Portside

It has never been clearer that ideas germinated by social movements exert great force in law and politics in the United States. Examples from the left abound over the last decade. Occupy Wall Street mobilized people against growing economic inequality and laid a foundation for anticapitalist critique and socialist politics. Indigenous resistance from Hawaii to the Dakotas connected environmental justice to the revival of anticolonial politics. The Ferguson and Baltimore rebellions, combined with organizing by the Movement for Black Lives and a growing constellation of abolitionist organizations, have made anti-Blackness, white supremacy, and police violence core issues on the liberal-to-left spectrum and redefined the terms of policy debate. About five years ago, through direct action, disabled activists forestalled the repeal of the Affordable Care Act. As we write, Immigrations and Customs Enforcement announced the closure of Etowah County Detention Center in Alabama—a long-time site of abolitionist resistance. And through strikes and organizing, nurses, teachers, taxi and app-dispatched drivers, Amazon warehouse workers, and Starbucks baristas are reasserting worker power throughout the country.

Of course, this organizing on the left is matched—dwarfed even, in certain respects—by organizing on the right. Whether you call it frontlash, backlash, or retrenchment, the right is building on decades of organized infrastructures and consolidating considerable state power at the local, state, and federal levels. There are the attacks on the teaching of histories of enslavement and colonialism (mislabeled “critical race theory”), bans on speaking about trans and queer identities (“don’t say gay”), and the culmination of a long campaign to outlaw abortion. There is the racist expansion of stand your ground laws and criminalization of left protest in a number of states. These efforts mobilize the right’s base. All the while, the Democratic Party faithfully affirms notions of law and order, decrying those who call to defund the police as naïve and out of touch—attempting to silence left flanks.

What role does the law play in this climate? From the housing and debt crises to the sprawling grip of the carceral state on all corners of life, it is plain that neoliberal law and politics have failed the majority of people in the United States. Unsurprisingly, court-centered strategies for progressive social change championed by liberal elites have proven ineffective at reversing neoliberal governance. The consolidation of a conservative supermajority on the Supreme Court forced some liberals to confront the limits of their belief in the courts. Alongside modest proposals for judicial reform, there are more critical arguments. Some who believe in emancipatory horizons argue that we must reduce the role of the judiciary within our politics and that the Supreme Court is a fundamentally antidemocratic force; the answer is not to re-instantiate the courts’ power in liberal guise but to reduce or abolish it altogether. This critique of courts is not limited to the Supreme Court. Across the country, social movement organizations are seeding campaigns to shrink the footprint of criminal courts, to challenge housing courts as eviction mills, and to obstruct family courts separating children from their families.

We think these are small steps in the right direction. The greatest hope of achieving the large-scale legal change needed to build a robust democracy lies in today’s left social movements—their imaginations, tactics, and strategies for political, economic, and social change. Organizing and collective disruption are often thought of as in opposition to the law and the order it imposes. There is indeed a tension there, but it is only through organizing from below that we might transform the antidemocratic structures that constrain emancipatory change.

In a recent law review article, we made the case to other legal scholars that we should think about law in and with movements—a distinctive form of legal thinking we call movement law. In our conception, movement law is not the academic study of social movements; it is a praxis that requires thinking and experimenting alongside movements.

There is a broader valence to this thinking, versions of which are increasingly percolating all around us, not just in the academy. Our formal institutions of law and politics are designed to serve Amazon executives and shareholders rather than the 1.5 million people who work for it, the cop and the prosecutor, rather than those they arrest and imprison, the pharmaceutical company rather than the many people in need of lifesaving drugs. The question for those focused on law is how we relate to these formal institutions, what credence we give them, and how we build avenues of resistance and alternative institutional configurations. Social movements underscore that law is not an apolitical body of rules to be parsed and applied by technical experts. The law is political and relational. Law is governed—in both design and enforcement—by unequal distributions of wealth and power. But it is productively shaped, too, by grassroots contestation, as recent books by Scott Cummings and Deva Woodly suggest.

Movement law draws on the experience of lawyering with and for movement formations. It also builds on jurisprudential schools of thought, including critical legal studies, critical race theory, and feminist legal theory. By looking to lived experience and structures of inequality, scholars such as Mari Matsuda and Kimberlé Crenshaw have long complicated conventional accounts of law—what it does and for whom and how it can and should change—with an eye toward collective struggle. Gerald Torres and the late Lani Guinier wrote about how social movement contestation can generate legal meaning. “Demosprudence,” as they call it, describes how “mobilized constituencies, often at the local level, challenge basic constitutive understandings of justice in our democracy.” Building on this work, movement law asks us to think alongside social movements as they struggle for power and produce emancipatory horizons.

Undoubtedly, this is a daunting moment in which to direct attention to movements. The left is in relative demobilization and disarray, despite some recent wins, including recent labor wins. But too much hangs in the balance to look away.

A fundamental aim of movement law is to understand social movements’ strategies, tactics, and experiments as pathways for justice. To understand that emancipatory horizons must be generated collectively and in relation to grassroots struggle.

