Sepper and Dinner on Feminist and Gay Lib Movements

Elizabeth Sepper, University of Texas at Austin School of Law, and Deborah Dinner, Emory University School of Law, have posted Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public, which is forthcoming in the University of Richmond Law Review 54 (2020): 759-797:

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. That same year, the growing feminist movement also launched protests for women's equality in public accommodations.

Our essay analyzes two case studies, from New Jersey in the late 1960s and California in the mid-1980s, to show what we might learn by integrating the histories of LGBTQ and feminist public accommodations activism. These case studies offer two lessons. First, the regulation of cisgender women and LGBTQ people stemmed from common sources of both law and custom. Public authorities and private businesses limited the access of unescorted heterosexual women, gay people, and gender nonconformists to public accommodations and surveilled their gathering in public space. For each of these groups, such policing was justified by fears of sexuality perceived to threaten the hetero-patriarchal family. Second, feminist and LGBTQ people's respective fights for equality in public reinforced one another. Before 1969, no city, state, or federal law prohibited sex, sexual orientation, or gender identity discrimination in public accommodations. Beginning in the 1960s, the LGBTQ and feminist movements pursued court battles and legal reforms. They ensured that liquor licensing no longer targeted cisgender women and LGBTQ people. Over the course of the 1970s and ‘80s, virtually all states came to adopt public accommodations laws prohibiting sex discrimination, and cities and states slowly began to explicitly include sexual orientation as well. Feminist and LGBTQ legal victories evolved in an interdependent rather than isolated manner.

--Dan Ernst

Farbman, "Resistance Lawyering"

The California Law Review has published "Resistance Lawyering," by Daniel Farbman (Boston College Law). The abstract:

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were inextricably linked to their movement politics and aspirations for systemic reform. Using new archival research that upends the existing historical consensus, I show that this linked practice was dramatically more effective than previously thought, both in protecting individual clients and as a means of building political opposition to slavery in local and national politics. This history should serve as a provocation for contemporary resistance lawyering. Many lawyers today practice within a legal system that they oppose in the hope of frustrating or dismantling that system. I suggest that today’s resistance lawyers can learn from the abolitionists’ integration of politics and daily practice as they fight to increase the political power and salience of their own work.

The full article is available here.

-- Karen Tani

Faulkenbury, "Poll Power: The Voter Education Project and the Movement for the Ballot in the American South"

Recently released by the University of North Carolina Press: Poll Power: The Voter Education Project and the Movement for the Ballot in the American South (April 2019), by Evan Faulkenbury (State University of New York, Cortland). A description from the Press:

The civil rights movement required money. In the early 1960s, after years of grassroots organizing, civil rights activists convinced nonprofit foundations to donate in support of voter education and registration efforts. One result was the Voter Education Project (VEP), which, starting in 1962, showed far-reaching results almost immediately and organized the groundwork that eventually led to the Voting Rights Act of 1965. In African American communities across the South, the VEP catalyzed existing campaigns; it paid for fuel, booked rallies, bought food for volunteers, and paid people to canvass neighborhoods. Despite this progress, powerful conservatives in Congress weaponized the federal tax code to undercut the important work of the VEP.

Though local power had long existed in the hundreds of southern towns and cities that saw organized civil rights action, the VEP was vital to converting that power into political motion. Evan Faulkenbury offers a much-needed explanation of how philanthropic foundations, outside funding, and tax policy shaped the southern black freedom movement.

A few blurbs:

"In this innovative study, Faulkenbury goes behind the scenes to elucidate the relationship between the civil rights movement and philanthropic foundations. An organizational history of the Voter Education Project and its funders, Poll Power demonstrates that as civil rights activists in countless communities across the South began to institutionalize their hard-won access to the ballot, their opponents answered with federal legislation that severely curtailed the chances of their success. This work is essential for understanding the intricacies of voter suppression efforts, both past and present."--Katherine Mellen Charron 

"This important contribution focuses on a neglected yet critical episode in the civil rights movement, explaining well how an unexpected alliance of politicians, philanthropists, and civil rights activists launched voter registration projects and achieved important victories despite segregationists in Congress and state and local governments."--Olivier Zunz

More information is available here.

