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Cardozo Law Review

Abstract

Drawing on a case study of marriage equality litigation, this Article examines how practice setting affects the construction of risk and the emergence of conflict in social change litigation. Although private law firms often work collaboratively with social movement organizations to pursue common goals, conflicts also emerge when movement groups oppose “risky” private litigation which could imperil the movement’s ongoing impact litigation strategies. How do attorneys in private firms and social movement organizations vary in their framing of risk in social change litigation? Under what conditions does that variation lead to conflict? The findings show that movement-based LGBT rights attorneys framed risk broadly, by emphasizing threats to their organizations’ collective and long-term impact litigation strategies. Movement attorneys looked to cautionary tales from the movement’s collective history of LGBT rights litigation against resistant courts and quick-to-override legislators to emphasize caution and threat-avoidance, to express a preference for incrementalism, and to justify efforts to thwart private litigation that moved ahead too quickly. Private attorneys, on the other hand, framed risk narrowly, as individual and short-term. Private attorneys focused on advancing the client’s immediate interests in winning by presenting all viable claims, despite objections by LGBT-movement attorneys. However, I demonstrate that these contrasting constructions of risk did not inevitably lead to conflict. Private firms with longstanding ties to LGBT legal groups extended a client-like deference to movement groups informally, enabling collaboration between firms and movement groups. In examining these mechanisms of conflict and collaboration, the Article offers new insights into dynamics that shape the effectiveness of litigation as a strategy for social change.

Keywords

Communications Law, Domestic Relations, Discrimination, Social Group Issues, Law and Race

Disciplines

Civil Rights and Discrimination | Communications Law | Law | Law and Race

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