Contemporary workers’ movements, for example, are reconceiving relationships between workers, employers, and the state by pushing at the narrow parameters of collective action in the workplace as defined by the National Labor Relations Act (NLRA) of 1935. The NLRA was itself born of massive, disruptive, and sustained labor activism in the industrial workplaces of the early twentieth century. But courts interpreted the statute to constrain worker organizing in favor of capital. And Congress, in part in reaction to widespread strike activity following World War II, amended the NLRA in 1947, imposing rules of workplace organizing that further deterred collective action.

Working within this legal regime, contemporary workers’ movements fight rearguard campaigns to preserve the eligibility of low-wage workers for current workplace protections while envisioning new ways to assert collective worker voice. In the last two decades, movement organizations have supported worker mobilization and collaborated with unions to secure contingent gains. Garment workers in Los Angeles have fought to establish joint liability for wage violations between well-known fashion brands and small manufacturers in their supply chains. Taxi workers in New York have engaged in multiple rounds of direct action to raise fares, forgive debt, and protest the Trump “Muslim Ban.” Domestic workers have struggled against isolation and multiple forms of subordination to pass “bills of rights” that raise their labor standards in New York, California, and eight other states. Restaurant workers have taken on high-end chains and agitated against the $2.13 minimum wage for tipped employees. Tomato pickers in Florida have forced large fast food companies to raise wages and investigate sexual harassment in their supply chains. Amazon workers in New York and Alabama are currently trying to unionize their warehouses.

These efforts are significant, both in themselves and in relation to the law. Activist workers frontally attack technologies of workplace domination, reject a sharp divide between employment and labor law, and nurture grassroots worker leadership in social bargaining for more just workplace arrangements. They act both within and outside of the NLRA, adjusting to changing dynamics between employers and the state. They demonstrate that workers can overcome the constraints imposed by legal regimes on organizing by organizing. Thinking in conversation with such campaigns makes clear how grassroots contestation at the local level is central to the shape of law and legal entitlements. It illustrates the limits of established political and legal processes to represent working-class and poor people, and the power of capital in defining the terrain. And it demonstrates how movements enact change while building grassroots power.

Thinking with movements also allows us to see that even strategies around which the left has understandable hesitation may be retooled to build contingent power. The new right to counsel in eviction proceedings in New York City offers a case in point. It could be argued that this struggle, by focusing on assisting individuals in court rather than the broader structures that lead to eviction in the first place, will do more to legitimize the fundamentally unequal political economy that produces housing precarity than to render housing provision more just. This concern is sometimes known as “the critique of rights”: the idea that the promise of individual rights cannot solve collective problems under a system of racial capitalism. The struggle for housing justice must be broader than the right to counsel, dependent as rights are on existing relationships of power and economy.

This does not mean, though, that struggles over the right to counsel cannot be a productive part of a larger fight. Indeed, as John Whitlow has recently written, a push for counsel can be part of a constellation of efforts to increase the power of organized tenants in face of a larger crisis of housing and an incredibly powerful real estate industry. This is how, in New York City, tenants unions spanning from the South Bronx to Ridgewood, Queens, formed the Right to Counsel Coalition, developed a larger analysis of the housing court system, and aimed to disrupt the court process. All the while, constituent members of the coalition built their ranks and their organizational capacity. As a result, even though the Right to Counsel legislation has passed, the fight continues: through mutual aid and for good cause eviction legislation; for meaningful state housing subsidies beyond one-time pandemic relief; and, more broadly, for a renewed claim for housing for its use value and as central to community safety.

Another insight that arises from attending to social movements is how they engage in experimentation with institutional and social forms, from mutual aid networks to community bail funds to worker organizing collectives. In this way, social movements not only attempt to organize a base but prefigure the economic, social, political relationships of the world they are working to build. Because of the overwhelming power of capital and the disciplining force of the state, these experiments are often relatively small in scale or narrow in application. But they mark possible openings and places to replicate for scale.

An important example are the grassroots groups proliferating modes of collective action against the carceral state. These range from cop- and court-watching groups that gather to document the everyday violence of state policing and criminalization, to community bail funds that pool resources to bail people who could not otherwise afford their freedom, to participatory defense collectives that support people criminalized by the state while building broader collective knowledge of criminal courts. Beyond criminal courtrooms, there are campaigns for people’s budgets and community control of the police; there are grassroots efforts to create transformative justice responses to harm outside of policing and incarceration. Using strategies that destabilize the normative footing of the carceral state, organizers redefine concepts of harm, community, and public safety as they directly contest the racialized logic of criminal law enforcement. A “community bail fund,” for example, repeatedly posts bail for strangers, demonstrating through collective action that what the state claims keeps the “community” safe—pretrial detention based on poverty—in fact creates communal harms. Such activism challenges the criminal law’s central focus on individual behavior, creating space for social movements to build bonds of community solidarity and safety as they develop their political analysis and grow their power.

These prefigurative projects of social transformation directly challenge prevailing legal and institutional arrangements and the structures and understandings that hold them in place. They create pathways for justice and fight for horizons otherwise made invisible in conventional accounts of law. And they point to the broad array of strategies and tactics central to justice projects focused on transformation.

