the politics of rights: then and now

© 2006 American Bar Foundation.

999

Law & Social Inquiry

Volume 31, Issue 4, 999–1034, Fall 2006

The Politics of Rights: Then and Now

Michael

Paris

S

TUART

A. S

CHEINGOLD

.

The Politics of Rights: Lawyers, Public Policy, and SocialChange.

Second Edition. Ann Arbor, MI: The University of MichiganPress, 2004. Pp. xi, 224. $22.95 paperback.

INTRODUCTION AND OVERVIEW

Stuart A. Scheingold’s

The Politics of Rights

was “born in the crucible”of the agonizing political conflicts of the late 1960s. So Malcolm Feeleyreminds us in his Foreword to the new edition of Scheingold’s book. Feeley’sopening calls our attention to Scheingold himself as situated at “a particulartime and place.” While Scheingold delivered his lectures on Constitutionand Court inside the University of Wisconsin’s Bascom Hall, violence eruptedoutside, as protesting students clashed with the National Guard. As hisstudents turned away from him, racing to join the battles raging out-of-doors,Scheingold “turned away from the words of the Constitution and the courtsto explore what was in the minds of the chanting students.” With this move,Feeley writes, “Scheingold relocated the study of law in American politicalscience” (2004, xi). For at least twenty years now, the watchwords ofmuch work in political science and sociolegal studies have been “lawas constitutive” and “decentering law.” Feeley suggests that, to a very largeextent, we can mark the origins of these developments with Scheingold’spath-breaking essay.

1

Michael Paris

is Substitute Assistant Professor in the Department of Government atthe John Jay College of Criminal Justice, City University of New York. The author thanksthe following people for comments, criticisms, and editorial assistance: Vince Boudreau, JulieBurch, Susan Lawrence, Jane Lee, Lynn Mather, Michael McCann, Kevin McMahon, BrianPinaire, Andy Rich, Lena Salaymeh, and Stuart Scheingold. The author can be reached [email protected].

1. Aside from Feeley’s Foreword and a new, thirty-page Preface by Scheingold, the secondedition reproduces the first exactly as it appeared in 1974.

LAW & SOCIAL INQUIRY1000

In a new Preface to the second edition, Scheingold also emphasizes bothhis initial, situated observations, as well as subsequent trajectories of socio-legal theory and research. Back then, he says, he came to think that theofficial story about law and rights no longer made much sense, and “that itwas

not

useful to think about the American love affair with law as a descrip-tion of the way in which law and politics actually work” (xvii, emphasis inoriginal). Scheingold then goes on to discuss a generation of scholarship thathe sees as “enriching and transcending [his] own understanding of rights”(xx). His new Preface offers a sketch of what he calls “the new politics ofrights.” He states that:

My

guiding vision was of a

society

that believed in the myth of rights,was sensitive to its violation, and could be readily mobilized on its behalfif only cause lawyers themselves were sufficiently shrewd not to fall underits spell. Subsequent work has provided a conceptual schema and empiricalfindings that clarify and qualify the inchoate premises and speculativeassertions of


. The net effect of more recent researchis to lend credence to, and provide an enhanced understanding of, the

constitutive

capabilities of the myth of rights while also problematizingmy largely unqualified claims about the political utility of rights. Rightsemerge as less predictable but not less politically significant. (xx–xxi)

To think of rights in mythic or ideological terms, as Scheingold did inthe 1970s, was to see them “as constitutive of, rather than simply a reflectionof, social practice.” In turn, the turn to rights as constitutive entailed “theradical decentering of law.” Scheingold then highlights four overlappingbodies of research that chart this course from his original departure toconstitutive, decentered, and highly contingent conceptions of law, rights,politics, and change.

2

In this article, I seek to honor Scheingold’s achievement by taking seri-ously Malcolm Feeley’s admonition that “the serious student must always andrepeatedly return to the original text” (xvi). My return to Scheingold’s textis driven by a concern with its most direct lineal descendent—collectivelegal mobilization theory as applied to the politics of social reform in theUnited States. I hope to offer a reading of Scheingold that will provide con-ceptual leverage for raising two neglected issues in contemporary studies oflegal mobilization: (1) the current meaning and utility of Scheingold’s mythof rights/politics of rights formulation, and (2) the way proponents ofdecentering law understand political constraints and opportunities in relationto notions of “center” and “periphery.”

2. At the end of this article, I take up what Scheingold means by “radically decenteringlaw.” His new Preface discusses this research under the following subheadings: (1) individuallegal mobilization; (2) collective legal mobilization; (3) countermobilization; and (4) causelawyering.

The Politics of Rights 1001

The remainder of this article contains four sections. Section I summarizesScheingold’s argument in


. Section II offers a criticalreading of the text. This reading begins with the puzzling notion of “myth”in Scheingold’s analysis, which in turn leads to a discussion of Scheingold’soperative conception of “ideology” and then to an elaboration of his ownideological standpoint on law, politics, and social change. Highlighting thecontours of Scheingold’s ideology will set the stage for the statement of mytwo concerns about current theory and research. After Section III offers asummary of Scheingold’s review of the current landscape of rights researchand his notion of a “new politics of rights,” Section IV takes up my twopoints. First, I argue that we should substantially revise Scheingold’s myth/politics formulation.

3

The myth of rights, in particular, is far too amorphousto be useful without modification. The relevant components of the myth/politics formulation can be retained, but they should be disaggregated in orderto foster greater conceptual precision. Second, I argue that proponents ofdecentering law might develop a better conceptual vocabulary for under-standing potential opportunities and constraints “at the center” of officiallegal doctrine and courts.

I. SCHEINGOLD’S

THE POLITICS OF RIGHTS

Scheingold set out to understand “the part that lawyers and litigationcould play in altering the course of public policy” in favor of relativelydisadvantaged groups. Getting the answer right, he argued, depended on“abandon[ing] the conventional legal perspective and replac[ing] it with apolitical approach to law and change.” He called the conventional legalperspective “the myth of rights,” and the political approach “the politics ofrights” (4–6).

Scheingold’s explication of the myth of rights drew on political theoristJudith Shklar’s (1964) earlier work on legalism.

4

Shklar examined legalismas a professional and political ideology. Legalism was “the ethical attitude

3. I hope the reader can forgive a personal note: Although I write as a relative newcomerto academic inquiry (Ph.D. 1998), I first met


(and quite by accident)when I was a law student in the early 1980s. Just then, the Critical Legal Studies critique ofrights was all the rage on the law school left. For me, a would-be antipoverty lawyer, Scheingold’sbook was a breath of fresh air, notwithstanding its basically skeptical message about law andchange. As someone who practiced for a few years, I can also testify that the book was practicallyuseful. In the years since then, I have periodically returned to


, like theproverbial old friend, and I have occasionally taught it in my classes. Criticizing the book’scentral formulations feels a bit like a sacrilegious act. But my case is one in favor of refiningour thinking about Scheingold’s terminology, and not for abandoning his insights.

4. Further citations to Shklar are from the second edition (1986). Early on, Scheingoldacknowledged that the “entire first section” of


—that is, Chapters 2 through5—relied heavily on Shklar (2004 13, note 1).


that holds moral conduct to be a matter of rule following, and moral rela-tionships to consist of duties and rights determined by rules.” Legalism was“simply one morality among others.” Legalism could take the form of anindividual code of conduct, a social ethos (and one with many virtues, Shklarthought), or a political ideology (Shklar’s topic). Legalism, then, was anumbrella term for a way of thinking about law and its relationships to morality,politics, and history. Legalists tended “to isolate law completely from thesocial contexts in which it exists. Law is endowed with its own discrete,integral history, its own ‘science,’ and its own values, which are treated asa single ‘block’ sealed off from general social history, from social theory, frompolitics and morality” (1986, 1–3). Legalists believed “that law is not onlyseparate from political life but a mode of social action superior to mere politics”(8). They associated law with morality and principle, and politics with mereself-interest and expediency. Shklar’s central referents for legalism were moraland political theory.

Legalism

was only secondarily about social practices andconsequences in the world.

5

Scheingold retained Shklar’s legalism as part of what he meant by “themyth of rights.” But for him the myth of rights was a much broader term.It included not only beliefs about morality and politics tied to and centeredon law, but also more specific beliefs about American constitutionalism andconstitutional history; about the relationship between law and politics inthe United States; about the nature and power of American courts as insti-tutions; and about the actual causal dynamics of social and political change.“Ideologist” and “strategists” embracing the myth of rights were legalists inthat they tended to see things legal as things apart from and over and abovepolitics—as a morally superior “ ‘block’ sealed off,” as Shklar so nicely put it.

In Part I of his book, Scheingold explicated both the content and appealof the myth of rights. He did so by approaching a range of source materialsin much the same way that an anthropologist would.

