tufubessei. For the first time, public tolerance towards married women's use of old names surpassed the opposition. Social norms on women's position in family have gradually but surely been changing. This change did not come out of nowhere, but from those women's daily movement of creating their spaces, articulating new subjectivity, and manipulating formal law in current system. As one of the movement leaders says, tutubessei couples have obtained a good deal of social acknowledgment of their rights to names as part of citizenship. A couple who decide to live together but remain unregistered face the challenge of explaining to neighbors that they chose their own lifestyle to keep their own family names without guilt or uneasiness for moral criticism. Japanese in most major cities now perceive this choice as interesting, but not odd or immoral as it used to be seen. The success of bessei movement lies in this change of the paradigm of family in Japanese society. Women's resistance to marital naming is beginning to persuade Japanese society of the injustice of gendered family system in which a woman feels compelled to change her family name in her relation to


•This study was funded by 21 Century Center of Excellence (COE) research fellowship, Ochanomizu University The earlier stage of this study had also

Foucault ( 1991 : 102) One could argue that Mrs Tanaka's story is reactionary, since her intention

been assisted by The Japan-Korea Cultural Foundation Research Fellowship (April 2003-September 2004) and Chester Fritz Grant for International

is not to disrupt ie as a legal and cultural family institution, but to keep her own ie by adopting a son in law Even though I agree to such views, I

Study and Exchanges, Graduate School of University of Washington (Octo-

chose this story among many more radical and progressive stories to highlight that family name is inextricably linked to ie, but the very connection of

ber 2002-December 2002)


These two articles are major pillars of family law reform movements How-

family name and ie creates unexpected problems in modem Japanese life,

ever, despite their close connection, reform movement activists diverge on the strategies, and the urgency and priority of one article over the other

even in those lives firmly grounded on the ideas of ie 1O According to my interviewees, the direct movitation was more complex Some said these groups were organized to put pressure on the Ministry of

This divergence also brought to the fore when the optimistic movement activists confronted the strong backlash that Japanese society witnesses from

Justice where the bureaucrats had been already considering family law revision Some later groups were also organized after they heard about other fufubessei groups' activities Nonetheless, virtually all local groups were or-

1990s on 2

l was influenced by Abu-lughod in her method oi "resistance as a diagnostic of power" See Abu-Lughod (1990)


Article 14 declares the general principle of equality regardless of gender, re-


ganized independently and voluntarily

ligion, and social status, while article 24 specifically protects equality within

11 SeealsoMcAdam (2001) 12 Ferree and Mueller {1994), see also Molyneux {1998), Offen (2000)

family This article 24 is evaluated to be very advanced in terms of pro-


claiming gender equality even among those constitutions in liberal democratic societies Most recently, the Thai Constitutional Court declared enforcement of same

Student movements including antl-Vietnam demonstrations in the1960s were subdued and cracked down violently by the government Also women's liberation movements in the1970s were portrayed as extremely radical move· ments The failure of major social movements in Japan contributed to the making of dangerous image of social movements and significantly cut down

family name to a married couple against their will unconstitutional in June, 2003 Also in Turkey, married women can keep their family names in mar-

its legitimacy as a way of political demands 14 The diversity oi motivation and thus diiferent strategies seem to have been deepening over the last two decades This paper, however, does not focus on the politics of women's interests/needs in family law reform movement I

riage after the 2001 Civil Code revision 5. For the purpose of privacy, I use pseudo-names in this paper 6 This is possible, for koseki is in principle public 7 At the same time, it is a marker for Japanese citizenship that draws a line


against others of foreign origin who are not entitled to create koseki


address this issue in other places Quotes from my interviews, Yoshizumi (1997), and Association of Tokyo


Law and Social Movements

F-GENS Journal No.2

SejJte111be1 2004

Lawyers ed


Pharr, Susan J

16 Yoshizumi, ibid 17 Yoshizumi, ibid p 42-43 18

(1990) Losing Face: Status Politics in Japan, Berkeley: Univer-

sity of California Press Sarat. Austin and Thomas R Kearns, eds

It may be similar to women's separate professional names in many western

(1995) Identities, Politics, and Rights,

Japan, it has more than 'professional' meaning, since women's work is not

Ann Arbor : University of Michigan Press

seen as so professional in the first place, also many housewives practice

Scheingold, Stuart A

fufubessei who do not have the career 19 Broad currency of

(1993) Law in Everyday Life, Ann Ar-

bor : University of Michigan Press

societies where women's marital name change is customary However, in

(1974) The Politics of Rights: Lawyers, Public Policy, and

Political Change, New Heaven: Yale University Press

tutubessei has expanded the acceptance of women's

Schneider, Elizabeth M

separate names Now many insurance cards are issued with women's sepa-

(1986) "The Dialectics of Rights and Politics: Per-

spectives from the Women's Movement," New York University Law Review

rate names


Schwartz, Frank J and Susan J Pharr, eds 2003, The State of Civil Society m Ja-


pan, Cambridge University Press

Abu-Lughod, (1990) "The romance of resistance: tracing transformations of

Scott. James C (1985) Weapons of the Weak: Everyday Forms of Peasants' Re-

power through Bedouin women", American Ethnologist, Vol 17, No 1, Feb

sistance, New Heaven: Yale University Press

Comarolf. John, (1995) 'The Discourse of Rights in Colonial South Africa:


(1998) Seeing like a State: How Certam Schemes to Improve

Subjectivity, Sovereignty, Modernity," In Identities, Politics, and Rights,

the Human Condition Have Failed, New Haven: Yale University Press

Austin Sarat and Thomas R, Kearns, eds, Ann Arbor: University of Michi-

Tarrow, Sydney G . (1998) Power in Movement: Social Movements and Conten-

gan Press

tious Politics, Cambridge [England]

Cott, Nancy F (2000) Public Vows: A History of Marriage and the Nation, Cam-

New York

Cambridge University


bridge : Massachusetts, London : England, Harvard University Press

Zemans, Frances Kahn

Diamant, Neil, (2000) Revolutionizing the Family: Politics, Love, and Divorce in

(1983) "Legal Mobilization: The Neglected Role of the

Law in the Political System." American Political Science Review 77

Urban and Rural China, 1949-68, Berkeley: University of California Press

Upham, Frank K, (1987) Law and Social Change in Postwar Japan, Cambridge

Ewick Patricia and Susan S Si Ibey (1998), The Common Place of Law: Stories

M A Harvard University Press

from Every day Life, Chicago and London: Chicago University Press

Ferree, Myra Marx and Carol Mueller

fn•C>rol?J ~'11'1!Fl1l ffil{t'X:il:tit;i!j.J *'i{l\:kHE~ (1995) l$1ii5-VV>J :,,:.,-;y.::;ryb. f;i:tt*J ~3'! lll!i!l!'±i' (1991) rfrttti"U c 'federal intervention dynamic empirically established by McAdam (1983) was not an inevitable sequence, and that the sequence could have been broken with appropriate tactical choices by the white leadership. Thus the paper has three purposes: (1) to introduce protest and control tactics even more explicitly into social movement theory by indicating the importance of studying the tactical choices available to movement opponents; (2) to refine our understanding of the dynamics of civil rights protest by showing that Southern elites could by the proper choice of tactics avoid the white violence that was an important stimulus for federal intervention;• and (3) to contribute to the RM-PP debate outlined above by suggesting that civil rights forces did not have the power to win major successes by themselves, or to compel federal intervention, when confronted by intransigent white resistance relying on the legal process. By examining situations in which black protest was met by legal control instead of the white violence that so often occurred, this study constitutes a deviant-case analysis. As Kendall and Wolf (1955) and Horst (1955) point out, deviant-case analysis allows the researcher to demonstrate the relevance and consequences of factors that had not been con4 White violence did not always lead to federal intervention, as shown by the lack of federal response to extensive white violence in cities such as McComb, Mississippi (Carson, 1981), and St. Augustine, Florida (Goodwyn, 1965). An analysis of the conditions under which white violence did lead to federal intervention is important for an understanding of the civil rights movement, though it is not the· purpose of this paper. It is generally true, however, as McAdam (1983) has empirically demonstrated, that federal intervention was a response to white violence, which in turn was a consequence of black protest.

