Abstract

http://ssrn.com/abstract=1592667
 
 

Citations (2)



 


 



Winning Through Losing


Douglas NeJaime


University of California, Irvine School of Law

April 19, 2010

Iowa Law Review, Vol. 96, p. 941, 2011
Loyola-LA Legal Studies Paper No. 2011-03

Abstract:     
This Article locates the productive function of litigation loss in social movements. Departing from previous sociolegal scholarship, which largely centers on the positive possibilities of litigation (offered through litigation victory and process), this Article identifies social movement effects rooted in the unique attributes of judicial defeat. In doing so, it draws on the specific limitations of litigation identified in more pessimistic accounts of court-centered reform, but reconfigures those limitations within a complex, dynamic framework of law and social change. Even as my contribution fills a significant gap - the inattention to loss and its aftermath - in the legal mobilization and cause lawyering literature, I rely on key insights from this literature to build a theoretical framework with which to analyze judicial defeat: My analysis contextualizes court-centered strategies within broader processes of social change and situates litigation tactics within a framework of multidimensional advocacy. To show how advocates manage litigation loss in ways that speak to movement actors and constituents as well as to elites and the public, I draw on examples from the LGBT rights and Christian Right movements. These examples demonstrate that in configuring judicial defeat for internal movement purposes, sophisticated advocates may use litigation loss (1) to construct organizational identity, and (2) to mobilize constituents. In translating loss into strategies aimed at decision makers outside the movement, advocates may use litigation loss (1) to appeal to other state actors, including elected officials and courts, through reworked litigation and non-litigation tactics, and (2) to appeal to the public by stressing the need to discipline a countermajoritarian judiciary. Overall, my functional account of litigation loss demonstrates that judicial setbacks may, counter-intuitively, contribute to the process of reform by producing conversations that rely on the multiple (and conflicting) ways in which we think about courts’ constraints and the role of those constraints in the process of social change.

Number of Pages in PDF File: 72

Keywords: legal mobilization, LGBT rights, Christian Right, litigation, loss, defeat, indirect effects

Accepted Paper Series


Download This Paper

Date posted: April 20, 2010 ; Last revised: March 7, 2011

Suggested Citation

NeJaime, Douglas, Winning Through Losing (April 19, 2010). Iowa Law Review, Vol. 96, p. 941, 2011; Loyola-LA Legal Studies Paper No. 2011-03. Available at SSRN: http://ssrn.com/abstract=1592667

Contact Information

Douglas NeJaime (Contact Author)
University of California, Irvine School of Law ( email )
535A Administration
Irvine, CA 92697-1000
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,543
Downloads: 264
Download Rank: 64,953
Citations:  2

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.188 seconds