5. Parenthetically, we can note that Shklar’s conception of ideology was liberal, non-pejorative, and disarmingly simple. Ideology ran back to individuals, albeit individuals situatedin social milieus. An ideology was simply some specific set of values, beliefs, and preferences,held by some specified individual or group, about something in particular. Shared values andbeliefs would generally arise from shared contexts and experiences. Ideology thus conceivedwas an inevitable fact of life for all human beings; it was the natural result of our “emotion-laden and partial response to the world and to others in it” and it gave “any thinking persona sense of direction” (1986, 4). This view of ideology implied that the observer/critic shouldplace her ideological cards on the table. Shklar readily acknowledged that her critique oflegalism proceeded from what she then called a “liberalism of the permanent minority,” a viewthat she and her many illustrious students later called “the liberalism of fear” (see, for example,Yack, ed. 1996). For Shklar, what legalism in all its forms sought to deny was a basic anddesirable feature of modernity that she called “social diversity.” “No agreement” on ultimateends, and therefore often “no rules,” was a central feature of modern existence, and politicswas best conceived as the habits of mind and institutionalized practices through which humanbeings might yet learn to cope with “no agreement” (1986, 4–5). Compare Schuck (2003).


He first grappled with the cultural artifacts produced by some prominent“law writers” like Alexander Bickel, Edward Levi, and Lon Fuller. Here,Scheingold said, he wanted to extract the highly stylized and refined version,or the ideological core, of the myth. The law writers’ view rested on “threekey ideas.” First, the Constitution provides “the foundation for a just politicalorder” (2004, 23). It lays down virtually timeless principles to which lawyersand judges may resort in order to restrain the erratic impulses of democracy.Second, and concomitantly, the institutional independence of courts securedby the Constitution and the specialized arts of legal reasoning allowed wisejudges to strike highly functional balances between continuity and changein constitutional doctrines and the overall political order. Third, accordingto the myth of rights, law and courts are generally “rationalizing” forces inpolitics, in the good sense of the word; the legalization of conflicts and courts’participation in governance made our politics more coherent, intelligible,and rational. It was “intellectual rather than financial or material resources”that mattered in court (36). Scheingold noted that while we might be tempted“to scoff at the sweeping claims of the myth of rights,” it would be a gravemistake to do so, for “the success of an ideology does not depend . . . on theobjective accuracy of the theory it presents but on the response it evokes”(38).

Scheingold then went on to explore his claim that the subjective appealof the myth of rights ran very deep in American society. He argued thatthe myth provided a basic grammar for approaches to political problems acrossa range of social locations and institutions. Americans, it seemed, habituallyimputed or invented rules to govern many relationships and situations, andthis propensity had certain entirely overlooked consequences.

6

The myth ofrights appealed to a society and culture in which people took a dim viewof human nature and favored private-over public-regarding action. The mythof rights took people as “they really are” and provided assurance that theelite business of government would be well ordered. In such a society, the“inner morality” of legal proceduralism and rule-following was also “ethicallyattractive,” for it could keep us “safe from known dangers.”

7

In the final prong of his expedition into the myth of rights, Scheingoldturned directly to existing studies of political socialization and political beliefsabout law in society. He did not claim that Americans uniformly believed

6. It is interesting that Scheingold chose to begin a discussion of “the call of the law”and “the rhetoric of rights” with an “allegory” about conflicts then raging in the University,a setting then seemingly far removed from “the center” of traditional studies of law and courts(2004, 41–46). His portrayal of the cultural operation of legal ideas and legalistic proceduresin the handling and dissipating campus protests is incisive. For a narrative account of conflictsat Columbia University in the late 1960s that supports this view, see Avorn et al (1969).

7. Scheingold quoted Hartz: “Law has flourished on the corpse of philosophy in America,for the settlement of the ultimate moral question is the end of speculation upon it.” The mythof rights happily treated ultimate moral questions as “out of reach” (see xviii, 56–57, citingHartz 1955, 10).


in the myth of rights, but only that rights generally had great political salienceand resonance. The meaning of rights likely depended heavily on enduringsocial divisions like race and class and also on particular social contexts andpolicy domains. But the myth of rights did at least provide “shared idealsfor the great majority” (78–79, and, generally, Chapter 5).

When, in Part II, Scheingold turned to “the politics of rights,” he shiftedhis focus considerably, moving from the content and cultural resonance ofthe myth generally to narrower questions about the utility of rights claims,litigation, and court decisions for would-be change agents—that is, to thepotential instrumental use of the myth. This narrower focus takes us backto a key definition of the myth of rights that Scheingold offered early onin the book:

Legal frames of reference tunnel the vision of both activists and analystsleading to an oversimplified approach to a complex social process—anapproach that grossly exaggerates the role that lawyers and litigationcan play in a strategy for change. The assumption is that litigation canevoke a declaration of rights from courts; that it can, further, be usedto assure the realization of these rights; and finally, that realization istantamount to meaningful change. The

myth of rights

is, in other words,premised on a direct linking of litigation, rights, and remedies with socialchange. (5)

This is a rendition of the myth of rights cued to Scheingold’s practical inten-tions and immediate social context, a context marked by the so-called “rightsrevolution” and the prevalence and stature of social reform litigation. Ofcourse, the “proto-type” for the operation of the myth of rights in this contextwas the NAACP’s legal strategy attacking Jim Crow. In the picture of thiseffort that crystallized in the late 1960s, lawyers and judges rode in on thewhite horses.

8

Scheingold audaciously called this reverie into question bylabeling it “myth.”

9

Drawing on a range of sources from political science, Scheingoldgave several reasons in support of his claim that, in this form, the myth of

8. This view saw social reform litigation as far-sighted social engineering pursued throughcarefully planned test cases. Litigation was a carefully stage-managed affair in which lawyersselected plaintiffs to stand in for the cause, controlled the sequence and timing of cases, mobi-lized elite legal opinion and social scientific research, and chalked up one stunning legal victoryafter another. This image of the NAACP prototype then served as a template for many othergroup projects in which reformers relied heavily on law and courts. For discussions of theNAACP “proto-type of planned, affirmative social reform litigation,” see Olson (1981, 1984);Tushnet (1987); and Wasby (1995).

9. Of course, Scheingold was not the only critical observer who started having secondthoughts about social reform litigation in the early 1970s. Work by Bellow (1970), Galanter(1974), and Bell (1976) all pointed in the same direction. But it was Scheingold’s book thatset the agenda for a generation of research on the topic. McCann has made this point aboutthe rise of a new skepticism about reform litigation in the 1970s (1992, 716).


rights was in fact myth. He argued that there were an interlocking set ofconstraints on the effectiveness of litigation-driven change, constraintsthat the myth of rights downplayed or denied. The current familiarityof each of the following propositions testifies to the prescience of Scheingold’sanalysis.

First, the procedural forms and substantive content of the Constitutionand laws themselves, as interpreted doctrine, were broadly consistent withAmerican liberal values. Individualism, faith in the market economy, anda deep fear of government intervention, all found embodiment in law. Thus,there were limits on the kinds of arguments that could be made, or evenimagined, within law in the first place (see 18–19, 94, 97–107, and, generally,Chapter 7). Second, bench and bar were powerfully socialized into legalism.Lawyers’ specialized language, characteristic habits of mind, and cultivatedsense of “professional responsibility” set them apart from the laity. In socialreform efforts, it seemed that many lawyers took the myth of rights to bean accurate description of law, politics, and change. Like their mainstreamcolleagues, many reform lawyers seemed to distrust protest and other dem-ocratic forms of politics, and to prefer an exclusive focus on litigation. Theyalso seemed to have “exaggerated expectations about the political impactof judicial rulings” (95; see also 166, 173–77).

Third, the myth of rights in the context of social change efforts alsoneglected the potential opportunity costs of litigation. Litigation costs lotsof time and money, and the legal process is painfully slow. Events in theworld could easily overtake and render moot what was going on in the courts.Fourth, an exclusive reliance on litigation also meant that change agentswere dependent on the will, powers, and technical capacities of courts. Asinstitutions, courts were nowhere near as insulated from politics or as powerfulas the myth of rights suggested. Thus, judicial victories might provide onlysymbolic reassurance without changing much of anything on the ground(86–90, and, generally, Chapter 8).

Scheingold’s review of social reform litigation through the early 1970sled him to express “serious doubts about the capabilities of legal and con-stitutional processes for neutralizing power relationships.” The “authoritativedeclaration of rights” was “usually only the beginning of a political processwhere power relationships loom rather large” (85). However, if the myth ofrights, as it operated in social reform efforts, implied pessimism about theprospects for redistributive change through litigation, Scheingold’s “politicsof rights” perspective provided some grounds for guarded optimism (95).Scheingold described the politics of rights as “a frame of reference . . . forinvestigating the interplay between ideology and political action” (9). It was“a term to describe the forms of political activity made possible by the pres-ence of rights in American society.” Understanding the politics of rightswould make it “possible to realistically assess the political significance of themyth of rights” (83).


Scheingold was perhaps the first to develop a systematic argument forthe proposition that litigation and court decisions could be used as part ofa broader strategy to organize and mobilize political action. Things legal couldbe a vital part of political processes resulting in a redistribution of politicalpower. In turn, the redistribution of political power could bring about changesin policies and behaviors. “Instead of thinking of judicially asserted rightsas accomplished social facts or moral imperatives,” Scheingold wrote, “theymust be thought of, on one hand, as authoritatively articulated goals of publicpolicy and, on the other, as political resources of unknown value in the handsof those who want to alter the course of public policy” (6–7).