One final lesson of movement law thinking is that movements remind us of alternative arcs of history, often ignored in legal and liberal discourse, of people collectively generating ideas and struggling to build and practice alternative possibilities from the bottom up, often at great risk to their own safety. Embedded in these alternative arcs are rich intellectual traditions. How can we create structures of living that allow us to thrive together on shared land and with multiple forms of life? How have people lived and struggled in these ways in the past? What past struggles over land, resources, and labor shape our current norms and laws? These questions are deeper than what traditional legal discourse and adjudicatory forums allow. And when juxtaposed with conventional legal structures, they allow for new, often revelatory, ways of thinking about law, the state, and justice.

Investigating histories of how past movements have engaged law can illuminate pathways for us today. Legal historian Aziz Rana, for example, tells the story of the Black Panther Party’s 1970 constitutional convention as a way to denaturalize the constitutional veneration at the heart of U.S. political culture and to recover how people’s movements have resisted the document. The convention is estimated to have been attended by at least 12,000 people, including members of the American Indian Movement, the Young Lords, and Students for a Democratic Society. For the Panthers, the convention was a rejection of the U.S. Constitution and its naturalization of Black people’s “economic and political subordination.” The Constitution attempted to sever Black people in the United States from anticolonial struggles around the world. Participants generated a new constitutional text, with demands that included reparations, the transfer of wealth, truth commissions, and expanded socioeconomic rights. The convention marked the United States as a colonial project and conjured the possibility of a radical and reconstituted alternative.

Contemporary social movement ideation generates similarly destabilizing critiques of our legal order, for example in the realms of policing and criminal law. The radical imagination of the Movement for Black Lives and a revitalized wave of abolitionist organizing have built on longstanding critiques of race and capitalism in the Black radical tradition. It is precisely because of the last decade of rebellious racial justice organizing that the framework of “racial capitalism”—developed by Cedric Robinson and anti-apartheid activists in South Africa before that—has found purchase both in the academy and beyond. Movement voices offer a distinct way of conceptualizing the radical imagination through which movements seek to de- and reconstruct law and the state.

As these cases suggest, movement law points to the contingency of the stories we tell about history and power and our contemporary arrangements. It highlights the limitations of relying on traditional legal sources instead of attending to people’s experiences and movement struggles and narratives. And it reveals the inadequacies of liberal legalism and the violence of law. It aims to disrupt the pathways of formal politics, and the faith in the courts to do right by the people. It identifies that social movements point the way toward new institutional arrangements and social relations.

One result of a movement law orientation is a degree of accountability to get the stories we tell right and to offer thick description of social movement activity and the normative frameworks that undergird such activity. As we think about the lived experience of the people engaged in organizing from an orientation that grounds us in a collective project, we are simultaneously accountable to them. When we identify and support ideas generated within progressive and left movements, we contribute to seeding policy discourse with radical aims and means. Movements can be co-opted, contained, and channeled when they attempt to translate long-term organizing and mobilizing into policy programs. Elected officials and bureaucracies appear to respond to mobilizations while altering as little as possible. Institutions and individuals, including NGOs, journals, foundations, and universities, use the material force of the current order to suppress and co-opt these disruptive efforts. Academic institutions increasingly rely on soft funding for centers and institutes that issue reports and advise state bodies; these initiatives rely on organized money—for example, the for-profit “gunshot detection” company Shotspotter funds multiple university research institutes—and tend to entrench the status quo. These initiatives often obscure the protest, rebellion, and organizing that made possible the shifts in ideation with which they engage and respond.

In contrast, movement law helps protect the most far-reaching aspirations of radical collective thinking. Movement law has the capacity to resist compromise, prevent the dilution of programs of structural social change, and render policy shifts more politically durable. When we think, write, and act alongside movements, we help name and disrupt the everyday violence of law and shape the discourse in which we participate.

Social movements have marshaled some of the most profound changes in how we relate to one another and what we can expect of the state. They galvanize hope and collective action in a way that can guide people to face the material crises of our time. By taking our cues from social movements, the radical visions we develop—those whose scale matches the scale of the problems we face—can change what we think is possible both within and outside of the law.

Editors’ Note: Portions of this essay are adapted from the article “Movement Law,” published in the Stanford Law Review in 2021.

Amna A. Akbar is Professor of Law at The Ohio State University Moritz College of Law.

Jocelyn Simonson is Associate Professor at Brooklyn Law School, where she writes and teaches about criminal law, criminal procedure, evidence, and social change. She studies bottom-up interventions in the criminal legal system, such as bail funds, copwatching, courtwatching, and participatory defense, asking how these real-life interventions should inform our conceptions of the design of criminal justice institutions, the discourse of constitutional rights, and the meaning of democratic justice. Her article “Police Reform Through a Power Lens” is forthcoming in the Yale Law Journal. She tweets @j_simonson.

Sameer Ashar is Clinical Professor of Law and Director of the Workers, Law, and Organizing Clinic at UC Irvine School of Law.

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