Home / General / Thin and Wiry

Thin and Wiry

/
/
/
565 Views

There are two major potential drawbacks to litigation as a strategy. One–that it is particularly likely to generate a backlash–I recently discussed. The other is captured by Matthew Yglesias’s “fat and lazy” hypothesis: relying on litigation makes progressives less effectual in other political arenas. (This can be seen as a variant of Gerald Rosenberg’s famous argument about the “flypaper court”; the idea that courts act as a lure that consume progressive resources that would be better used elsewhere.) Julie Saltman disagrees, and Matt responds. While I don’t deny the potential for litigation (like any successful political strategy) to cause complacency in some cases, I think the empirical evidence on legal mobilization is with Julie.

The first thing to note is that, in practice, activists who use litigation are far savvier than is often assumed. (See here or here or here, for example.) Litigators are generally well aware of its limitations, and explicitly see litigation as part of a broader political strategy. The civil rights movement didn’t focus on litigation in the 40s and 50s because they were rubes drawn to flypaper; they would have preferred federal civil rights legislation to judicial policy-making. It’s just that litigation was the best option. The filibuster (and malapportionment of the Senate) prevented Congress from acting. It’s safe to say that lobbying the Alabama legislature would not be an effective use of resources. The NAACP used litigation because it was where they could succeed. More importantly, the experience of the NAACP demonstrates that seeing political strategies as a zero-sum struggle within a fixed pool of resources is grossly misleading. The formal legal victories won by the LDF often had little immediate payoff, but they generated donations, public attention, and mobilized political activism. Progressive groups generally face the most serious collective problems; they are virtually always seeking public goods and can’t provide selective incentives. Litigation, which doesn’t require large numbers of people to initiate, can (and sometimes is) be an effective way of mobilizing progressives who would otherwise not act on behalf of their interests or beliefs.

Secondly, in terms of recent American history I also don’t see the evidence that litigation makes political movements “fat and lazy.” Abortion, of course, is the most famous case. And, as we know, abortion was one of the few progressive issues on which Bill Clinton was uncompromising. (Under Bush, Congress did pass legislation, but this was purely symbolic; it included language that insured that it would be struck down, again suggesting that Republicans don’t really want to change the status quo much.) Does that sound like a de-mobilized movement, unable to exercise effective power, to you? Gay rights is a tougher case, but again I don’t see it. Gay rights has been winning the battle of public opinion. And, again, I don’t think gay rights activists have disdained other forms of political activism at all; they simply realize that gay marriage is unlikely to be initiated by legislatures. Again, it’s worth noting that the gay rights movement in Canada has been notably reliant on litigation–and in the last few years Canada has been transformed from a context in which an NDP government in Ontario wouldn’t couldn’t pass gay marriage legislation to a context in which it’s legal in 7 provinces and will be made legal across the country by Parliament this year. (Litigation will not be as effective in the U.S., of course, but that’s because the climate is less favorable, not because litigation makes gay rights groups complacent or pre-empts other forms of activism.)

Obviously, overreliance on litigation is not a good thing, and progressives should be clear-eyed about what it can and can’t do. But I just don’t see much evidence for Matt’s claim that litigation has made liberals ineffectual. Liberals have been more successful at holding the line on reproductive freedom and gay rights (which use litigation extensively) than on fiscal policy (which doesn’t.) Progessives can’t afford to take any weapons off the table. (It may seem strange to include gay rights as a positive, given Election Day 2004, but 1)most of this initiatives just reiterated the legislative status quo, and 2)American policies on gay rights are still far, far better than they were 20 years ago, although litigation has been an important strategy throughout this period. You certainly can’t say the same thing about economic policy.)

  • Facebook
  • Twitter
  • Linkedin
This div height required for enabling the sticky sidebar
Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views :