Scheingold highlighted two intertwined factors as crucial to the politicsof rights. First, the reality of the myth as social fact meant that law andcourts might provide change agents with opportunities for the broader legit-imation of grievances. Second, and more importantly, litigation and courtdecisions could be catalysts for the political organization and mobilizationof relatively powerless groups. The historical record to that point revealedthat legal challenges might help activate citizens, cue expectations aboutthe possibility of winning, and help bring new groups and coalitions intobeing. The politics of rights could “in this fashion build support for intereststhat have been excluded from existing allocations of values and thus promotea realignment of political forces” (131, and, generally, Chapter 9). That mostof these positive, indirect effects had been mostly the “unintended” and some-times even “unwelcome” consequences of the activities of lawyers and liti-gating groups only reinforced Scheingold’s sense that “the problem with thelitigative approach may be less with the strategy than with the strategists”(95–96). In a word, if only the lawyers and litigating groups became moreself-conscious about both the limitations of legal strategies and the vast butmostly untapped potential of a more realistic, political approach, then thingslegal could be engines of real change.

10

In Part III, Scheingold again narrowed his focus a bit, turning now tothe legal profession generally and to the activist bar in particular. He

10. Scheingold mentioned the unintended consequences of legalistic reform only oncein the book (95). In two later retrospective essays on


, he focused morespecifically on such consequences, both in the form of opening up space for egalitarian mobi-lization, and in the form of the positive and negative effects of countermobilizations and anexpanded scope of political conflict (1981, 1989). Scheingold’s “politics of rights” opened upmany other questions explored in subsequent research, including: Why did individuals or groupsseeking change turn to rights claiming and litigation in the first place? What was the exactnature of the attorney-client or attorney-constituent relationship in these efforts, and howwould the contours of that relationship matter? Could rights claiming and litigation reallyfoster political organization and mobilization? If so, under what conditions? How importantwas judicial receptivity in these more general processes? Would favorable court decisions benecessary, but not by themselves sufficient? Would losing in court sometimes have positiveeffects for political mobilization? See Handler (1978), Olson (1984), Milner (1986), Tushnet(1987), Scheingold (1989), Rosenberg (1991), McCann (1994), Silverstein (1996), McCannand Silverstein (1998), Schultz, ed. (1998), and Scheingold and Sarat, eds. (1998, 2001).


distinguished three forms of activist lawyering. The “traditional activists,”like ACLU or NAACP lawyers, constituted the bulk of the activist bar, andthey were “heavily caught up in the myth of rights.” These lawyers believedthat the Supreme Court’s authoritative declarations of rights were powerful“moral imperatives” that were virtually self-executing and, therefore, they“invested heavily in leading case tactics . . .” (173). Moreover, they had inter-nalized the profession’s conceptions of lawyerly “professionalism” (174).“Radical activists” like those associated with the National Lawyers’ Guild orthe black liberation movement, by contrast, seemed to embrace an ideologicalposition that Scheingold characterized as “counter-myth;” that is, a view thatsimply “equated law with repression” (3). They therefore tended to see theirown roles as marginal. They were mainly involved in defending radical activistsor society’s most downtrodden from state repression (179–81). In certain“innovative” lawyer activists, such as Gary Bellow or Ralph Nader, Schein-gold saw a glimmer of hope for the politics of rights. But while these lawyersseemed to grasp the potential power of an instrumental, political approachto litigation, the record also revealed that external constraints would makeit exceeding difficult to practice a politics of rights.

11

On the whole, Schein-gold wrote, activist lawyers were “likely to resist the message of mobilization,”for “their training and professional experience predispose[d] them to thinkabout litigation more conventionally, to internalize the myth of rights” (151,and Chapters 10 and 11). Only time and particular contexts would tell.

Summing up his overall point, Scheingold concluded that, contrary tothe myth of rights, “law and politics are inextricably intertwined and in thiscombination politics is the senior partner” (203–04). From his political per-spective, rights claims, litigation, and courts offered both opportunities andconstraints. The real opportunities had generally been overlooked. The hardwork involved first recognizing the real opportunities and then strugglingwith the complexities of the constraints. While Scheingold had very clearlyput the accent on the limitations (211), he also argued that in many contexts,it could be a fatal mistake to forego the opportunity side of a politics ofrights. His analysis, he said, “underscores the crucial importance of thinkingabout legal tactics in combination with other modes of political action” (85).

II.

THE POLITICS OF RIGHTS

REVISITED: MYTH AND IDEOLOGY IN SCHEINGOLD

What should we make of this argument now? As noted at the outset,both Feeley and Scheingold highlight the strong intimations of law as

11. In his discussion of innovative activist lawyers, Scheingold cited Bellow’s 1970

YaleLaw Journal

piece several times (190–94). Scheingold’s main illustration of how external polit-ical constraints, along with “professional norms,” would also limit the politics of rights wasBellow’s home turf of anti-poverty lawyering and the Legal Services Program.


constitutive and decentering law in


. While I agree withthis assessment, I want to pursue a different line of inquiry that begins witha focus on the puzzling notion of “myth” in Scheingold’s analysis and endswith an account of his ideological orientation toward law, politics, and socialchange.

This is an appropriate place for an important caveat. In

The Politics ofRights

, Scheingold intentionally wrote in large, bold strokes. He stated thathe was trying to present “a big picture,” and that he wished his book to be“taken as a point of departure—one that raises questions rather than answersthem” (1). It would not make sense to criticize this classic work as if it werewritten today. Reading the text closely for nuances and meaning makes senseonly if it gets us to some observations that might prove useful for under-standing current research with roots in Scheingold.

The Myth of Rights: Some Conceptual Difficulties

We can note two kinds of basic empirical claims in Scheingold’s analysis.First, Scheingold made a primary claim about the truth of the matter—thatis, about “the way law and politics actually work” in social change processes.The key elements of this claim—for example, “court decisions are rarely self-executing”—were highly plausible and, even then, well supported by severalbodies of empirical research. Second, Scheingold made claims about

theconsciousness and beliefs

of various social actors about the truth of the matter.Social actors believed in the myth of rights as an accurate description oflaw and politics, and therefore they subscribed to an oversimplified, distortedset of propositions. These claims too were plausible, even though there wasmuch less empirical evidence for them.

12

It is the latter sort of claims aboutthe consciousness and beliefs of social actors that will concern us here.

What did Scheingold mean when he wrote that actors were immersedin or beguiled by the ideology he called the myth of rights? His use of mythgives rise to some uncertainty. We have seen that Scheingold’s myth of rightswas an amalgam of value commitments and several related empirical propo-sitions. It included liberal political values and goals; a legalistic conceptionof law and politics and a sanguine view of the powers of courts; and a moregeneral misunderstanding of how change occurs. The amorphousness of thisconstruct sometimes makes it hard to tell what the narrowed or “tunneled”vision is about (5). Is it about strategic questions only (how to get from Ato a given and agreed upon B), or political values and goals (the B), or bothof these things in combination? It is one thing to evaluate the effectiveness

12. For example, Scheingold did not actually interview actors or otherwise engaged indialogue with them. Following Scheingold’s lead, much subsequent research did go on to exploreactors’ actual consciousness and beliefs with respect to the myth of rights/politics of rights distinction.


of strategic action in light of values and goals that actors claim for themselvesand claim to be pursuing, whether the observer endorses, condemns, or pro-fesses indifference to those values and goals. It is another thing to objectto an actor’s values and goals on normative grounds.

An examination of Scheingold’s language reveals that the main thrustof his claims that actors believed in the myth of rights had to do with theirbeliefs about law, politics, and social change.

13

The proposition on the surfaceis that social actors have a distorted view of what is essentially a strategicquestion. These claims were certainly plausible. It is likely that reform-mindedlawyers especially had a beclouded view of law, politics, and change and thatthey therefore expected things from litigation that they would not get withoutbroader political struggles. There is a submerged question that lurks here,however, and that is whether Scheingold and the social actors he criticizedreally did agree about values and goals in the first place. Scheingold’s expli-cation of the myth of rights as an ideology mainly fostering a distorted pictureof law, politics, and change tends to avoid this underlying issue of potentialnormative disagreement across the observer/observed divide.

14

13. The myth of rights “tunnel[ed] the vision of both activists and analysts,” for it pre-sumed a direct line from litigation, to rights, to legal remedies, to social change (5). The problemwith the “litigative approach,” Scheingold said, “may be less with the strategy than with thestrategists.” The strategists were “misled by the myth of rights toward a fundamental mis-understanding of

the politics of change

and, more specifically, toward exaggerated expectations aboutthe impact of judicial decisions” (95, emphasis in original). “Conventional legal tactics basedon the myth of rights,” he wrote, “tend to be naive

in extremis

. Power cannot be purged frompolitics by a legalization of political processes.” Such tactics were “likely to do little morethan divert attention away from concrete payoffs to symbolic gratifications” (214).