Law and Social Movements 554

sidered previously. Horst (1955: 173) argues that the case study method may be "particularly useful" in the analysis of deviant cases. The attempt here is to show how Jaw could be used to prevent the creation of a situation in which extreme white violence emerged, and to show how the consequences of different tactical choices are worked out within conflict situations. Several cases in which the conditions were such that white violence was quite possible were selected for analysis, in order to show how different elite decisions led to very different consequences for the emergence of white violence, and, as a result, for the prospects of federal intervention. The protest campaigns examined here took place in Montgomery, Alabama, 1955-56; Albany, Georgia, 1961-63; Danville, Virginia, 1963; Birmingham, Alabama, 1963; and Selma, Alabama, 1965. Two models of white response to civil rights protest can be distinguished in these cities. The first, used in Montgomery, Albany, and Danville, involved the frequent use of arrest, prosecution, and other forms of legal harassment to suppress dissent. 5 Although the use of legal procedure instead of other, more brutal means of social control theoretically gave civil rights groups various procedural guarantees under the law, in Albany and Danville its use eventually proved overwhelming, while the Montgomery campaign would have failed had not the U.S. Supreme Court handed down a favorable ruling at the last moment. Moreover, the legitimacy conferred by the legal setting used in each city helped minimize the criticism that would have arisen had other, extralegal methods of control been employed (compare Balbus, 1973). 6 The second model, characterizing Birmingham and Selma, is distinguished from the first by the use of police and civilian violence which While white violence did occur in Montgomery (Brooks, 1974), the primary effort of white officials to control the movement was "legalistic" in nature. 6 In looking at the effective white resistance to school desegregation in the 1950s, Killian (1968:70) similarly notes the tendency of legalistic means of control to keep criticism to a minimum: 5

It is ironic that the white South was extremely

successful in minimizing the impact of the desegregation decisions of the federal courts without arousing the indignation of the rest of the nation. As much as the White Citizens Councils and the Ku Klux Klan are invoked as symbols of the southern resistance, they and their extralegal tactics did not make this possible. Far more effective were the legal strategems, evasions, and delays that led Negroes to realize that although they had won a new statement of principle they had not won the power to cause this principle to be implemented.

AMERICAN SOCIOLOGICAL REVIEW undermined attempts by officials to use legal means to control dissent. Publicized across the nation, such violence negated the legitimacy surrounding the official use of legal procedure and helped pressure the federal government into taking action. Without white violence, moreover, the legal control of black protest in Birmingham and Selma might very well have defeated the civil rights forces. 7 LEGAL PROBLEMS OF CIVIL RIGHTS PROTESTERS: AN OVERVIEW Before proceeding to the analysis, it will be helpful to discuss briefly the various legal difficulties confronting civil rights groups in the South (a more detailed treatment is available in Barkan, 1980a, 1980b). For the Southern civil rights movement the legal system proved a mixed blessing. At the federal level, the Supreme Court, the Fifth Circuit Court of Appeals, and a few District Judges rendered many decisions favorable to the movement's aims. At the state and local levels, however, the Jaw served as an effective instrument of social control. "Legal repression" (Balbus, 1973) is not too strong a term to use here, for many Southern communities experienced "a wholesale perversion of justice, from bottom to top, from police force to [state] supreme court" (Lewis et al., 1966:289). The legal difficulties facing the movement were in many ways similar to those confronting other movements. In the South these problems were especially severe because of the particular historical and social context in which the civil rights effort found itself. The entire legal machinery of the South became a tool for social control of civil rights protest. For example. 7 As Gamson (1980: 1043) notes. "There is no more ticklish issue in studying social protest than deciding what constitutes success.'' Elsewhere he (1975:28-29, 1980:1045-50) and Jenkins (1981) discuss the many conceptual issues that arise in defining success. In this paper a local protest effort is defined as successful if it achieved most or all of the immedia1e goals of desegregation and the like that were sought by the protesters themselves. If it was essential for the larger movement's success that it have at least some local successes, then it is proper, and important, to study the factors affecting local successes In determining the degree of success, I follow Gamson (1975:29) in taking "the group's own perspective and aspirations as the starting points" and in drawing on the perceptions of the group itself (and of its allies in the larger movement), its antagonists. and the view of historians and contemporary observers. Admittedly, this definition and analysis of success leave aside several conceptual questions, e.g., the achievement of goals that are "empty of real meaning" (Gamson, 1975:28).



Law and Social Movements THE SOUTHERN CIVIL RIGHTS MOVEMENT soon after lunch-counter sit-ins started sweeping the South in February 1960, several state legislatures passed new laws designed for application to the special characteristics of sitins. State and federal judges in the South also aided the social control effort when they granted injunctions that limited or banned civil rights activity (Bell, 1973). Criminal courts also presented the movement with serious obstacles. The fate of civil rights activists was no different from that of Southern blacks caught in "conventional" criminal proceedings (Myrdal, 1944; Sitton, 1962; Galphin, 1963), but the civil rights movement and the passions it aroused intensified the difficulties encountered by activists and their attorneys (see Barkan, 1980a, 1980b). Most judges, prosecutors, and jurors were hostile to civil rights goals, making it almost impossible for civil rights defendants to win acquittals. The movement also suffered from a lack of defense attorneys, as most Southern attorneys were not willing to defend civil rights activists. Those that did represent such clients faced threats of contempt and disbarment in court, and possibilities of physical attack, loss of business, and social ostracism outside of court. The two other branches of the criminal justice system, the police and the prisons, also posed serious difficulties for the movement: arrest was a daily threat, and the Southern jail an ugly institution. Southern police made arrests in virtually any kind of sit-in, march, or demonstration, and also arrested known activists in the absence of actual protest activity. Most of these arrests were for actions that would have been legal outside the South. Southern jails also sapped the strength of the movement. Jailhouse living conditions were substandard for civil rights and conventional inmates alike, and prison guards and white inmates were especially hostile to civil rights defendants. Thus the rigor of Southern jails prevented the consistent use of the "jail, no bail" tactic advocated by CORE and SNCC members (Meier and Rudwick, 1973), forcing local and national movement groups to spend large sums of money on bail bonds before trial, appeal bonds after conviction, fines, and costs of legal defense. All these problems were exacerbated by the nature of civil rights protest in many cities. The protests were not discontinuous, but rather parts of ongoing campaigns intended to dramatize civil rights goals, to achieve Northern support. and to force concessions from local officials by causing economic and social disruption. They would last days, weeks, or months at a time, lead to intimidating arrests of many dozens or hundreds of activists within a


relatively short period, and, because of the mass nature of the arrests, prove financially and legally burdensome. These burdens helped defeat civil rights forces in Albany and Danville, and might very well have frustrated protest efforts in Birmingham and Selma had not law enforcement officials overreacted, prompting federal intervention. Legal harassment would also have defeated the Montgomery campaign, had the U.S. Supreme Court not intervened at a critical moment. THE PROTEST CAMPAIGNS Montgomery, 1955-1956 The celebrated Montgomery bus boycott that propelled Martin Luther King, Jr., into national prominence has been recounted often, but the part played by law and the criminal justice system remains less understood. The boycott began, of course, with the December 1955 arrest of Rosa Parks for violating a segregation ordinance by refusing to move to the back of a city bus (Parks, 1977). Her arrest galvanized Montgomery's black community. Black leaders in the city had been waiting for an arrest ofa "respectable" person to help start a bus boycott and decided that this would be the one. Two negotiating sessions later in December between black and white leaders led nowhere. In January 1956, the mayor announced what he called a "get tough" policy. Two days later Martin Luther King was arrested for driving five miles an hour faster than the speed limit. At the end of January, police began ticketing and arresting the drivers of vehicles that were part of the car pool that enabled the bus boycotters to get to work. These arrests tied up the funds of the Montgomery movement (Martin, 1977). People waiting for rides had to stand away from bus stops, so that drivers could not be arrested for operating illegal taxi services. Many blacks waiting for rides were threatened with arrest for vagrancy or hitchhiking. The police tactics made many blacks afraid to continue driving for the car pool, forcing several boycotters to walk (Lewis, 1970). As a result, the bus boycott almost ended three months after it began. The legal effort of the city escalated on February 21, when a county grand jury charged some 100 boycott leaders, including almost all of Montgomery's black ministers, with violating a 1921 state law that made it a misdemeanor to interfere with lawful business (the law had been enacted to impede unionization in Birmingham [Raines, 1977)). The arrests of the boycott leaders, however, unified the black community instead of intimidating it. By March, white merchants had lost more than $1

