Rights Lawyer Essentialism: Reflections on Richard Thompson Ford’s Rights Gone Wrong
27 Pages Posted: 3 Apr 2012 Last revised: 16 Apr 2013
Date Written: April 2, 2012
This essay critically reviews Richard Thompson Ford’s Rights Gone Wrong: How Law Corrupts the Struggle for Equality (2011), a comprehensive critique of the American system of civil rights. Ford argues that civil rights litigation and activism are anachronistic and lacking in nuance, and are therefore no longer useful for addressing today’s entrenched social problems. He suggests that categorical anti-discrimination rules are formalistically applied by lawyers and courts, yielding results that do not advance social justice, but instead protect self-indulgent, fringe claimants (e.g., men complaining that bars that sponsor “ladies’ nights” are engaged in illegal gender discrimination). He contends that civil rights remedies are problematic because they encourage society to view rights as individual entitlements. Damages remedies are not suitable to addressing complex civil rights problems, while structural injunctions and class actions are too broad and clunky to offer meaningful relief. He calls instead for an administrative regime that treats civil rights issues as “public policy questions that involve difficult technical and administrative complexities and tricky questions of distributive justice.”
While Ford’s book is both provocative and comprehensive, this essay critiques his work by showing that his claims are overbroad and do not support his call for reform. First, it argues that he relies too heavily on isolated examples of abuses of the civil rights laws that are not generalizable to the entire system. This devalues the continuing importance of most civil rights work. Second, it demonstrates that Ford’s harsh condemnation of civil rights remedies fails to account for the importance of a multi-faceted approach to addressing civil rights problems. In contrast to Ford’s claim, the availability of multiple types of remedies increases the nuance of the rights system because they are complementary. Damages may be more suitable to address some types of social issues than injunctions or class actions; other times the situation may be reversed. By disaggregating remedies, he understates the contribution they make collectively. Finally, and most importantly, the essay responds to Ford’s critique of right lawyers, which depicts them as elitist, litigation hawks who care little for their clients or the subtleties of the dialectic political process. This approach, which I call rights lawyer essentialism, permeates much of the academic literature, but is based on inaccurate stereotypes and anachronistic understandings of public interest practice. Contemporary rights lawyers have transformed their roles in social change campaigns to invoke a wide range of non-litigation tactics, such as lobbying, public education, and community mobilization, and employ litigation in ways that complement, rather than supplant, these other tactics. Their work also now often includes precisely the type of context-specific, “new governance” approaches to solving social problems that Ford argues should be taking place through an administrative regime. While Ford argues that civil rights are an anachronism, he relies on an outdated view of the lawyers who carry out its important work.
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