14. The ambiguity between purely strategic questions about social change processes, onone hand, and ideological disagreement across the observer/observed divide, on the other,can be seen in the following quote. After noting some minor ways in which his “traditionalactivist” lawyers departed from mainstream professional norms of conduct, Scheingold statedthat they nevertheless remained:

wedded in

goals and methods

to constitutional values and as a consequence engage in aform of political action in which means and ends tend to get equal weighting. The resultis behavior which, at least in the short run, may be counterproductive. As a consequence,they often seem to their detractors like the proverbial liberals who know what must bedone but whose principles prevent them from doing it (177, emphasis added). Thus, again, the emphasis on “counterproductive” behavior implies the ineffectiveness

of strategic action in light of some statement of goals. Scheingold was clearly saying that anoverreliance on litigation and courts would be counterproductive in light of values and goals thatactors claimed to be pursuing. School desegregation comes to mind as the clear case. But, asthis quote also shows, Scheingold’s own disagreement with, or, more precisely, ambivalence about,liberal values seems also to be in play. Here, he might also be saying that these actors’ values andgoals are misguided as well (a different claim). Obviously, such normative disagreements might shapeassessments of strategic effectiveness and outcomes. For example, the characterization ofanother’s strategic action as “naive” makes sense only in light of a statement of what the actor thoughtshe or he was trying to achieve. Similarly, terms like “concrete payoffs” and “symbolic gratifications”make sense only in relation to specified values and goals. If the observer and the actor in fact disagreeabout values and goals, then they may well understand and characterize outcomes differently.


Admittedly, values and goals, perceptions of how the world works, andjudgments about strategic actions, do often come bundled, and they do inter-act and evolve over time, each in relation to the others, and in relation tochanging contexts for action. Scheingold says as much in several places inthe book. But the interpenetration of facts and values and the complexitiesof social action do not defeat the present claim that we should achieve moreconceptual precision if it can be had.

These distinctions—disaggregating the myth of rights with respect tosocial actors’ beliefs, and noting the possibility of normative disagreementacross the observer/observed divide—are useful now, for two reasons. First,to the extent that the amorphousness of the myth of rights produces a lackof clarity about the nature of the actors’ beliefs (what the belief is about),it will hinder the search for empirical evidence needed to support or refutean observer’s claim about that belief. Second, the presentation of the mythof rights as a linked set of value commitments and empirical propositionsmight lead observers or readers to assume that all of its components necessarilycome wrapped up in one package. Observations focused on any one com-ponent might then be taken to stand in for proof of the whole. In SectionIV, I will suggest that it helps to remember that political values and goalsare one thing, and strategic questions and choices (including the forms andlocations of political action), are another. While ideologies and strategiesdo tend to be related, it isn’t necessarily so.

Scheingold’s Moral Ambivalence About the Myth of Rights

The conceptual difficulties we have encountered in Scheingold’s mythof rights seem to have their roots in Scheingold’s ambivalence about thisideology, considered solely as a set of moral aspirations. After all, a principledliberal could acknowledge the truth of Scheingold’s critique of the myth ofrights as an inaccurate account of the way in which law and politics actuallywork and yet still maintain that the “myth” has value as an ideal horizonagainst which we can measure our imperfect institutions and practices. ButScheingold was highly critical of the myth of rights, even if we take it asmoral aspiration only. Like Shklar, he was troubled by legalism’s pretenseof neutrality and its repression of open ideological differences and conflicts.Like Shklar, he too found this ideology “petty and confining” in manyways. But, more importantly, Scheingold’s heart was with egalitarianismand participatory democracy. He put great faith in the transformativepotential of political mobilization and agonistic conflicts. As a moralvision, the myth of rights set up law as regulatory realm superior to merepolitics. The myth of rights distrusted vigorous democratic politics, and soScheingold naturally distrusted it. In Scheingold’s estimation, the distor-tions of the myth of rights went beyond the mere gap between valued


ideals and imperfect reality to the ideological legitimation of an unjuststatus quo.

15

Yet, in several places in his book, Scheingold also acknowledged theethical value of the myth of rights as moral aspiration, quite apart from thestrategic value he found in its existence and availability for use. The deepyearnings he perceived in American society—for example, for rights to existas stable absolutes, or for law to guide and order politics—were themselvesfacts with ethical significance. So Scheingold also seemed to want to givethe moral aspirations at the core of the broader ideology their due.

16

Scheingold’s ambivalence about the myth of rights as moral aspirationreflects an even more general dualism in his work going to his very conceptionof ideology. If Scheingold argued that the myth of rights was an “ideology,”then what was his conception of this essentially contested concept?

Scheingold’s Conception of Ideology

Scheingold’s conception of ideology is dualistic. On one hand, he explic-itly endorsed and claimed to be using a nonpejorative conception of ideology.On the other hand, he less overtly embraced a critical, pejorative conception.The nonpejorative face of ideology in Scheingold is the face of Scheingoldas cultural anthropologist. The pejorative face of ideology in Scheingold isthe face of Scheingold as radical political critic. It is the latter, critical sideof ideology in Scheingold that beckons us to look more closely at Scheingold’sown ideological standpoint.

15. In response to our liberal’s construal of the myth of rights as valuable moral aspiration,Scheingold would also add, as he stated in the book, that he was pursuing something far moreelusive and mysterious about American culture than any happy acknowledgment of a gapbetween ideals and reality would allow. Scheingold did not think it sufficient to stop withsuch a gap, and this point takes us to the edge of the new territories


didso much to open up. In an evocative political act, he labeled the symbolic dimensions ofliberal law and rights “myth.” By calling the official story myth, he pointed others toward alived cultural reality that operated also at the level of powerful emotions and attachments, areality that would most assuredly take on different meanings in different contexts, a realitythat could be reinterpreted and used instrumentally, as myths often are, or, alternatively, thatcould “beguile” minds and shape thought, as myths often do. In addition, Scheingold’s use of“myth” also evoked an intellectual tradition on which he relied a great deal in the early 1970s,but which does not appear in his new Preface and or much in current sociolegal studies—namely, the tradition of realist-informed, “political” perspectives on courts as political, policy-making institutions. We find talk of legitimating “judicial myths” of neutrality and law’sseparation from politics going back to Arnold (1935), and continuing on in political sciencefrom Pritchett (1948), to McCloskey (1960), to Shapiro (1964).

16. Scheingold’s moral ambivalence about the myth of rights comes across most forcefullyat the very end of the book when he recommends a politics of rights, even though it mustgrapple with the master’s legal tools, precisely because such an approach would help fostermovements for change that would “keep faith” with liberalism’s core ideals.


Scheingold’s explicitly embraced, nonpejorative conception of ideologycan be traced back to the influence of Shklar and Geertz on his thinking.Like Shklar, Scheingold held that ideology was an inevitable fact of life, a“natural result of our emotion-laden and partial response to the world”(Shklar 1986, 4). Early on, Scheingold cited Geertz’s formulation renderingideology quite harmlessly as culturally-conditioned beliefs, or as “a symbolicframework in terms of which to formulate, think about, and react to politicalproblems.” Such frameworks “combine normative, descriptive and horatoryelements.” The myth of rights as an ideology was an “integrated set of asser-tions about the nature and workings of American politics, intimately linkedto legal processes and cherished values” (Scheingold 2004, 14, note 2, quotingGeertz 1964).

Like Shklar, then, Scheingold could not very well exempt himself fromthe ambit of ideology. He did not claim to explicate and criticize the mythof rights from some privileged ground of Truth. Rather, he acknowledgedthat he was criticizing it from a particular “frame of reference” or “perspec-tive,” to which he attached the adjective “political” (see, e.g., 23–24, 83).

17

Still, it is interesting that Scheingold never did quite bring himself actuallyto use the word “ideology” when it came to his own “politics of rights” view.That view was always simply just a “political perspective” or “frame ofreference.” This use of language provides us with a clue that there is moreto Scheingold’s conception of ideology than the explicitly endorsed non-pejorative meaning.

Scheingold’s conception of ideology simultaneously embraced a morecritical connotation. Here, perhaps, the debt runs back not to Shklar butto Murray Edelman (1964). Now the label ideology takes on a decidedlypejorative cast, in a particular noteworthy sense. Shklar certainly did notrefrain from stinging criticisms of legalism and legalists. Legalism was anobfuscating ideology. Her goal was the correction of harmful misconceptionsarising out of, or operative within, certain institutional arrangements, whichinstitutional arrangements she viewed as basically sound. But Scheingolddid not accept society’s basic institutional arrangements as basically sound.His own commitments identify him as a more thoroughgoing critic seekingengagement with those whose projects might result in significant socialchange. Better understanding and reflection about the role of things legalin such projects was, after all, the whole point. The claim in Scheingoldabout “ideology” is not just that a vision is beclouded—that it is partial,incomplete, and misleading in certain important ways, as all ideologies are—

but also that

both the content of the vision and its characteristic forms ofthought and action help constitute and reinforce unequal power relationships

17. Further echoing Shklar, Scheingold added that “[a]ll scholarship develops withinpremises that focus energies and provide distinctive points of view; law writers are neithermore or less vulnerable on these grounds than political scientists or other scholars” (23–24).


and therefore are systematically implicated in the maintenance of an unjuststatus quo. Ideology in this sense must be exposed and debunked in orderto aid the process of moving from one state of affairs to another.