Law and Social Movements 556


million in sales because blacks were not riding albeit one difficult to achieve. Their main tactic was the boycott, and not marches and demonthe buses to their stores. Finally, in November 1956, city officials strations, thereby reducing the possibility of asked a state court to enjoin the Montgomery arrest inherent in these more active forms of Improvement Association, the group sponsor- protest. Movement groups in other cities had ing the boycott, from operating an illegal tran- wider goals; of necessity they initiated sit system-the car pool. The city's request for marches, rallies, and the like, at the same time an injunction "noticeably diluted the ardor of subjecting themselves to greater possibilities of the black community" (Lewis, 1970:79). Had legal harassment and control. 9 The Albany the injunction been granted, the movement campaign illustrates the dilemma they faced. would have suffered a serious, perhaps fatal blow. As King and other boycott leaders Albany, 1961-1963 waited in court November 13 for the judge's decision on the injunction, they feared the In Albany, Georgia, one of the first concerted worst (Miller, 1968). But word came that the efforts in the South to desegregate bus and U.S. Supreme Court had affirmed a lower train terminals, lunch counters and restaucourt's decision that the bus segregation stat- rants, and other public facilities and accommoutes in Montgomery were unconstitutional; the dations began in November of 1961 and lasted original suit had been filed nine months earlier through the summer of 1963. In this period, by Montgomery blacks. The Supreme Court's more than 1,000 people were arrested during ruling not only desegregated Montgomery sit-ins, marches, and rallies. Despite the mass buses, it also saved the boycott effort. As one protest and arrests, little desegregation ocblack resident said upon hearing of the Court's curred, as civil rights forces encountered an decision, "Praise the Lord. God has spoken intransigent local government willing to use a from Washington, D.C." (in Lomax, 1962:94). legal system that provided an effective means The Montgomery movement, it is true, was of control. Partly because of the involvement able to capitalize on the arrests of Parks and of Martin Luther King and his Southern ChrisKing and the later ones of the boycott leaders. tian Leadership Conference (SCLC), national Despite the arrests and police harassment of attention was focused on the city during much car-pool drivers and riders, the boycott lasted a of this period, and the failure of civil rights year and proved costly to white merchants. groups to desegregate Albany was thus emphaNevertheless, the arrests and other police tac- sized as a telling blow for the movement. It still tics seriously weakened the boycott effort, and remains an important example of the use of the the injunction might have destroyed it had not entire legal system of a city to thwart civil the Supreme Court handed down a favorable rights goals. ruling. 8 As the Albany and Danville campaigns The city's most effective legal tactic inwill make clear, perhaps the mistake of volved a policy of continuous arrests by local Montgomery officials lay in not arresting more police. Albany's police chief, Laurie Pritchett, often, for while early arrests and prosecutions was cited and, in many places, praised for his may galvanize a social movement, continued method of dealing with. civil rights demonarrests and trials may frustrate spirits and pose strators. His police force arrested protesters in increasing legal and financial burdens. The almost every demonstration, and, most improtest tactic chosen by the Montgomery portant, did so without violence: in the months movement made it difficult for the city to arrest before the Albany protests, the city police had more often. In seeking only to desegregate the been·trained to make arrests without violence buses, Montgomery blacks had a limited goal, and had seen films of demonstrations in other areas. Pritchett's tactics burdened the local movement with huge legal costs and other dif8 This is a point that McAdam (1983) misses when he attributes the success of the Montgomery boycott ficulties and effectively depicted a police force to the fact that Montgomery blacks were able to deal that quickly, efficiently, and impartially dealt a severe financial blow to the bus lines they boycotted. While I do not wish to minimize the impact of the boycott, my analysis suggests that it would have failed had it not been for the Supreme Court. McAdam (1983) notes the use of a similar pattern of legal harassment by Tallahassee officials in response to the 1956 bus boycott in that city. I take no issue with his (1983:741) observation that other cities desegregated their bus lines in the wake of Montgomery and Tallahassee, though I would argue that they could have defeated the boycotts through legal intimidation.

9 This point illustrates McAdam's (1982:264) observation that the choice of protest tactics greatly influences the form of control adopted by officials. The more "passive" form of protest used in Montgomery made it less likely that officials would, or could, resort to violence. Although "active" forms of protest like marches and demonstrations may increase the chances of official violence, as in Birmingham and Selma, they do not guarantee it. as Albany and Danville will illustrate.



Law and Social Movements THE SOUTHERN CIVIL RIGHTS MOVEMENT with protesters breaking the law, especially in contrast with the beatings of "Freedom Riders" the previous spring in several Southern cities. As a result, U.S. Attorney General Robert Kennedy sent Pritchett a telegram congratulating him for the peaceful arrests (Raines, 1977). Reflecting the praise of Pritchett, an Atlanta newspaper reported that he was '·widely known-not only in the South, but throughout the world-as a stalwart exponent of the nonviolent method of quelling integrationist uprisings" (McLendon, 1963:14). The Albany Movement, a coalition of SNCC, the NAACP, and local black ministers, was formed November 17, 1961. Five days later, five local college students sat down in the Trailways bus terminal and were arrested. Arrests again occurred December 10th, when black and white SNCC members rode a train from Atlanta to Albany. After they entered the white waiting room of the train terminal, Pritchett ordered them to leave. As they were entering cars to depart, they were arrested for obstructing traffic, disorderly conduct, and failure to obey an officer (Zinn, 1962). During the next week, the Albany Movement held large meetings in black churches and sponsored several downtown marches that ended in many arrests. One of the demonstrators said later, "I didn't expect to go to jail for kneeling and praying at city hall" (in Zinn, 1962 :4 ). On the day of the city court trial of the December I0th train riders, 400 students were arrested as they marched downtown to demonstrate against the trial. On December 16, Martin Luther King and Ralph Abernathy spoke at a black church and led another march downtown, with 200 more arrested, including King. By now 737 had been taken to jail. Negotiations began between city officials and Movement leaders. The latter agreed to call off the demonstrations in return for desegregation of the terminals, release of those still in jail on property bonds, except for the December 10th protesters, and the agreement of the city commission to discuss Movement demands in January. The city commission refused, however, to take any action after meeting with Movement leaders on January 23. A month later city officials began trying the 737 protesters arrested in the December marches. In March the county court appeal trial of those arrested December 10th in the train terminal began. In April four Movement leaders were convicted of disorderly conduct for picketing a downtown store that refused to hire black workers. Thirty people were arrested in lunch-counter sit-ins. In June. nine more were arrested for picketing downtown stores (see Zinn, 1962; Watters, 1971 ).


The Albany Movement then scheduled a large prayer vigil for July 21, but the city obtained a temporary injunction at midnight on the 20th from Federal District Judge J. Robert Elliott, prohibiting all marching, picketing, and congregating. As a result, the planned vigil did not take place, as King, the featured speaker, refused to violate the order of a federal judge (Lewis, 1970). That night, however, 160 blacks were arrested in a protest march for defying the injunction. Two days later 47 more were arrested for marching. On July 24 a federal Fifth Circuit judge set aside the temporary injunction. A few days later, King and Abernathy were again arrested when they and a few Albany Movement leaders went to city hall to ask to talk with the city commissioners. By August more than 1,200 had been arrested since the previous November. In the early part of the month, federal Judge Elliott heard arguments by the city for a permanent injunction on demonstrations. On August 10, King, Abernathy, and the other defendants from the recent city hall arrests were convicted. A Northern minister who attended the brief trial said, "The trial was a farce. The judge had his opinion andjudgement written out when he came into the court" (in Miller, 1968:133). The mass protests and arrests of these ten months of the Albany Movement did not desegregate public facilities and accommodations. This was not to occur until after the Congress passed the 1964 Civil Rights Act (Bleiweiss, 1969). An NAACP official put it well: "Albany was successful only if the goal was to go to jail" (in Miller, 1968: 139), an assessment shared by much of the press and many civil rights activists (Gleghorn, 1963; Southern Patriot, 1963). Others have taken a more positive view, asserting that, at the very least, the Albany campaign focused attention on Southern racism (Walker, 1963) and showed that an entire black community could be mobilized to attack segregation (Miller, 1968; Piven and Cloward, 1979). 10 In the years since the Albany Movement, at least two explanations of its failure to desegregate have been advanced (Piven and Cloward, 1979). One argues that leaders of the Movement should have concentrated on one or two examples of racial discrimination in the city instead of launching a general attack, which spread the Movement too thinly (Lewis, 1970; Zinn, 1962). The second attributes the Movement's failure to factionalism among its various member groups. The two explanations are not 1° Carson (1981 :65) shares both views on the Albany outcome.


558 mutually exclusive, and some observers agree with both. If the organizational problems of the Albany Movement proved fatal, however, the intransigence of city officials provided a decisive blow. And here the criminal justice system of Albany played a crucial role, a point overlooked by Piven and Cloward (1979). Most of the more than 1,200 arrests that took place through the summer of 1962 were without legal merit. As Zinn (1962:21) points out, "There was no consideration of imminent disturbance, or impending violence, no concern with what is the prevailing judicial rule for the limits of free speech-the existence of a 'clear and present danger.' " Similarly, the head of the Southern Regional Council asserted, "There are legitimate grounds for saying that in Albany sophisticated police work has done the traditionalalmost legendary-job of the mob, i.e., the suppression of Negro dissent" (in Zinn, 1962:vi). The many arrests presented the Albany Movement with serious legal problems. With cash bonds of $200 required for most of those arrested, the Movement had to obtain some $200,000 in bail money. Although in many communities property bonds are allowed as collateral, Pritchett purposely refused them in order to create financial problems for the Movement (Pritchett, 1977). The Movement was also never able to overflow the local jails and force the city to spend large sums on incarceration. Long before King and the SCLC had come to Albany, Pritchett had read of King's admiration of Gandhi's method of filling the jails, and determined that this would not happen in Albany. Arrangements were made to send anyone arrested to jails up to one hundred miles from the city. Protesters were booked, fingerprinted, photographed and taken immediately on buses to these jails, where several were beaten. Pritchett (1977:399) said later of his tactics, "I think this is one thing that Dr. King was surpised at. This did away with his method of overextending the facilities." As Cleghorn '(1963:16) notes, the Albany cityjail "proved a bottomless pit." The arrests also overwhelmed C. B. King, the only lawyer in the area willing to represent the more than 1,200 civil rights defendants, as the demands on his time hampered effective legal representation. Guilty verdicts were a foregone conclusion, and his normal practice suffered because of the time required by his civil rights clients. Just as important, arrests and prosecutions in the long run proved intimidating. In the late spring and summer of 1963, the Albany Movement showed signs of rebirth, but it never achieved the number of participants of the previous year (Sitton, 1963). By that time the

