Winning Through Losing
Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941 (2011).
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.