18

When an observer implicitly endorses a critical conception of ideology,it makes sense to examine her or his own ideological standpoint or grounds.Scheingold acknowledged his grounds as an alternative and better perspectivethat he called the politics of rights. I think that we can sift out a broaderstatement of his ideological position on law, politics, and change, and thatthere are good reasons to do so. I will call this standpoint an “egalitarian,democratic” one.

19

A brief explication of Scheingold’s standpoint will helpclarify my first point about the need to disaggregate the myth of rights. Itwill also show that much the same normative outlook animates currentresearch on rights, legal mobilization, and cause lawyering, albeit with a sig-nificant modification in how law is conceptualized. I will locate decenteringlaw within this broader ideological framework.

Scheingold’s Egalitarian Standpoint

My account of Scheingold’s ideological standpoint focuses on threerelated features of it: (1) his bedrock political commitments and related senseof desirable goals and outcomes; (2) his intuitions or working hypothesesabout the forms of political action required to bring about desirable change;and (3) his conception of law and its relationship to politics.

(1) Politically, Scheingold positioned himself as an egalitarian, “smalld” democrat. He situated himself between two camps. On one side, therewere liberal reformers and “traditional activist lawyers” who were basicallysatisfied with existing political and economic arrangements. These liberalsmight be involved in reformist efforts to protect negative liberties or toincrease mobility opportunities within existing hierarchies, but they did notchallenge the capitalist welfare state. On the other side, there were militantradicals in the “liberation movements” and “radical activist lawyers” who

18. For example, Scheingold wrote that “[l]aws are delivered to us by the dominantpolitical coalition as are the judges and other officials responsible for interpretation and imple-mentation. As a consequence our rights are always at risk in the political arena and thereforeprovide very little independent leverage. Law thus serves the status quo in a kind of dualcapacity. Legal processes are closely linked to the dominant configurations of power. At thesame time, in its ideological incarnation, the law induces acquiescence in the established orderby suggesting that the political system is beneficent and adaptable” (204).

19. The term “egalitarian, democratic” ideology is perhaps less than ideal, but some suchterm is needed. In selecting the words egalitarian and democratic, I take my cue from Schein-gold’s recent commentary on cause lawyering (2001) and his new Preface (2004). Since myown conception of ideology is liberal and nonpejorative, the mere act of using the word “ide-ology” to characterize Scheingold’s standpoint on law, politics, and change implies no criticismof it. I will argue that certain questions are being overlooked in current research as a resultof this particular ideological view.


rejected existing political and economic arrangements and desperately soughtto rupture them. Scheingold stated that the views of the traditional liberalsand militant radicals about law and politics amounted to “myth and coun-termyth” (2004, 3).

20

Scheingold wrote against an unjust status quo in that he saw a needfor basic structural changes. But he parted company with the radicals in hisunderstanding of American society and political culture (one might say thathe had a much better understanding of “material conditions” than they did),his related theory about how valuable change might actually occur, and,finally, his own deep ambivalence about the role of liberal values in projectsseeking social transformation.

21

These political commitments and his schooledintuitions about uncertain processes of change stood behind his advocacyof the self-conscious, instrumental use of the myth of rights.

(2) Scheingold’s theory of change placed great faith in the transforma-tive potential of active, democratic participation in political conflicts. Thisis why, in his view, legal strategies must be ancillary to broader, bottom-up political mobilization and struggle. Social movement forms and actionsare essential for two reasons thought to be linked in a causal chain. First,such forms of organization and action provide the best means for bringingordinary people into politics and making politics “concrete,” as opposed to“abstract” and “remote.” Thus, they are the best means for creating possi-bilities for the disconnected or disaffected to have life-transforming politicalexperiences.

22

Second, in relation to entrenched power relationships andinstitutions, social movement forms and actions are the most potent causalforce in actually bringing about those changes deemed desirable. Thus, theutility of things legal for change projects should be judged by the overridingcriteria of political mobilization and the redistribution of raw political power(see 8–9, 85, and, generally, Chapter 9).

(3) The final element of Scheingold’s ideological standpoint concernshis theoretical perspective on law and its relationship to politics. Scheingold’sconceptualization drew heavily on American legal realism and the diffusionof the realist outlook through political jurisprudence in political science. Hisreliance on the realist tradition in the early 1970s could hardly have been

20. Scheingold’s identification of two camps on either side of his own position recurselsewhere in the book (see Chapter 11, especially 171, and Epilogue, especially 215–17).

21. As we have seen, at the end the book Scheingold expressed his approval of liberalism’sreal achievements. He suggested that viable movements for change would have to keep in touchwith both liberal ideals and lived realities in which rights and rights consciousness loomed large.Here Scheingold drew on a then recent essay by Barrington Moore in which Moore soughtto defend “liberalism with a difference,” a “liberalism that sought to live up to its rhetoric,”that sought to “preserve and extend the achievements that it does have to its credit” (218–19).

22. In this contrast between “remoteness” and concrete experiences, we again see theinfluence Murray Edelman’s work on Scheingold. Here, Scheingold extrapolates from Edelman’sanalysis to an insight about valued forms of political action. See Ewick and Sarat (2004) foran intriguing discussion of Edelman’s ideas and their influence on sociolegal studies.


otherwise, since at that time all of the resources for critical reflection onhis topic were realist-informed.

23

With hindsight, we can note, as many scholarshave noted, that this outlook downplays the specific content and characterof legal claims and arguments. Thus, in Scheingold’s original text, we findvirtually no attention to the substantive content or rhetorical qualities oflegal arguments or judicial opinions. The possibility that law, in its officialdoctrinal sense, might play a significant shaping or framing role in politicalconflicts was outside of a frame of reference grounded in legal realist premisesabout law and politics. On Scheingold’s realist view, the legal terrain wasmostly a reflection of dominant interests and power relations. If the mythof rights set up law over politics, Scheingold’s politics of rights defined politicsrealistically and instrumentally, and then set it up over law.

Yet, as we have already noted, Scheingold’s notion of the politics ofrights pointed to the social meaning and operation of rights in society andin practice. To really understand how a politics of rights might work, onewould have to turn to the would-be change agents, to what they actuallythought and did, and to the actual and very complicated dynamics law, theconstruction of cultural meanings, and social change processes.

Taken together, these three dimensions of Scheingold’s standpoint—his political commitments and sense of valuable goals, his conception of socialmovement forms as the most desirable and effective forms of political action,and his mainly realistic conception of law and politics—comprise hisegalitarian, democratic view.

To a very large extent, this same view animates the trajectory of theoryand research following in Scheingold’s wake. It certainly stands behind cur-rent work on collective legal mobilization, cause lawyering, and the politicsof reform in the United States. What has changed between then and nowis the theoretical conception of law and its relationship to culture and politics.The new conception is most often characterized as “constitutive,” but is per-haps best called “culturalist,” viewing law as seamlessly part of the socialconstruction of identities, understandings, problem definitions, and the like.However, in the current literature Scheingold sketches in his new Preface,observers’ value commitments and working hypotheses about how desirablechanges can be brought about remain much the same.

III. SCHEINGOLD’S “NEW POLITICS OF RIGHTS”

In his new Preface, Scheingold makes no attempt to reckon up the full

23. I should like to be understood in this context as speaking plausibly about generaland uncontroversial propositions about what legal realism amounted to. Rather than give suchan account, I will simply point to some widely recognized authoritative sources. See G. E. White(1972, 1973); Purcell (1973, Chapters 5 and 9); and Stumpf (1998, Chapters 1 and 2).


legacy of his book.

24

Rather, he uses


as a baseline againstwhich to sketch several bodies of research that engage with the book’s centralthemes.

Scheingold specifies four overlapping strands of work, each of whichprovides insights for his sense of a new politics of rights: (1) individual legalmobilization—rights in everyday consciousness; (2) collective legal mobili-zation—rights as an egalitarian resource; (3) countermobilization—compet-ing myths and contested meanings; and (4) cause lawyering—from litigationto politicization. We can combine these four strands into two groups cor-responding to the two broad paths of research in the wake of Scheingold’soriginal argument. One group (strands 1 and 3) is concerned with the mythof rights

in

society, and the other (strands 2 and 4) with the politics of rightsin practice.