prospect of arrest for any protest action aimed at the elusive goal of desegregation was uninviting. As a northern law student working for C. B. King that summer observed, "The young people are not interested in peaceful demonstrations in the street. That only means arrest with no bail money. The people here have been going to jail for over two years now. They are tired of going to jail" (Roberts, 1965 :n. p. ). For those still willing to protest, jail was a certain fate. In June 1963, for example, about 100 people picketing and leafletting white businesses in support of a boycott were arrested for disturbing the peace, effectively "crippling the Negroes' efforts to boycott department stores" (Cleghorn, 1963: 16). In late June, 20 out of 26 SNCC workers in Albany were an;ested, usually for vagrancy. Thus by the middle of the summer a certain amount of despair had settled over Albany's black community. C. B. King remained busy. As his law student said, There is no way to explain how overworked we are, how impossibly far behind, how many things have to be skipped, how much "private" practice is lost. Because we just don't have the time. We don't practice law here; we run around complying with all the irrelevancies. (Roberts, 1965:n.p.) 1

Noting the low attendance at protest meetings, he also commented, "People are just physically exhausted and feel forgotten and hopeless" (Roberts, 1965:n.p.). The final legal blow to the Albany Movement came in August 1963, and, ironically, derived from a federal prosecution of Movement activists which SNCC workers charged was designed to appease Southern communities (Carson, 1981). Nine members of the Movement and of SNCC were indicted by a federal grand jury for perjury and obstructing justice. The defendants had been involved in the June picketing and leafletting of white-owned businesses. One of the store owners had been a juror in a federal suit filed by a black resident against a local sheriff for alleged brutality; an all-white jury ruled against the resident. On August 9 the grand jury indicted three of the nine activists for interfering with a federal juror by boycotting the juror's store, and the rest for perjury in their testimony before the grand jury (Bay Area Friends of SNCC, 1963; Zinn, 1965). All nine were later convicted. Having regarded the federal government as an ally, Albany blacks were "stunned" and demoralized by the indictments (Southern Patriot, 1963:1). As one resident said, "Even the federal government's a white man" (in Roberts, 1965:n.p.). The indictments also led to other problems. Some Albany blacks were now afraid to associate with members of the



Law and Social Movements THE SOUTHERN CIVIL RIGHTS MOVEMENT Movement; one black businessman refused to allow activists to enter his restaurant, pool hall, or liquor store, and several other blackowned restaurants followed suit (Forman, 1973). Moreover, police harassment of SNCC workers in Albany increased after the indictments. On August 16 one SNCC member who was taken from a porch to the police station for questioning was told by an officer, "Now that the federal government is going to put the Movement's ass in jail, we will put your ass in, too, if you don't stay off the street" (in Roberts, 1965:n.p.). Thus we see how legal procedure affected the Albany Movement at every turn. Indeed, it is impossible to understand the Movement's development and demise without considering the part played by the police, courts, and prisons. Pritchett' s "nonviolent method" of arrests masked the fact that they were without legal merit and limited criticism of the police response. The city's request for injunctions was another nonviolent, legal method of control that proved effective without arousing national outrage. Birmingham, 1963

From his defeat in Albany, Martin Luther King went on to victory in Birmingham, thanks in large part to the violence of the white response. After the Albany failure, King debated whether even to continue with his civil rights efforts (Young, 1977), but finally decided to stay in the movement. Thus when Birmingham civil rights leader Fred Shuttlesworth asked King and SCLC for help in May 1962, King quickly accepted. A boycott of downtown white merchants had already weakened the white position, increasing the chances of success if additional pressure were applied. The city's Police Commissioner, Bull Connor, was known for his hostility to civil rights efforts (Hubbard, 1968; Watters, 1971). The stage was thus set for a dramatic confrontation, as SCLC realized and even hoped that demonstrations would prompt police violence (Cleghorn, 1970; Garrow, 1978). Shuttlesworth (1977:168) said many years later, "I think the idea of facing 'Bull' Connor was the thing .... We knew that we would have at least the spotlight." 11 11 In discussing how the personalities and desires of law enforcement officials like Pritchett (in Albany), Connor (in Birmingham), and, later, Clark (in Selma) influenced outcomes, the analysis emphasizes personalities rather than structural forces. Characteristic of other works as well (e.g., Garrow, 1978; McAdam, 1982, 1983; Piven and Cloward, 1979), this view is unavoidable, precisely because the personalities and attitudes of each law enforce-


The Birmingham campaign has been recounted elsewhere (Garrow, 1978; Lewis, 1970; Miller, 1968), and space considerations allow only a brief summary here. In the middle of January 1963 King began a speaking tour in which he announced the planned Birmingham campaign and obtained pledges of bail money for arrests in the city. Sit-ins finally began April 3, 1963, with twenty arrested at a local department store. Three days later a protest march led by Shuttlesworth ended in 42 arrests, and by the end of the first week more than 150 had been arrested. Of these, 24 had already been convicted of various offenses, fined $100 each, and sentenced to six months in jail. The city also obtained a local court injunction prohibiting demonstrations. On Good Friday, April 12, King, Abernathy, and Shuttlesworth led some 50 marchers to city hall, thus defying the injunction. All were arrested. On Easter Sunday, about 2000 blacks gathered at the city jail to protest the arrests, and some people in the crowd threw rocks at the police. In return the police swung clubs and used police dogs. The use of the clubs and dogs marked a significant departure from the nonviolent tactics of the Albany police. While the latter had trained for mass arrests, Birmingham's had not. One of Birmingham's police captains later revealed that the city's police were "quite taken by surprise that this thing would happen, and they were not-well, they were not really prepared fully from a tactical point of view" (Evans, 1977:189). ln early May the local movement group, the Alabama Christian Movement for Human Rights (ACMHR), decided to use school children in protest marches. In the previous week, demonstrations had "reached rock bottom" (Kunstler, 1966:189). On Thursday, May 2, the police arrested 959 children and 9 adults during several marches; more arrests would have taken place if the police had not run out of wagons. Five hundred more marched the next day, but were repelled by police using fire hoses and dogs. News photographs of the hoses and dogs "shocked the world" (Lewis et ment official did play such a large role, as SCLC officials realized at the time and as later accounts have confirmed. Although sociology has, at least since the time of Durkheim, emphasized the influence of structural forces over that of individual personalities, we cannot escape the fact that in the protest campaigns described here the identity and attitudes of the primary law enforcement officials involved played a key, and even crucial, role. Just as sociology should avoid an "over-socialized" view of the individual (Wrong, 1961 ), so should the discipline avoid an "over-structuralized" view when studying social movements.

Law and Social Movements 560 al., 1966:220). On Monday, May 6, about 1000 more children· were arrested for marching to city hall. The number of arrests now exceeded 2000. With no room left in the local jails, 500 children who marched May 7 were not arrested, prompting SCLC leaders to send 3000 more children downtown the same day. Police used fire hoses, and members of the crowd threw rocks in return; about 50 were arrested. That night, 575 state troopers came to Birmingham at the request of Bull Connor. National attention had now centered on the city. Serious negotiations had begun between civil rights leaders, black and white clergy, and white merchants, and a three-day halt in the demonstrations began May 7. By this time the local movement had run up about $257 ,000 in bail costs, which were paid by Northern contributors, the bulk coming from the United Auto Workers and the National Maritime Union. Fearing further violence, the federal government had threatened to send in troops if a compromise were not reached. On Friday, May I 0, the 790 protesters still in jail were released on bail, and that afternoon an agreement between the city and civil rights forces was announced. The agreement called for the desegregation of lunch counters, rest-rooms, and the like in all downtown stores, the hiring of blacks in various jobs in the stores, and release of those already convicted. In the next few weeks, white businessmen voted to support the settlement, while on May 20 the U.S. Supreme Court ruled that Birmingham's segregation ordinances were unconstitutional and overturned the convictions ofall those arrested under the laws. The events in Birmingham "changed the thinking" of the Kennedy Administration, which had previously opposed new federal civil rights legislation (Lewis et al., 1966: 121), and on June 19 Kennedy introduced in Congress the legislation that was to become the 1964 Civil Rights Act. The protest campaign in Birmingham was generally similar to that in Albany. Protest strategy in each city involved the use of sit-ins and especially mass marches. In each city large numbers of arrests occurred as a result, although Birmingham had twice the number of Albany. Yet the campaign in Birmingham succeeded where, in many ways, it had failed in Albany. In addition to the better organization of the Birmingham effort, several factors seem to account for these different outcomes. First, in Albany the police sent demonstrators to jails outside the city, thus preventing the jails from overflowing, while in Birmingham, a much larger city, the jails did become full. Second, in Albany the Movement had trouble raising bail money, while in Birmingham it was provided

