Rethinking the Foundational Critiques of Lawyers in Social Movements

The question of whether lawyers help or hurt social movements has been hotly debated by legal scholars for nearly half a century. As progressive social movements began to decline in the 1970s, scholars developed a powerful critical account of the role that lawyers had played, stressing how lawyer domination and overinvestment in legal tactics had worked against sustainable grassroots activism. Despite significant changes in politics and the profession since the civil rights period, these foundational critiques of progressive lawyering have persisted, fostering profound skepticism about what lawyers can do “for and to” social movements.This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements -- from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order -- and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision. This Article seeks to reappraise the foundational critiques of progressive lawyers from the perspective of comparative institutional analysis. This analysis locates lawyers within a broader field of social activism in which nonlegal actors confront their own set of challenges in advancing movement goals: such as struggles over leadership, debates over the desirability of gradual versus radical change, and the constant threat of reversal and backlash. Legal scholars, focusing on what they know best (lawyers and courts), have not investigated the challenges to social movement activism within this broader field, which is the subject of a significant scholarly literature in social science. Drawing on insights from social science research, this Article asks how evaluation of lawyers in social movements might change if the same analytical tools that have been used to spotlight the limits of lawyers and legal advocacy were also applied to nonlegal actors and strategies. What would we learn by comparing the challenges social movements face outside of law to those faced by lawyers mobilizing inside the legal system? This Article’s central claim is that expanding the frame of critical analysis to highlight the parallel challenges that nonlawyers face in advancing social change outside of court weakens the power of critical accounts specific to lawyers. In short, reframing the way we think of social movements can rehabilitate the way we think about lawyers’ contributions to them