The main point that Scheingold makes about rights consciousness orlegal consciousness in society (strands 1 and 3) is that research has demon-strated vastly greater contingencies and complexities than he had imaginedin the early 1970s. Whereas he saw the resonance of rights claims in societyas mostly positive, “a substantial body of research has revealed a multiplicityof varied and contradictory responses to rights . . . [L]egal consciounsness andrights consciousness vary from individual to individual, group to group, timeto time, relationship to relationship, and so forth” (xxiv–xxv). Rights cannow be claimed by anyone, including those on the right as well as the left.More importantly, rights can also constitute a negative frame of referencepropelling the mobilization of exclusionary “countermyths,” such as “commu-nity” or “sovereignty.” Finally, the success of prior struggles to achieve formal-legal rights now means that disadvantaged claimants often face a “Hobson’schoice” between claiming based on some degraded “victim identity” embeddedin a legal category, on one hand, and foregoing a struggle targeting the state,on the other (xxxvi). What law, or “legality,” and rights mean, who uses lawand rights, what other discourses are thereby conjured up and refracted, varies

24. We can say that research extending out from The Politics of Rights followed two broadpaths. One path pursued the nature and operation of rights consciousness in society, and theother examined the politics of rights in practice. Obviously, the instrumental use of rightsclaims bridges these two paths. It is not my purpose to trace these paths with any precision,assuming that that would be possible. Suffice it to say that anyone’s list of work strongly influ-enced by Scheingold would include Handler (1978); Olson (1984); Milner (1986); Bumiller(1988); Rosenberg (1991); McCann (1994); Kalman (1996); Silverstein (1996); Schultz, ed.(1998); Sarat and Scheingold, eds. (1998, 2001). We can also discern close affinities withScheingold’s thinking in other bodies of literature that provide much of the background mate-rials for current sociolegal studies, such as the disputing literature, the work of the AmherstSeminar, and the debates in the legal academy over rights discourse. See Law & Society Review(1980–81); Brigham (1988, 1996); Ewick and Silbey (1992); Tushnet (1984); Sparer (1984);Schneider (1986); Minow (1987); Williams (1991). For an interesting essay on the influenceof The Politics of Rights organized around the distinction between “instrumental” and “constitutive”conceptions of law, see Silverstein (2003).


enormously. The “mythic character” (xviii) of law remains, but what themythos means is in reality highly context dependent.25

The only things that one can say with any certainty about this areaof the new politics of rights is that it proceeds on the basis of culturalistconceptions of law, decenters the inquiry into law, and thereby focuses onthe perspectives and experiences of nonelites, “the seldom seen and rarelyheard,” as Gilliom put it. Whether we are talking about poor women onwelfare in Appalachia reeling under the humiliating surveillance of the state(Gilliom 2001), ordinary citizens in New Jersey with all manner of troublesand conceptions of things legal (Ewick and Silbey 1998), antigay marriageactivists in Hawaii waging war on “special rights” (Goldberg-Hiller 2002),or individuals with different sorts of disabilities in Western New York nego-tiating life and work in the faint shadows of the ADA (Engel and Munger2003), we are not talking about the personnel of the formal-legal system.

Scheingold then goes on to note that much research on collective legalmobilization and cause lawyering (strands 2 and 4) has explored “how,why, and to what extent an egalitarian politics of rights can be successful”(Scheingold 2004, xviii). Here, too, law as constitutive and decentering lawhave led to a far more complicated picture of enabling conditions and con-straints. For Scheingold, one central new theme is the malleability of legallanguage and, therefore, the maneuvering room that activists may have toreshape legal meanings. Law often constitutes “a contested discursive space”(xxviii), in conjunction with providing claimants with opportunities for thelegitimation of grievances and political mobilization.

McCann’s Rights At Work is the primary source of theorizing about themany complicated ways that law and rights can matter for social movementsor reform efforts at different stages of conflicts. McCann’s thesis was the ironicone that pay equity activists “derived substantial power from legal tacticsdespite only limited judicial support” (1994, 4). Benefits were of several kinds.The most important contributions of rights and legal tactics came at theformative, movement-building stage of these struggles and involved the sym-bolic meaning and resonance of rights claims. The threat of litigation andcourt interventions also leveraged material gains that activists won in otherforums. Thus, Scheingold states, McCann’s study surely confirms a centralthesis of The Politics of Rights. If legal tactics will have payoffs, the “indirect”ones will be rather more important than the “direct” ones. At the same time,Scheingold rightly notes that it would be a mistake to view McCann as anoptimist about legal tactics. For McCann, legal mobilization “catalyzed” and“leveraged” only because (1) broader structural and organizational develop-ments gave rise to conflicts and made solidaristic group struggles possible,

25. Prominent research that Scheingold cites and discusses includes: Bumiller (1988);Greenhouse, Yngvesson, and Engel (1994); Greenhouse (1997); Ewick and Silbey (1998); Gilliom(2001); Goldberg-Hiller (2002); Engel and Munger (2003); and Haltom and McCann (2004).


and (2) organizationally embedded lawyers were savvy enough to take a politicsof rights approach. These are, Scheingold says, highly contingent andrelatively rare preconditions that he originally took for granted (xxx).26

Similarly, contrary to his expectations in 1974, Scheingold writes,the cause lawyering research shows us that “the ‘lure of litigation’ is notinevitable” (xxxviii). In an article explicitly framed in terms of Scheingold’smyth/politics formulation, McCann and Silverstein demonstrated that manylawyers they studied acted as if they had read The Politics of Rights and hadgotten its message of mobilization (1998).27 Still, other cause lawyering researchdemonstrates that the myth of rights still holds in some circles. When causelawyers embrace the myth of rights, Scheingold says, they do so by “privileginglitigation,” especially appellate litigation, and by “honoring the law-politicsdistinction” (xxxix).

IV. SOME QUESTIONS ABOUT THE NEW POLITICS OF RIGHTS

As Scheingold’s new Preface demonstrates, in these neighborhoods ofsociolegal studies, his original myth/politics of rights formulation is alive andwell, and decentering law is now widely endorsed. In this concluding section,I suggest (1) that we should disaggregate the myth of rights and (2) thatthe current forward march to decentering law neglects some importantdimensions of “legal mobilization.”

The Myth of Rights Revised

Stated generally, one current implication of my reading of The Politicsof Rights is simply that we should be more wary when we see wholesaleinvocations of Scheingold’s myth/politics formulation, as we still often do.28

Instead, we might think about whether we can specify the relevant valuecommitments in play, as well as the several different kinds of empirical claims

26. For a detailed review of McCann’s Rights At Work and a reply by the author, seeRosenberg (1996) and McCann (1996).

27. McCann and Silverstein offer a set of four speculative theoretical propositions aboutthe contextual factors in which lawyers are more likely to “deploy rights politically.” Of these,the particular roles of lawyers in relation to movement organizations and the movements’broader resources and capacities emerge as most important. Interestingly, they even speculatethat there may be an inverse relationship between formal legal opportunities and judicialreceptivity, on one hand, and the sophisticated, political savvy use of legal tactics, on theother (1998). Here, Scheingold also discusses cause lawyering research by Susan Coutin (2001)and Nita Ziv (2001).

28. Indeed, perhaps it is not too much to say that “the myth of rights” in particularnow sometimes functions as a kind of symbolic shortcut from like-mind to like-mind.


involved, on both sides of the observer/observed divide. This disaggregation wouldhave at least two benefits.

First, it would bring the egalitarian observer’s ideological commitmentsmore sharply into focus. Once the elements of the egalitarian standpointare in view, we will then be in a better position to assess the precise natureof, and empirical evidence for, observers’ claims that actors are “captured” or“captivated” by an ideology. To be sure, current research on legal mobilizationand cause lawyering proceeds in consideration of the self-understandings ofsocial actors, routinely examining how actors themselves conceptualize theirpolitical values, goals, strategies, and the outcomes of their efforts (e.g.,McCann and Silverstein 1998; Sarat and Scheingold 1998, 2001). But theinfluence of the egalitarian standpoint can be seen in what these observerstend to make of these observations. When they find that social actors subscribeto or appear to act on the basis of liberal values, goals, etc., they typicallyproceed immediately to the task of constructing sociological explanationsfor why the actors come to hold these (questionable) views. Conversely,observers also search for the relatively less frequent contexts and conditionsin which actors are likely to embrace egalitarian values and goals and takea politics of rights approach. Obviously, we can and should construct accountsof the structural forces and social processes shaping the formation of valuesand preferences. Given the practical intentions typically involved in thisbody of research, such accounts would seem to be vital. However, disaggre-gating the myth of rights would require observers to specify what somepurported belief is about (values and goals, strategic questions, or both?) andto consider alternative possibilities for the interpretation of the observedthought and action. The question here is whether a social actor’s endorsementof liberal values and goals results from reflective choice, as opposed to subtleideological processes operating outside the actor’s purview. If the actor’sendorsement of liberal values arises from reflective choice, then what theobserver posits as ideology operating behind the actor’s back might be betterseen simply as a case of normative disagreement across the observer/observeddivide. The danger with the wholesale invocation of the myth of rights isthat it leaves the precise nature of claims underspecified. It is important tospecify the nature of the claim, because different kinds of claims might requiredifferent kinds of empirical evidence to support them.

Second, and more importantly, disaggregating the myth of rights wouldopen up the relationships among the component parts of the formulationfor further reflection and empirical scrutiny. Egalitarian scholarship generallytakes all of the component parts of myth/politics—political ideology andgoals; preferred forms and locations of political action; and conceptions oflaw, politics, and change—to be linked in two neat competing bundles. Inthe myth of rights, liberal ideology and reform goals, routine political actionthrough normal channels (especially litigation and courts), a belief in “theseparation of law and politics,” and faith in law’s efficacy, together constitute


one package, whereas, in the politics of rights, egalitarian ideology and goals,social movement forms of action, a belief that law is just politics, and skep-ticism about official law’s power and cultural constructions, together consti-tute another package. Although the assumption that these affinities existdoes generally make sense, the question here is whether they necessarily hold.Is there a necessary and invariable connection between a social actor’s egalit-arian ideology and redistributive goals, on one hand, and social movementforms of action, on the other? Whose definition of egalitarian goals shouldcount, the observer’s or the social actor’s? It seems likely that, at least insome situations, depending on how the egalitarian goals are defined and bywhom, a more elite-dominated, and perhaps even litigation-driven effortmight produce superior egalitarian results.29

To illustrate the utility of this strategy of disaggregation, we can turnto some current examples of scholarship using and building on Scheingold’sformulation.