AMERICAN SOCIOLOGICAL REVIEW by external supporters such as labor unions and Northern liberals. Third, and perhaps most important, the police in Albany arrested without violence, while those in Birmingham were violent. Fourth, in Albany the business community refused to negotiate a compromise, while in Birmingham it agreed to a settlement, partly because of the boycott in downtown stores, partly at the urging of the Justice Department, and partly because of the police violence. The violence of black protesters may also have raised fears of an even greater conflagration. For all these reasons, the Birmingham campaign achieved its goals in only six weeks, while Albany's encompassed some eighteen months with little success, allowing time for frustration to set in and spirits to lag. As a model of official control of civil rights dissent, then, Birmingham is distinguished from Albany and Montgomery by the violence of its police response. To succeed, Birmingham's campaign had to succeed quickly, lest" it encounter the legal and financial problems that beset the Albany Movement. But this probably would not have been possible without the response of the Birmingham police, whose violence was exactly what SCLC and ACMHR had desired, and who had made no plans to send arrested demonstrators out of the city. Ironically, a Birmingham police official had consulted with Laurie Pritchett before the demonstrations, but the former's pleas for a nonviolent police response were vetoed by Bull Connor (Evans, 1977; Pritchett, 1977). Thus the Birmingham campaign might very well have failed if the city had followed the Albany and Montgomery pattern of legalistic control. The contrast between the two models is made clear once more in the Danville and Selma campaigns. Danville, 1963

The success at Birmingham inspired demonstrations in many other areas (Franklin, 1969). One of the most prolonged protest efforts occurred in Danville, Virginia. There the local civil rights movement followed the Birmingham strategy. The city, however, patterned its strategy on that used in Albany, and the Danville protests largely failed to achieve their goals. The Danville Christian Progressive Association (DCPA) began marches May 31, 1963. A few days later, negotiations began between black and white leaders. On June 5, however, two DCPA leaders were arrested for inciting to riot when they refused to leave city hall, where they had gone to try to talk to the mayor; their bail was set at $5000 each. The arrests ended the biracial negotiations. The DCPA then



Law and Social Movements THE SOUTHERN CIVIL RIGHTS MOVEMENT asked SNCC, SCLC, and CORE for help, and SNCC soon sent 18 field secretaries. On June 6, city Judge Thomas Aiken issued a temporary injunction forbidding further civil rights demonstrations, but in the next few days 105 were arrested for violating the injunction (Belfrage, 1963; Holt, 1965). Trials of the 105 began June 17. When the handful of civil rights attorneys walked into court, police took their pictures and searched the black attorneys in the group. Judge Aiken initially refused to tell the attorneys which defendant would be tried first. When he then told attorney Len Holt that the first defendant would be one of his clients, Holt asked for a continuance so that he would have time to prepare the case. Aiken denied the request and then refused Holt's client a jury trial. When Holt challenged the segregated seating in the courtroom, Aiken banned all spectators from the room, saying, "Sure, my courtroom is segregated, but not today, because nobody's allowed in·· (in Belfrage, 1963:11). Aiken then refused to tell Holt which section of the injunction his client had allegedly violated. Holt said he couldn't proceed with the case. The judge replied, "That's your problem," and sentenced the defendant to 90 days in jail and a $25 fine, reading an opinion on the defendant's guilt that had been written before the trial began. He then refused to allow the defendant to stay out of jail while his conviction was being appealed, meaning that the defendant would have served his jail term long before his appeal had been decided. The next day Aiken sentenced a second defendant to 60 days in jail, and later ordered the remaining defendants to be in court every day until all the individual trials had been completed (Belfrage, 1963; Holt, 1965). On June 22, a local grand jury indicted 14 Danville civil rights leaders for inciting blacks to riot. Thirteen of the 14 were arrested and released on $5000 bail each, which was raised by local blacks who pledged their homes as security, while the fourteenth, SNCC leader James Forman, left the city in secret. The remaining 13 were forced by the indictments to restrict their civil rights activities (Holt, 1965). In July, the Danville police chief, wishing to avoid the error of Bull Connor, asked Laurie Pritchett for advice in dealing with mass protests (Holt. 1965). Martin Luther King arrived July 11, and 60 blacks who marched to city hall to mark his 8rrival were arrested. The next day, however. King flew to New York to help plan the March on Washington scheduled for August. About the same time, Chief Judge Simon Sobeloff of the federal Fourth Circuit Court heard the Danville movement"s request to dissolve city Judge Aiken's temporary in-


junction. A week later Sobeloff said the full Circuit Court would hear the matter in late September, but that in the meantime the injunction would stay in effect (Holt, 1965). His decision to delay a ruling dismayed Danville activists: "To say that we were profoundly distressed by the court" s action would be the understatement of the summer"' (Kunstler, 1966:228). City officials, on the other hand, greeted the news happily, one of them saying, "I couldn't believe the good news at first"· (in Kunstler, 1966:229). The Danville police chief announced that anyone violating Aiken's injunction would be arrested, and that black tobacco workers who took part in demonstrations would not be able to find work later. During the next two weeks the Danville movement was quiet, thanks to the injunction. Then, on July 28, 80 people were arrested for marching to city hall. The next day, Aiken made his injunction permanent, which "completely paralyzed the protest movement" in Danville (Kunstler, 1966:230). In yet another legal strategem, Aiken transferred 41 of the injunction contempt cases from Danville to counties 80 to 250 miles away. His action intensified the legal intimidation of the city: "The prospect of having to travel hundreds of miles to be tried would keep most of Danville's Negro citizens from daring to violate the injunction" (Kunstler, 1966:321 ). However, a three-judge panel of the federal Fourth Circuit Court stopped all the cases until its late September hearing. Sobeloff also suggested that the opposing parties in Danville try to reach a compromise. But on the day after this suggestion, six of the nine members of Danville's city council said they would not take part in the negotiations requested by three black clergy. The Danville movement had hoped and expected that King and the SCLC would return to the city, but obligations elsewhere prevented them from returning (Lewis, 1970). Despite the roughly two months of protest, "no dramatic gains resulted from Danville's hectic activities" (Miller, 1968: 185). The Danville movement's failure to desegregate can be traced to several factors. In contrast to Birmingham, King and the SCLC came to the city for only a few days. Danville activists were never able to mobilize the numbers that had marched and been arrested in Birmingham, or even in Albany. However, as in Albany, perhaps the primary reason for the movement's defeat was the use of legal means by Danville officials. Thus in August 1963 a Nrn· Yod Times reporter wrote that the "Danville method," one that followed the legalistic model of Albany and Montgomery, was being studied by other communities: "Officials of

Law and Social Movements 562 other Virginia cities have traveled here to observe and learn in an unspoken compliment to a ... strategy that is the most unyielding, ingenious, and effective of any city in the South" (Franklin, 1963:71). Selma, 1965

Garrow (1978) has discussed the Selma campaign in great detail, and thus only a brief summary is needed here. Before 1965, arrests by Selma police and state court injunctions had "greatly hindered" (Miller, 1968:216) organizing efforts by SNCC in the city. On July 6, 1964, for example, 50 blacks attempting to register to vote were arrested. Three days later, a local judge issued an injunction prohibiting public gatherings of more than three people; the injunction "halted" (Garrow·, 1978:34) weekly mass meetings that had been taking place. Hoping for a violent white response, SCLC decided to focus on Selma to dramatize the call for Congressional passage of voting rights legislation, and it soon became clear the Selma law enforcement personnel had not learned the lessons of earlier protest campaigns (Garrow, 1978). As Laurie Pritchett (1977:404) later observed, "The people that were most responsible" for civil rights successes were Bull Connor and Jim Clark, sheriffof Selma. "Dr. King, when he left Albany, ... was a defeated man. In my opinion, right or wrong, if Birmingham had reacted as Albany, Georgia did ... they'd never got to Selma." In late January 1965, the SCLC campaign began, and by February 5 some 3000 had been arrested in a series of marches. The climactic events of Selma began Sunday, March 7, when SCLC had scheduled a march from Selma to Montgomery. Governor George Wallace signed an order prohibiting the march, and announced that state troopers with tear gas would stop. the march if it took place. As 525 people marched across a bridge on the way to Montgomery, they were ordered to turn back by a state trooper official. When they did not retreat, troopers and Selma police used tear gas and beat the marchers with nightsticks as they tried to run away. Then Jim Clark ordered his police on horses to "get those niggers-and get those goddam white niggers" (in Miller, 1968:221); the horses plunged into the crowd. The press conveyed the police violence to the entire country, and several members of Congress came to Selma to investigate complaints of civil rights forces. As one SCLC member said, "Jim Clark is another Bull Connor. We should put them on the staff' (in Piven and Cloward, 1979:249). In response to a call by Martin Luther King for clergy and laity to