-- Karen Tani

Schmitt and the Backlash to Prigg

Jeffrey M. Schmitt, University of Dayton School of Law, has posted Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania, which is to appear in the Penn State Law Review 123 (2018):

Scholars have repeatedly looked to the history of cases like Dred Scott, Brown, and Roe for guidance on whether courts should issue broad decisions on contentious issues. Some scholars contend that these cases triggered backlash that undermined the very causes the Court sought to promote, while others minimize the Court’s role in creating backlash and emphasize the decisions’ positive results. This Article contributes to this debate by providing a new account of the social and political consequences of Prigg v. Pennsylvania. The Court in Prigg rendered a broad interpretation of the Fugitive Slave Clause that was not necessary to resolve the facts of the case before it. The Court did so because the Justices sought to head off sectional conflict over fugitive slaves. Using original historical research, this Article argues that the decision had the effect, however, of helping to create a national policy on fugitive slaves that provoked an antislavery backlash in the North and strengthened the case for secession in the South. A more restrained decision from the Court could have produced a less divisive regime that provided greater legal protections for people claimed as fugitive slaves. The history of Prigg therefore suggests that courts should consider issuing limited and incremental rulings when attempting to produce social change on divisive issues.

Cummings on the Law and Social Movements Canon

Scott L. Cummings, UCLA School of Law, has posted Law and Social Movements: Reimagining the Progressive Canon, which is forthcoming in the Wisconsin Law Review (2018):

This Article examines the “progressive legal canon” — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.

How Law Helps Explain the Sit-In Movement

In my last post I explained that one of the reasons I wrote The Sit-Ins was simply because no one else had written a book on the 1960 lunch counter sit-in movement. I felt we need a book dedicated to this important moment in U.S. history. In this post I describe why I believe a legal historian can offer fresh insights on this history.

A central argument of my book is that we can’t fully understand the history of the sit-ins without placing law in the foreground. Behind the now-iconic scenes of African American college students sitting in quiet defiance at segregated lunch counters lies a series of underappreciated legal dilemmas—about the meaning of constitutional equality, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. We can’t explain why the sit-ins happened and what they achieved without paying attention to the law—a point historians have generally missed.

Here are three questions about the sit-ins that attention to the distinctive legal issues involved helps to answer.

1. Why direct-action protests?

In launching their protest campaign, the students sought to offer an alternative to litigation campaigns that had promised so much but delivered so little. 

The Supreme Court’s 1954 school desegregation decision in Brown v. Board of Education had raised expectations for change, particularly among school-age African American children. These expectations had dissolved into frustration as court-centered implementation failed to move a defiant white South to desegregate its schools. When asked why they took part in the sit-ins, students often expressed frustration with the minimal progress southern states had made toward desegregating their schools.

For the students, the courts were something to be avoided—not because they might lose in court, but because even if they won, they were skeptical that real change would follow. This was the ironic lesson that the great legal victory in Brown, which six years later had yet to produce significant results in southern schools, had taught the sit-in generation.

2. Why lunch counters?

In retrospect, lunch counters seem such a self-evident target for the black freedom struggle. Yet before February 1960, lunch counters were hardly obvious targets. Established civil rights organizations had largely avoided direct challenges to this particular facet of Jim Crow. The reason why had a lot to do with their assessment of the law.

By 1960 most southern states had either removed segregation statutes from the books or no longer enforced these laws. As a matter of law, the key question was whether a private citizen who operated an eating facility, subject to no legal requirement to segregate, could make racially discriminatory choices of whom to serve. Before the sit-ins, civil rights lawyers generally assumed the answer was yes—and they steered attention and resources elsewhere.

The relative neglect of this issue by the major civil rights groups served the student movement well. Discrimination at lunch counters was an offensive practice and no one seemed to be doing anything about it. Among the students themselves and among outside sympathizers, the sit-ins resonated in large part because it was clear that this was the students’ protest, that it was not being orchestrated by far away civil rights strategists or radical ideologues. Lawyers’ legal assessments had left public accommodations an open field for a new wave of protest activity.


3. Why was the opposition so divided?

Law also played a role in weakening the opposition to the sit-in movement.

Those opposed to the goals and tactics of the sit-ins were far from unified. They differed on the strength of their commitment to segregation, on the lengths they were willing to go to protect segregation, and the role that the police and courts should play in this contest. These divisions among southern whites were particularly consequential in the sit-in movement because of the distinctive legal issues involved.