In their widely cited article on cause lawyering, McCann and Silversteinbegin with the observation that what was once Scheingold’s cutting edgecritique has now become the conventional wisdom on the left. Theconventional wisdom now holds that cause lawyers “privilege formal-legaladvocacy” and have a “single-minded commitment to litigation.” By virtueof their training and socialization, cause lawyers also harbor “an unduly opti-mistic, even naively romantic view of law’s transformative potential.” Becausecause lawyers dominate and overwhelm other political activists, entiremovements “fall under the spell of legal professionals” and “fall prey to the‘lure of litigation’.” The myth of rights also includes an overly optimistic viewof judicial power, and a crowding out of other political strategies. Legalizationof conflicts narrows the range of demand and framing of issues. Legal activists“contribute to the illusion of change without advancing real reform.” Thus,they “tend to reaffirm more than resist status quo hierarchies” (1998, 261–64). McCann and Silverstein then go on to offer their account of how andwhy the thinking and practices of the lawyers they studied did not conformto this conventional wisdom.

29. Idit Kostiner’s study of the thinking of education activists in the San Francisco Bayarea reveals different understandings of egalitarian activism and related different understandingsof the role of legal strategies and tactics in their efforts. Kostiner distinguishes among activistsfocused on, respectively, material gains, political empowerment, and broad cultural change(2003). My own research on school finance litigation revealed a disjunction between substantivereform ideologies and preferred (and effective) forms of political action. I found that activistsin one state had a moderate reform ideology but impressively orchestrated participatory politicalmobilization, whereas activists in another state had a much more egalitarian ideology focusedon the redistribution of resources but rationally decided to rely almost exclusively on traditionaltest-case litigation for many years (Paris 1998, 2001). I believe that the actors who decidedto eschew political mobilization made a serious mistake, but this amounts to a difference ofopinion about a strategic question. See also Beth Harris’s work on how legal aid lawyers usedinnovative legal arguments and litigation to secure material benefits to prevent evictions andhomelessness in major cities (Harris 1999).


But the point to notice here is that, if McCann and Silverstein arecorrect about the conventional wisdom, then it embraces Scheingold’s con-ceptualization and critique of the myth of rights unmodified, except that themodern view makes more allowance for the confining ideological power oflaw’s discursive frames. The conventional wisdom simply reproduces themyth/politics formulation with all of the conceptual difficulties and ambi-guities that we noticed in the original version. It is worth noting too that,its many virtues and insights notwithstanding, McCann and Silverstein’sargument is drawn in relation to, and as the mirror image of, a “conventionalwisdom” that is itself rather amorphous and conceptually imprecise.

Similar echoes of myth/politics can be found in Scheingold’s 2001 post-script to the first two cause lawyering volumes. The research in these twoedited volumes studies lawyers working on various causes, in various countries,in various kinds of legal practice settings, in various contexts. As Scheingold notes,his task of synthesizing this body of work was rather “formidable” (2001, 283).30

Interestingly, in approaching this task, Scheingold did not repair to his orig-inal terminology. We find no explicit references to myth/politics in this piece.Nevertheless, Scheingold’s egalitarian outlook remains much the same, andthe synthetic framework he offers here reworks and reframes myth/politics.

In this postscript, Scheingold suggests a template comprised of threethemes to aid our approach to cause lawyering. First, cause lawyering inevit-ably has some connection to “democratic aspirations.” But here we findthat cause lawyering embraces “two distinctly different democratic narratives.”The “liberal-democratic” vision is “directed at securing political accountability,basic human rights, and the rule of law.” The “social and economic” visionof democracy, by contrast, “enlists cause lawyers into a struggle on behalf ofegalitarian and redistributive values” (383). Second, cause lawyers everywhereface patterned sets of strategic choices. They must decide (a) whether to “privilegelegal as opposed to political strategies,” and (b) whether to work within thestate or to try to maintain a more distanced, adversarial stance. Third, all causelawyers must reckon with the new forces and constraints of globalization.

With respect to strategic choices, Scheingold argues that the choice oflegal versus political strategies will mainly affect cause lawyers’ professionalstatus, whereas working in proximity to the state will have a decisive rolein shaping the political and policy results that cause lawyers can achieve.“Legal strategies,” Scheingold writes, “are constructed around the articulationof difference and separation between cause lawyers and the causes and clientsthat they represent.” To “choose the legal route,” then, is to dis-identify with

30. For an extensive and insightful review of the first two cause lawyering volumes, seeHilbink (2004). The comments that follow in the text would apply to Hilbink’s analysis aswell. His constructs of “elite vanguard lawyering” and “grassroots lawyering” track and elaborateon Scheingold’s original myth/politics formulation. Hilbink too takes each view to be a completeand inseparable package, although he does note that the same person might adopt (or holdherself out as adopting) either of these approaches in different contexts.


cause and client and to identify with the prevailing legal regime. “Politici-zation” of lawyering, by contrast, is all about “solidarity” with clients andcauses. Politicization privileges the cause “over legal and ethical constraints. . . Moreover, whereas rule-of-law cause lawyering privileges litigation, politi-cal cause lawyering tends to function in multiple venues” (387). When heturns to the strategic issue of where cause lawyers locate themselves in relationto the state, Scheingold suggest that, while cause lawyering inside the stateis not quite “a contradiction in terms,” it does exact a heavy price, for “mod-eration is an inevitable consequence of proximity to the state.” Scheingoldthen writes that this inevitable process of “compromise and moderation”raises the question of why “some cause lawyers put themselves in such closeproximity to the state that they thereby compromise their ostensible objectives,”whereas others place themselves so far outside of existing regimes that theyvirtually cease working as lawyers at all (391, emphasis added).

Reckoning up what the research tells us about cause lawyers’ variousmotives, the support structures and organizational settings for their work,and the legal and political opportunities they face, Scheingold concludes that“circumstances conspire to privilege a liberal-democratic agenda built aroundaccommodation with states, basic human rights and incremental legalism.Cause lawyers with more ambitious agendas—[agendas] directed at achievinggrass roots and egalitarian democracy [—] are much more likely to be mar-ginalized professionally and to have their political objectives thwarted bycountervailing pressures” (392). Cause lawyering “is ordinarily and perhapsinevitably driven toward limited, discrete, and primarily liberal-legal objec-tives and away from a broadly egalitarian democratic agenda” (394).

Scheingold’s competing visions of democracy (liberal versus egalitarian)and linked sets of strategic choices rearticulate his original myth/politics for-mulation. The reading of The Politics of Rights offered above facilitates two criticalcomments about Scheingold’s interpretation of the cause lawyering research.First, we see an assumption that there is an invariable and tight relationshipbetween substantive political ideologies and goals, on one hand, and formsand locations of political action, on the other. For example, it is not clearwhy Scheingold writes that “legal strategies” invariably involve identificationwith the legal regimes and dis-identification with clients and causes. Indeed,on this account, almost by definition, cause lawyers involved in egalitarianreform projects could not rationally pursue a litigation-focused strategy.

Second, it follows that the underlying empirical claim behind this link-age of ideology and forms of action must be the observer’s claim that legalstrategies inevitably ensnarl actors in a subtle process of “moderation.” That maybe, but we can now at least be on guard for the required empirical evidence.To say that certain forms and locations of cause lawyering practice involve causelawyers (and/or movements) in a “process of moderation” is to say that their valuesand goals shifted over time, and that the shift was caused or influenced bythe selection of “legal strategies” and working in “proximity to the state.” But


if the cause lawyers’ (and/or movements’) values and goals did not in fact shiftover time, but remained much the same, then the purported “process of moder-ation” would be a mischaracterization. There would be no process of moderation(or “de-radicalization”) as the price of using the master’s legal tools, becausethe relevant actors were not egalitarians in the first place. What we would havein that event would be a case of normative disagreement across the observer/observed divide. This is not to say that observers cannot offer reasoned, criticaljudgments about the effectiveness of strategic actions in light of values and goalsthat actors claim for themselves and claim to be pursuing. Nor is it to say thatobservers cannot claim to see and understand things that social actors do not seeand understand—e.g., all of the subtle structural forces pushing cause lawyeringtoward efforts consistent with liberal democracy. It is only to suggest that wecan be more precise about the kinds of claims the observer is making and there-fore more reflective about the kind of evidence needed to support the claims.31

Decentering Law/Recentering Law: A Final Thought on Legal Mobilization and Legal Translation

Law as constitutive and decentering law were clearly implications ofThe Politics of Rights. Decentering law counsels a turn away from “the hier-archy of formal institutions and doctrines” (Scheingold 2004, xxii), to “theway law is shaped and reshaped by relationships of citizens apart from directinvolvement by courts” (McCann 1998, 326). In the early 1970s, Scheingoldchanged the subject to what rights meant in society and to how activistsmight use rights to foster bottom-up political struggles. In his new Preface,Scheingold states that a generation of rights research has now led us to a“radical decentering of law” (2004, xxi–xxii).32 He writes that:

To radically decenter legality is to move beyond [the old] paradigm in twoways. On one hand, both the top-down and the bottom-up perspectives are

31. In a note responding to these comments on his 2001 Postscript to the first two causelawyering volumes, Scheingold wrote that he did not think it fair to read him to say that“legal strategies invariably are in conflict with representing clients and causes.” Rather, his realclaim was that “causes which transcend the liberal-legal paradigm are likely to face the choiceof being pared down or rejected.” In addition, he noted that he regarded the writing of thisPostscript as an “inductive exercise” that involved “drawing conclusions from the data presented”in the two edited volumes. Scheingold may be right that I am overreading him here. In any event,I would still maintain that we have the same “submerged question” that we saw in the myth ofrights—namely, do observer and actor agree about substantive values and goals in the first place?