AMERICAN SOCIOLOGICAL REVIEW come to Selma, hundreds began to arrive in the city Monday, March 8. Two days later, four members of the Ku Klux Klan beat to death a white minister. The violence at Selma led to protests across the country that demanded federal intervention in Alabama and passage offederal voting rights legislation (Garrow, 1978). Then, on March 15, President Johnson announced that he would submit such legislation to Congress. A few days later, 380 persons, most of them white ministers, were arrested in Selma for picketing and praying in front of the mayor's house. Finally, on Sunday, March 21, more than 10,000 people marched from Selma to Montgomery. At the latter city they were joined by 25 ,000 others from many other states. In Selma we see the impact of the two methods of white control that have been identified. The legalistic method used in Montgomery, Albany, and Danville had worked for Selma officials before the SCLC began its campaign, when SNCC activists were in the city. Legal means were also used in the early phases of the SCLC campaign. Finally, however, control actions followed the Birmingham pattern of violence by law enforcement personnel, leading once more to federal intervention. If the Selma police and Alabama state troopers had followed the legalistic path, however, they might very well have defeated the SCLC's campaign. CONCLUSION This paper has identified two models of control of civil rights protest in the South. In the first, characterizing Montgomery, Albany, and Danville, the pattern of white resistance was "legalistic," eschewing violence in favor of frequent questionable arrests, high bail, court proceedings lacking due process, and injunctions without legal foundation. Because of the legal means that were used, this approach acquired a measure of legitimacy, when compared to earlier episodes of violence, and muted criticism. Thus mass protests in Albany and Danville were not enough and in the long run created legal problems that helped defeat civil rights forces. This method of legal control would also have succeeded in Montgomery had not the U.S. Supreme Court intervened at the eleventh hour. In the second model, characterizing Birmingham and Selma, police violence accompanied legalistic means of control and, because of the Northern sympathy and federal action that resulted, enabled civil rights forces to succeed in spite of the legal and financial problems inherent in mass protest. Killian (1968:32) observed some time ago



Law and Social Movements THE SOUTHERN CIVIL RIGHTS MOVEMENT that the slow pace of Southern school desegregation in the 1950s was "created primarily by legalists who did not crudely defy the law but cleverly used it to limit change to a minimum." This paper has argued that Southern whites could also have used legal tactics to thwart civil rights goals in the protest phase of the movement. Protest may be very effective at times, and it resulted in unprecedented, if often limited, gains in the South in many areas. But this paper has suggested that the major successes of the movement would not have been possible without inappropriate tactical choices by Southern officials. If this is true, then the movement's major successes derived not from its own ability to compel white violence and hence federal intervention by the use of mass protest, but from the crude and unlearned responses of certain Southern officials to such protest. Put more directly, movement groups were able to win major successes only when they were fortunate enough to find opponents who "could be counted on in stupidity and natural viciousness to play into their hands" (Watters, 1971:266). 12 In thus emphasizing the movement's weaknesses in the face of stubborn white resistance that resorted to legal repression, the paper provides support for the resource mobilization argument in the debate discussed earlier. More generally, this paper has presented a detailed analysis of the variety of legal tactics available to social movement opponents. Arrests, prosecutions, and injunctions have long been effective weapons in controlling dissent, and were used in earlier eras against antebellum abolitionists (Campbell, 1970), striking workers (Frankfurter and Greene, 1930), and critics of U. S. involvement in World War I 12 McAdam's (1983) analysis suggests the weaknesses of civil rights forces in the absence of white violence. First, he notes the effectiveness of decisions by law enforcement officials in Mississippi in 1961 to avoid the use of violence against Freedom Riders, neutralizing the "crisis atmosphere" that had occurred in earlier violent episodes. Second, in commenting on Albany he (1983:748-49) observes, "Failing to provoke the public violence necessary to prompt federal intervention, insurgents lacked sufficient leverage themselves to achieve anything more than an inconclusive stand-off with the local segregationist forces in Albany" (emphasis added), thus contradicting his earlier (1982:30) statement, quoted at the beginning of this paper, that "aggrieved groups possess the ability to exert significant leverage on their own behalf." Third, he (1983:750) notes that after Birmingham and Selma, whites finally learned to react moderately, "and in so doing short-circuit the more general protest dynamic under discussion here," as was the case in Baltimore (Von Eschen et al., 1969).


(Peterson and Fite, 1957). Such tactics helped destroy the Industrial Workers of the World early in this century (Chafee, 1941) and posed serious burdens for Communist Party leaders after World War II (Belknap, 1978). Despite this history of the legal control of dissent, however, sociologists have paid little attention to the impact of legal procedure on movement challenges. The study of "political justice" (Kirchheimer, 1961), then, is essential for a full understanding of the dynamics of protest and control in times of social movement unrest. Future research will contribute further to the debate addressed by this paper and increase our knowledge of the interplay between the legal process and social and political dissent. REFERENCES Balbus, Isaac 1973 The Dialectics of Legal Repression. New York: Sage. Barkan, Steven E. 1980a "Criminal courts and political protest: mobilization and control in the Southern civil rights and Vietnam antiwar movements." Unpublished Ph.D. dissertation, Department of Sociology, State University of New York at Stony Brook. 1980b "Criminal prosecutions in the Southern civil rights and Vietnam antiwar movements: repression and dissent in political trials." Pp. 279-99 in Steven Spitzer (ed.), Research in Law and Sociology, Volume 3. New York: JAI Press. Bay Area Friends of SNCC 1963 Leaflet. No specified date. In files of Meiklejohn Civil Liberties Institute, Berkeley, California. Belfrage, Sally 1963 "Danville on trial." The New Republic (November 2):11-12. Belknap, Michal 1978 Cold War Political Justice: The Smith Act, the CIA, and American Civil Liberties. New York: Greenwood Press. Bell, Derrick A., Jr. 1973 Race, Racism, and American Law. Boston: Little, Brown. Bleiweiss, Robert M. 1969 Marching to Freedom: The Life of Martin Luther King, Jr. New York: New American Library. Brooks, Thomas R. 1974 Walls Come Tumbling Down: A History of the Civil Rights Movement, 1940-1970. Englewood Cliffs, NJ: Prentice-Hall. Campbell, Stanley W. 1970 The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860. Chapel Hill: University of North Carolina Press. Carson, Clayborne 1981 In Struggle: SNCC and the Black Awakening of the 1960s. Cambridge: Harvard University Press.

Law and Social Movements 564 Chafee, Zechariah, Jr. 1941 Free Speech in the United States. Cambridge: Harvard University Press. Cleghorn, Reese 1963 "Epilogue in Albany: were the mass marches worthwhile?" The New Republic (July 20): 15-18. 1970 "Crowned with crises." Pp. 113-27 in C. Eric Lincoln (ed.), Martin Luther King, Jr.: A Profile. New York: Hill & Wang. Davies, James C. 1962 "Toward a theory of revolution." American Sociological Review 27:5-19. Durkheim, Emile [1895] The Rules of Sociological Method. Eighth 1966 edition. Translated by Sarah A. Solovay and John H. Mueller. New York: Free Press Evans, Glenn V. 1977 Interview with Glenn V. Evans. Pp. 187-96 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Forman, James 1973 The Making of Black Revolutionaries. New York: Macmillan. Frankfurter, Felix and Nathan Greene 1930 The Labor Injunction. New York: Macmillan. Franklin, Ben A. 1963 "Danville method studied in South." The New York Times (August 11):71. Franklin, John Hope 1969 From Slavery to Freedom: A History of Black Americans. Third edition. New York: Vintage. Friedman, Leon 1965 Southern Justice. New York: Pantheon. Galphin, Bruce 1963 "When a Negro is on trial in the South." The New York Times Magazine (December 15):17ff. Gamson, William A. 1975 The Strategy of Protest. Homewood, IL: Dorsey. 1980 "Understanding the careers of challenging groups: a commentary on Goldstone." American Journal of Sociology 85: 1043-60. ·Garrow, David J. 1978 Protest at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965. New Haven: Yale University Press. Goodwyn, Larry 1965 "Anarchy in St. Augustine." Harper's (January):78-8!. Gurr, Ted 1970 Why Men Rebel. Princeton: Princeton University Press. Holt, Len 1965 An Act of Conscience. Boston: Beacon. Horst, Paul 1955 "The prediction of personal adjustment and individual cases." Pp. 173-74 in Paul F. Lazarsfeld and Morris Rosenberg (eds.), The Language of Social Research. New York: Free Press. Hubbard, Howard 1968 "Five long hot summers and how they grew." Public Interest 12(Summer):3-24.