Southern officials and local police generally wanted students arrested and prosecuted for their protest actions. Lunch counter operators, by contrast, were not anxious to send potential paying customers to jail and often hesitated to take this step. Yet, in most cases, only the operators could decide whether to press charges against sit-in protesters. Thus, those who most wanted to use the law to crack down on the students were often unable to do so, while those who least wanted to use the law were the ones who needed to start the legal process. The end result: although many protesters were arrested, the vast majority of sit-in protesters were not. The white South never unleashed its full repressive authority against the student movement.

The fact that these facilities were privately operated—the very legal factor that had initially steered civil rights lawyers away from public accommodations challenges (and that would cause them considerable difficulties in subsequent constitutional litigation on behalf of the students)—undermined efforts to mobilize in opposition to the sit-ins.

*** 

In sum, one of my goals in The Sit-Ins is to draw attention to legal issues that historians who have written about the sit-in movement often have overlooked. In my next post I’ll describe another reason I find the sit-ins such a ripe topic for legal historical inquiry: the remarkable debate over the scope of the constitutional meaning of equality the sit-in protests sparked—a debate that took place in the streets, in newspapers, in the offices of mayors, governors, and businessmen, in the courts, and in Congress.

Weekend Roundup

• As best we can make out from this story in the Providence Journal, Frederick Schroeder Jr., of Providence, who, according to his attorney, “buys boxes of documents at estate sales,” was auctioning off on eBay a docket book from Inferior Court of the Common Pleas in Providence County for the years 1746 to 1749, when “a legal history researcher at the University of Pennsylvania” alerted Rhode Island state archivist, Ashley Selima.  Bidding opened at $9.99 and had reached $960 when the state obtained an injunction halting the sale. 

• Congratulations to Samantha Barbas, Buffalo Law, for silver medaling in the History category of the 2017 Independent Publisher Book Awards, for Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford University Press).

• This week, in the Washington Post’s Made by History series, Christopher W. Schmidt, Chicago-Kent Law, published The Parkland students can transform the gun-control movement. 

• We learn from H-Law that Siobhan Barco has posted a new H-Law Podcast, a discussion with Fahad Ahmad Bishara about his A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950 (Cambridge University Press).  In earlier podcasts, Barco spoke with Daniel Sharfstein, Eric Foner, William Domnarski, Al Brophy, Sara L. Crosby, Samantha Barbas, and Mary Ziegler.

• Also on H-Law, Jay Gates, John Jay College of Criminal Justice, reviews Tom Lambert’s Law and Order in Anglo-Saxon England (Oxford University Press).

• H. T. Smith, FIU Law, recently spoke to the Dade County Bar Association on the “history of the challenges Black lawyers have faced over the years in Miami-Dade County.”

• If you’re interested in more from David Abraham, University of Miami Law, on immigration, you might try Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S., published in the German Law Journal.

• ICYMI: The New York Times thinks we should look back to Philip Kurland's review of Raoul Berger on impeachment for perspective on Cass Sunstein's latest book.  Dr. Mary Frances Berry on How History Repeats Itself: an excerpt from Dr. Berry’s new book, History Teaches Us to Resist: How Progressive Movements Have Succeeded in Challenging Times. Adam Winkler interviewed about We the Corporations on Alternet.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Cummings on Movement Lawyering

Movement Lawyering, an article by Scott L. Cummings, UCLA Law, to be published in the University of Illinois Law Review 12017(5), is now available in prepublication form.

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 non-elite 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.

Jaffe on Gandhi, Lawyers & the Court boycott

James Jaffe, University of Wisconsin, has published "Gandhi, Lawyers, and the Courts' Boycott during the Non-Cooperation Movement" in Modern Asian Studies 51:5, 1340-68.

Here's the abstract:

This article analyses the role of the legal profession and the evolution of aspects of Indian nationalist ideology during the Non-Cooperation Movement of 1920–22. Very few legal professionals responded to Gandhi's call to boycott the British courts despite significant efforts to establish alternative institutions dedicated to resolving disputes. First identified by leading legal professionals in the movement as courts of arbitration, these alternative sites of justice quickly assumed the name ‘panchayats’. Ultimately, this panchayat experiment failed due to a combination of apathy, repression, and internal opposition. However, the introduction of the panchayat into the discourse of Indian nationalism ultimately had profound effects, including the much later adoption of constitutional panchayati raj. Yet this discourse was then and remains today a contested one. This is largely a legacy of Gandhi himself, who, during the Non-Cooperation Movement, imagined the panchayat as a judicial institution based upon arbitration and mediation. Yet, after the movement's failure, he came to believe the panchayat was best suited to functioning as a unit of village governance and administration.