In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law.  In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will.  In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups.  In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation.  Why social movements have come to play this dramatic new role is the central inquiry of this Article.  To answer it, the Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics.

The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept — movement liberalism — that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.

This Article explores an important development in American legal theory and practice over the past decade: the rise of “movement lawyering” as an alternative model of public interest advocacy focused on building the power of nonelite constituencies through integrated legal and political strategies. Its central goal is to explain why movement lawyering has gained prominence, define its essential features, and explore what it reveals about the current state of efforts to work out an empirically grounded and normatively appealing vision of the lawyer’s role in social change. Toward that end, this Article shows how movement lawyering has long been an important part of progressive legal practice—complicating the standard historical account—while also illuminating the contemporary political and professional shifts that have powered the recent social movement turn. Synthesizing insights from social movement theory and practice, the Article then defines and analyzes the core features of the movement lawyering model—representing “mobilized clients” and deploying “integrated advocacy”—and explores how these features respond to long-standing critiques of public interest advocacy by presenting movement lawyers at their most accountable and effective: taking instructions from activist organizations in client-centered fashion and using law in politically sophisticated ways designed to maximize the potential for sustained social reform. In doing so, the new movement lawyering literature usefully refocuses attention on fundamental questions about the lawyer’s role in social change and thereby offers a crucial opportunity to jumpstart a contemporary dialogue—less freighted with the critical canon of the past and more rooted in empirical inquiry—about the conditions in which lawyering is most likely to produce accountable and effective democratic transformation.

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.

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