AMERICAN SOCIOLOGICAL REVIEW Jenkins, J. Craig 1981 "Sociopolitical movements." Pp. 81-153 in Samuel Long (ed.), Handbook of Political Behavior, Volume 4. New York: Plenum. Jenkins, J. Craig and Charles Perrow 1977 "Insurgency of the powerless: farm worker movements (1946-1972)." American Sociological Review 42:249-68. Kendall, Patricia L. and Katherine M. Wolf 1955 "The two purposes of deviant case analysis." Pp. 167-70 in Paul F. Lazarsfeld and Morris Rosenberg (eds.), The Language of Social Research. New York: Free Press. Killian, Lewis M. 1964 "Social movements." Pp. 426-55 in Robert E. L. Faris (ed.), Handbook of Modern Sociology. Chicago: Rand McNally. 1968 The Impossible Revolution: Black Power and the American Dream. New York: Random House. Kirchheimer, Otto 1961 Political Justice: The Use of Legal Procedure for Political Ends. Princeton: Princeton University Press. Kunstler, William M. 1966 Deep in My Heart. New York: William Morrow. Lewis, Anthony, and writers for The New York Times 1966 The Second American Revolution: A First-Hand Account of the Struggle for Civil Rights. London: Faber & Faber. Lewis, David 1970 King: A Critical Biography. New York: Praeger. Lipsky, Michael 1968 "Protest as a political resource." American Political Science Review 62: 1144-58. Linz, Juan J. 1978 "Crisis, breakdown, and reequilibration." Pp. 1-124 in Juan J. Linz and Alfred Stepan (eds.), The Breakdown of Democratic Regimes. Baltimore: Johns Hopkins University Press. Lomax, Louis 1962 The Negro Revolt. New York: Harper & Row. Lusky, Louis 1964 "Justice with a southern accent." Harper's (March):62ff. Martin, Yancey 1977 Interview with Yancey Martin. Pp. 52-56 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Marx, Gary T. 1979 "External efforts to damage or facilitate social movements: some patterns, explanations, outcomes, and complications." Pp. 94-125 in Mayer N. Zald and John D. McCarthy (eds.), The Dynamics of Social Movements: Resource Mobilization, Social Control, and Tactics. Cambridge: Winthrop. Marx, Gary T. and Michael Useem 1971 "Majority involvement in minority movements: civil rights, abolition, untouchability." Journal of Social Issues 27:81-104.



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THE SOUTHERN CIVIL RIGHTS MOVEMENT McAdam, Doug 1982 Political Process and the Development of Black Insurgency, 1930-1970. Chicago: University of Chicago Press. 1983 "Tactical innovation and the pace of insurgency." American Sociological Review 48:735-54. McCarthy, John D. and Mayer N. Zald 1973 The Trend of Social Movements in America: Professionalization and Resource Mobilization. Morristown, NJ: General Learning Press. 1977 "Resource mobilization and social movements: a partial theory." American Journal of Sociology 82:1212-41. McLendon, Irmgard 1963 "Pritchett plan succeeds." Atlanta Journal and Constitution (July 18): 14. Meier, August and Elliott Rudwick 1973 CORE: A Study in the Civil Rights Movement, 1942-1968. New York: Oxford University Press. Miller, William R. 1968 Martin Luther King, Jr.: His Life, Martyrdom and Meaning for the World. New York: Avon. Morris, Aldon 1981 "Black southern student sit-in movement: an analysis of internal organization." American Sociological Review 46:744-67. Myrdal, Gunnar 1944 An American Dilemma. New York: Harper & Row. New South 1963 "Civil disobedience and the law." l 8(0ctober-N ovember):24-28. Oberschall, Anthony 1973 Social Conflict and Social Movements. Englewood Cliffs, NJ: Prentice-Hall. Parks, Rosa 1977 Interview with Rosa Parks. Pp. 31-33 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Peltason, J. W. 1961 Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation. Urbana: University of Illinois Press. Perrow, Charles 1979 "The sixties observed." Pp. 192-211 in Mayer N. Zald and John D. McCarthy (eds.), The Dynamics of Social Movements: Resource Mobilization, Social Control, and Tactics. Cambridge: Winthrop. Peterson, Horace C. and Gilbert C. Fite 1957 Opponents of War, 1917-1918. Madison: University of Wisconsin Press. Piven, Frances Fox and Richard A. Cloward 1979 Poor People's Movements: Why They Succeed, How They Fail. New York: Vintage. Pritchett, Laurie 1977 Interview with Laurie Pritchett. Pp. 398404 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Raines, Howell (ed.) 1977 My Soul is Rested. New York: Bantam. Roberts, Dennis 1965 Diary kept while working as legal assistant to C. B. King, civil rights attorney, in Al-

bany, Georgia, 1963-1965. In files of Meiklejohn Civil Liberties Institute, Berkelev, California. Schwartz, Michael 1976 Radical Protest and Social Structure. New York: Academic Press. Shuttlesworth, Fred 1977 Interview with Fred Shuttlesworth. Pp. 166-76 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Sitton, Claude 1962 "When a southern Negro goes to court." The New York Times Magazine (January 7):10ff. 1963 "The 'movement' in Albany, Ga." The New York Times (July 11):24. Smelser, Neil 1963 Theory of Collective Behavior. New York: Free Press. Southern Patriot 1963 "Albany: an end and a beginning." (October):!. Tilly, Charles 1978 From Mobilization to Revolution. Reading, MA: Addison-Wesley. Turner, Ralph H. 1969 "The public perception of protest." American Sociological Review 34:815-31. 1970 "Determinants of social movement strategies." Pp. 145-64 in Tamotsu Shibutani (ed.), Human Nature and Collective Behavior: Essays in Honor of Herbert Blumer. Englewood Cliffs, NJ: PrenticeHall. Turner, Ralph H. and Lewis M. Killian 1957 Collective Behavior. Englewood Cliffs, NJ: Prentice-Hall. 1972 Collective Behavior. Second edition. Englewood Cliffs, NJ: Prentice-Hall. Vander Zanden, James W. 1965 Race Relations in Transition: The Segregation Crisis in the South. New York: Random House. Von Eschen, Donald, Jerome Kirk and Maurice Pinard 1969 "The disintegration of the Negro nonviolent movement." Journal of Peace Research 3:216-34. Walker, Wyatt T. 1963 "Albany: failure or first step?" New South 18(June):3-8. Watters, Pat 1971 Down to Now: Reflections on the Southern Civil Rights Movement. New York: Pantheon. Wrong, Dennis 1961 "The oversocialized conception of man in modern sociology ... American Sociological Review 26:183-93. Young, Andrew _ 1977 Interview with Andrew Young. Pp. 472-80 in Howell Raines (ed.), My Soul is Rested. New York: Bantam. Zinn, Howard 1962 Albany: A Study in National Responsibility. Atlanta: Southern Regional Council. 1965 SNCC The New Abolitionists. Boston: Beacon.


Social change lies at the heart of the definition of a social movement. A social movement is a broad set of sustained organizational efforts to change the structure of society or the distribution of society's resources. 1 Within social movements, law reformers typically view law as a resource or strategy to achieve desired social change. 2 Since social change is the purpose of a social movement, law reform generally is taken to provide a means of realizing that goal. 3 According to this conventional view, social movements, law reform, and society interact in a simple, unidirectional fashion. Social movement organizations seek to secure law reform; in tum, changes in the law bring about changes in society. While this conventional conception dominates much research and can be helpful for the purpose of analyzing the direct effects of social movement law reform,4 it misses several important dimensions of the relationships among social

t Associate Professor of Public Policy and Chair of the Regulatory Policy Program at Harvard University's John F. Kennedy School of Government. I am grateful for the research assistance provided by Travis LeBlanc and Matthew Salloway, as well as for the useful comments from Pete Andrews, Chris Bosso, Mike McCloskey, Tony Rosenbaum, and the participants in the Symposium on "Social Movements and Law Reform" at the University of Pennsylvania Law School. 1 See, e.g., Mario Diani, The Concept of Social Movement, 40 Soc. REv. 1, 3-7 (1992) (surveying social scientists' conceptualizations of social movements as organizational efforts to achieve structural or distributional change in society);John D. McCarthy & Mayer N. Zald, &source Mobilization and Social Movements: A Partial Theory, 82 AM.]. Soc. 1212, 1217-18 (1977) (defining a social movement as "a set of opinions and beliefs in a population which represents preferences for changing some elements of the social structure and/ or reward distribution of a society"). 2 SeeJOELF. HANDLER, SOCIALMOVEMENTSANDTHELEGALSYsTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE 2, 36 ( 1978) (emphasizing the primacy of achieving substantive goals through law reform). In some cases, of course, law reformers may well seek legal change for other reasons, such as for its symbolic value or, less altruistically, as a means of organizational or professional maintenance. 3 Id. 4 See id. at 35 (examining the effectiveness of social movement law reform in part by assessing its impact on tangible movement goals); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 4-6 (1991) (analyzing whether litigation has resulted in significant social change).


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movements, law, and society. First, social movements seek to effect social change through means other than law reform, whether it be by seeking to alter public opinion, mobilizing voters, or creating new, nonlegal norms of behavior. These shifts in public values and nonlegal norms can sometimes directly bring about social change. Second, changes in society's values and public opinion can feed back into the legal system and affect the prospects for law reform and enhance the effective implementation oflegislation.'' Finally, law reform efforts themselves may have an impact on public opinion, with action by courts and other legal institutions sometimes lending legitimacy to the claims advanced by social movements. 6 In these ways, social movements, law, and society interact with one another in a more dynamic, bidirectional fashion than is generally recognized. The symbiotic nature of the relationships among social movements, law, and society is well illustrated by the history of the environmental movement. The environmental movement has contributed to dramatic changes in law and in public values in the United States, and, as a result, society has achieved notable improvements in some of its underlying environmental conditions. Yet the relationships among the environmental movement, law, and society have been decidedly interactive, not unidirectional, over the past three decades. The movement existed for much of the twentieth century as a small niche in American society, outside the mainstream of prevailing political discourse. Beginning around the early 1970s, however, the environmental movement began to transform both law and society. Congress created a large web of new federal environmental legislation along with new rights for citizens and environmental groups to file suits to enforce government regulation. Public opinion also shifted dramatically and the environment took a prominent, and seemingly

' As Joel Handler has written, "[i]n general, it is exceedingly difficult to separate the independent effects of legal changes from effects caused by the interaction of legal changes with broader societal factors such as public opinion, the effects of timing, and social and economic conditions." HANDLER, supra note 2, at 37. " See Joseph Stewart, Jr. & James F. Sheffield, Jr., Does Interest (',roup Litigation Matter? The Case of Black Political Mobilization in Mississippi, 49 J. POL. 780 ( 1987) (demonstrating a statistical relationship between litigation and political mobilization); see al50 HANDLER, supra note 2, at 214-22 (describing how law reform litigation can result in publicity and popular political support); MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM A.'\ID THE POLITICS OF LEGAL MOBILIZATION 48 (1994) (showing how litigation has shaped expectations of female employees); STUART A. SCHEIN GOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE 7 (1974) ("Formal recognition by the courts may therefore improve the bargaining position of those upon whom the judges look with favor.").

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permanent, place on the public agenda. 7 Following its transformational period in the early 1970s, the movement settled back into a pattern of more normal politics and law reform. Compared with the dramatic shift in the legal landscape that accompanied the transformational period, the movement has more recently sought discrete, even incremental change, with activists working as often to maintain past gains as to achieve new ones. Environmental organizations have grown in both size and number since the 1970s, and they now work within a society that generally accepts the values of environmentalism, and within a regulatory regime that entrenches those values in law. This Article examines the institutionalization of the environmental movement in the United States, paying particular attention to the movement's interaction with law and society. In Part I, I trace the rise of the environmental movement in American politics and the significant changes in both law and social attitudes that the movement helped bring about in the 1970s. In Part II, I show how the movement became more institutionalized beginning in the late 1970s and continuing through the 1990s. Just as the movement shifted from being a minority viewpoint in American politics to an institutionalized presence in the center of American political activity, its law reform efforts shifted as well. Reformers in the early 1970s pursued and achieved "transformational" law reform, helping to effectuate a dramatic change in the legal landscape through major legislation. In comparison, reformers in the institutionalized environmental movement now tend to pursue what more appropriately might be considered "normal" law reform, or efforts to secure discrete or incremental legal change as well as reactive efforts to maintain earlier legal gains. 8 The fact that the contemporary environmental movement now plays a normal role in policymaking is indicative of the impact of the

7 See, e.g., MARY GRAHAM, THE MORNING AFTER EARTH DAY: PRACTICAL ENVIRONMENTAL POLITICS 55 (1999) (noting that "pollution control and conservation have won a permanent place on the American political agenda"). 8 The distinction I make here between "transformational" law reform and "normal" law reform bears a certain affinity to Bruce Ackerman's distinction between the "higher lawmaking" of constitutional moments and the "normal lawmaking" characterized by ordinary political give-and-take. 1 BRUCE ACKERMAN, WE THE PEOPLE 6 (1991). Gerald Rosenberg makes a somewhat similar distinction when he differentiates between (1) litigation that aims to achieve "significant social reform" or "policy change with nationwide impact" and (2) litigation pursuing individual redress, changing the activities or procedures of an individual bureaucracy, or seeking to remove obstacles for other social refom1 efforts. ROSENBERG, supra note 4, at 4-5, 342.

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movement on American law and society. Though the United States still confronts environmental challenges, the environmental movement has succeeded in achieving significant changes in law, social values, and certain environmental conditions. Yet the very success of the environmental movement has also tended to constrain the movement in important ways. In Part III of this Article, I suggest that environmentalism in the United States appears to have achieved a steady state, with law and social norms mutually reinforcing each other to maintain (at least for now) a relatively stable commitment to environmental protection. Environmental regulation has effectively addressed many tangible environmental problems and, in so doing, may have lessened the sense of urgency felt by the public when it comes to less palpable, but potentially no less serious, environmental concerns such as global warming. Even though public opinion has served to prevent a large-scale retreat from existing environmental controls, prevailing public sentiment tends to be latent and insufficient to support another transformational expansion of environmental regulation. The environmental movement finds itself fighting smaller battles to maintain past victories and faces competition and divisions within its ranks. Any major advances in environmental regulation will still require salient focal points and crises to prompt legislative action, but these very disasters are less likely to occur precisely because of the existing network of environmental regulation. The very presence of the set of environmental laws established during the transformational period of the 1970s makes it less likely that further significant transformations in environmental law will occur for many decades to come. I.


The environmental movement in the United States dates back at least to the latter part of the nineteenth century, but the movement transformed itself dramatically during the latter half of the twentieth century. The changes that occurred during what many have called the "environmental decade" of the 1970s amounted to nothing less than a sea change in both public attitudes and environmental law. In this Part, I trace the development of the contemporary environmental movement in the United States and the legal and social changes that accompanied its growth. A.

The Early Roots of the Environmental Movement

Environmentalism's roots in American political life extend at least

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as far back as the 1800s. In those early times, the movement manifested itself in two distinct, but sometimes related, strands. The first strand consisted of efforts principally by hunters, naturalists, and explorers to promote the conseivation and preseivation of the nation's forests and other natural resources. The second consisted of efforts by doctors, engineers, and urban reformers to develop sanitation systems, ensure clean water supplies, and improve the overall living conditions in America's growing cities. The first manifestation of a concentrated environmental movement came in the late nineteenth and early twentieth centuries with efforts to improve the management of the nation's natural resources. Until this time, management of such resources was highly decentralized or, for some resources, entirely nonexistent. The rise of the Progressive Era saw the expansion of the federal government into management of water, land, and wildlife. Congress adopted legislation setting aside lands for reseives as well as authorizing the management of natural resources by a series of new agencies, including the Forest Service and the Bureau of Reclamation, and later, the Fish and Wildlife Service and the Bureau of Land Management." These agencies tended to favor the efficient management of natural resources, promoting the conseivation philosophy articulated by Gifford Pinchot, the first director of the U.S. Forest Service. Pinchot held that resources should be managed to promote their efficient use for multiple purposes, including grazing, mining, logging, game protection, and recreation. 10 By the first decade of the twentieth century, the federal government had set aside over one hundred million acres of national forests and created nearly a dozen major national parks. 11 Some of the earliest conseivation groups came into existence during this period. John Muir founded the Sierra Club in 1892, and contemporaneous groups such as the Audubon Society, National Wildlife Federation, Ducks Unlimited, and the Izaak Walton League were organized by hunters and naturalists interested in the effective management of wildlife and forest resources. The Sierra Club, for example, took an active role in seeking to preseive pristine wild areas in



Al\DREWS, supra note 9, at 146, 150; BRULLE, supra note 9, at 152-53.



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and around the Yosemite Valley in California. Unlike other groups of the era, the Sierra Club tended to resist the prevailing multiple-use philosophy and favored instead the preservation of wild areas for their intrinsic value. n A second early strand of the environmental movement could be found in America's growing cities around the beginning of the twentieth century. The growth of American cities in the latter part of the nineteenth century brought with it greater concentrations of people, new challenges in managing waste, and large-scale industrial facilities generating increased amounts of air and water pollution. A sanitation movement emerged, prompting the development of municipal landfills and water and sewage treatment systems. 13 By the early decades of the twentieth century, the movement for improved living conditions in the nation's cities began to fuse with the progressive movement, which sought to clean up both city politics and the living and working conditions of urban residents. 14 Civic reformers organized to promote the beautification of cities, establish parks, clean up streets, and reduce smog, soot, and other byproducts of industrialization. 1; The urban reformers succeeded in making significant improvements in urban living conditions. For example, infant mortality rates in New York City reportedly dropped from about twenty-five percent in 1885 to less than ten percent in 1915, following the introduction of new drainage, sewage, and water systems. 16 The very success of this new urban infrastructure took some of the momentum out of the urban sanitation movement, causing it to decline as a major force in urban politics. According to Richard Andrews, "[t]he sanitation movement fragmented in the early twentieth century, and while its several professional elements continued to develop and to make progress on some issues, no other broad-based movement to reduce urban and industrial pollution appeared until the modern environmental movement, more than half a century later." 17

12 For a history of the Sierra Club, see TOM TU~l\/ER, SIERRA CLUB: 100 YEARS OF PROTECTING NATURE (1991). 13 ANDREWS, supra note 9, at 113-20. 14 See id. at 109 (describing the relevance of the early urban public health movement to emerging environmentalism). 10 Id. at 129-30. rn Id. at 133. 17 Id. at 109.

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