32. Scheingold writes that his book “decentered law,” but that later work “radically decen-tered law.” He associates any study of “law-in-action” with mere decentering, which involved“the replacement of top-down with bottom-up views.” He associates “radically decentering law”with a constitutive view of law, as opposed to an instrumental one. Following general con-ventions today, I will simply use the term decentering law as the equivalent of what Scheingoldmeans by radically decentering law.


deemed inadequate and replaced by a vision of the interpenetration ofmultiple levels of legality. On the other hand, law is understood as “a con-tinuous part of social practice,” meaning that, “first, law is internal to theconstitution of those practices, linked by meaning to the affairs it controls;[and] second, and correlatively, law largely influences modes of thoughtrather than conduct in any specific case. Law enters social practices and is,indeed, imbricated in them, by shaping consciousness, by making law’s con-cepts and commands seem, if not invisible, then perfectly natural and benign”[xxii, quoting Sarat and Kearns (1993, 31, emphasis in Sarat and Kearns)].

Decentering law makes sense within the broader egalitarian, democraticframework animating current legal mobilization theory. It affirms that theexperiences and struggles of subordinated persons or groups are worthy ofattention. It says, quite rightly, that the subordinated too can be the authorsof legal meanings. Decentering holds that law is a key symbolic medium ofpower circulating in society. To understand how law matters in maintainingand resisting power and hierarchy, observers must turn their gaze to insti-tutional locations and contexts in society. At all “levels” or “locations,” lawis a “contested discursive space” (Scheingold 2004, xxii).

On the whole, decentering law has been a fascinating and salutary devel-opment.33 However, I suggest that Scheingold, McCann, and other proponentsof decentering are missing something important about processes of legal andpolitical mobilization.34 In decentered approaches, the prevailing imageryof the “contest” in “law as a contested discursive space” is of a battle between

33. I share the view of many, including Scheingold, that McCann’s Rights At Work (1994)would be Exhibit A for this proposition.

34. Developing my argument about decentering law would require a much more extendeddiscussion than the one offered here, not to mention some concrete illustrations. In the contextof this article, I can do no more than roughly sketch the basic point and suggest one possibledirection for building on current legal mobilization theory. For quite some time, sociolegalscholars embracing law as constitutive and decentering law have also been raising questionsabout this perspective (Brigham 1988; Hunt 1993; McCann 1998; Calavita 2001). However,none of this critical commentary raises the concern that I raise here—namely, a concern aboutdecentering’s relative neglect of the malleability and import of alternative frames “at the center.”Rather, the critical commentary endorses decentering and seeks to improve theory and researchwith respect to uncovering law’s complex meanings in society and politics. For example,McCann (1998) has pointed out that law as constitutive and decentering law present researcherswith several thorny theoretical and methodological difficulties. Law constitutes, but what dowe mean by “law”? How can a culturalist perspective mark off that which is law from thatwhich is “not law”? The locution “law constitutes x” would seem to require a theoretical defenseof law/politics and law/culture boundaries, but such theoretical defenses are not always forth-coming. Moreover, as Calavita (2001) has noted, the sense that “law” both shapes and is reshapedby normative orders in society and ongoing social relations seems to present a classic problemof circular reasoning. The effort to solve the circularity problem requires the specification of the“mechanisms” or causal processes through which “law constitutes” and the search for empiricalevidence for these mechanisms (see Brigham 1988; Hunt 1993). However, for many, the inter-pretive theoretical commitments behind decentering also counsel a rejection of the simplifyingassumptions needed to make more precise causal arguments about “law” and its constitutive power.


a mostly confining core and an occasionally liberating periphery.35 The discursivespace for egalitarian constructions lies at the margins in society and mattersmainly in conjunction with bottom-up political action. Law in society is wherethe oppositional action is, and not within litigation. Decentered approachescertainly acknowledge that official legal frames vary, and that agents some-times have a range of choices for framing legal claims one way rather thananother. But, in practice, decentering means that the thought processes andactivities involved in framing and constructing legal challenges are not importantobjects of inquiry. What is needed, I suggest, is a better conceptual vocabularyfor investigating legal framing and its significance, albeit within existingculturalist views of legal and political mobilization. The culturalist view of lawitself holds that the ideological content and symbolic affinities of official doctrinecan have great force in shaping the terms of public debate and the organizationof politics. This is so not only for current contests, but also for possible futureones. Therefore, current legal mobilization theory might gain from developinga sharper focus on legal framing as a species of political opportunity. I concludewith a discussion of one way to build on existing theory along these lines.36

Legal mobilization has been defined as the translation of a desire orwant into a demand framed as an assertion of rights (McCann 1994, 6, quotingZemans 1983, 700). Studies have sometimes conceptualized legal mobiliza-tion as primarily about organizational resource and capacities (Galanter 1974;Zemans 1983; Lawrence 1990; Epp 1998) and sometimes as primarily aboutthe symbolic use and meaning of legal concepts and categories (Mather andYngvesson 1980–81; Milner 1986; McCann 1994; Mather 1995, 1998;Silverstein 1996). A revised legal mobilization approach could draw on thework of legal discourse theorists, such as James Boyd White (1990) and AnthonyAmsterdam and Jerome Bruner (2000), for the idea of legal translation, whichidea in turn counsels greater sensitivity to the narrative and rhetorical dimensionsof legal claiming. A focus on legal translation can enrich this tradition ofresearch by opening up new questions about opportunities and constraintswithin official legal doctrine and institutions.

35. This dual association of core with constraint and periphery with opportunities canbe found in McCann’s Rights At Work (1994) and related theoretical essays (1998a, 1998b).Unless the relevant preconditions are in place, the invocation of legal strategies and tacticswill amount to, and generally be dismissed as, an instance of Scheingold’s original “myth ofrights.” See also Silverstein (1996) and Marshall and Barclay (2003, 618).

36. It seems to me that most proponents of decentering law have pursued it at least inpart because of their own left leaning ideological commitments and interests (see, for example,Frank Munger’s Presidential Address to the Law and Society Association in 2000; Munger2001, 10–11). In a comment on an earlier draft of this article, Michael McCann took issuewith my sense of decentering and what motivates it. He stated that no particular political-ideological commitments drive decentering and that the meanings and uses of decentering inrelevant literatures are far more varied and often rather less clear than my account wouldlead one to believe. Moreover, even assuming some stable meaning and usage of decentering,it cannot be said that decentered perspectives “neglect” official legal doctrine and consciousnessabout it. I am content to note McCann’s objections for the record and to let the reader decidewhether my account mischaracterizes or caricatures current research.


The metaphor of translation implies a “carrying over” from one languageor domain to another. The idea of legal translation begins with the com-monplace sense that there is some sort of translation process involved inmaking a plausible legal claim. As White puts it, “law is a language intowhich other languages must be continuously translated” (1996, 55). Whiteviews law as a branch of rhetoric in which speakers must look outside them-selves in highly disciplined and structured ways in efforts to give new lifeto old texts. They must face the past, insofar as it is embodied in authoritativelegal materials; they must face adversaries who will challenge their inter-pretations and offer their own, for “the testing of one version of its languageagainst another” is inherent in law; and they must face the present socialcontext and the details of the concrete problem at hand. Out of these tensions,new texts and meanings emerge. White sees the process of legal argumen-tation as essentially “literary and compositional” (1990, xiv, 21, 79–80, 89).

Legal translation is a rhetorical process. As Amsterdam and Brunerrecently put it, not only does “telling” in law always involve “selling,” but everyonein the game is aware that this is so. They define “rhetorics” as “the variouslinguistic processes by which a speaker can create, address, avoid, or shapeissues that the speaker is called upon to contest . . . [S]etting the agenda ofcontention is a crucial move for all rhetoricians” (2000, 165–66). Categoriesand narratives are the building blocks of rhetoric in law. Categorization itselfis an act of meaning-making, with narratives forming larger wholes withinwhich categories fit and work. The law, they say, is “awash in storytelling” (110).

By invoking White and Amsterdam and Bruner here, I do not meanto suggest that legal mobilization approaches should be centrally concernedwith the analysis of legal texts from some perspective derived from literarycriticism or cultural studies.37 Rather, the claim is that these approachesmight be useful to the political observer for the purpose of scrutinizing the

37. White’s work never ventures beyond literary readings of texts. As his critics in sociolegalstudies have pointed out, his view of law as a branch of rhetoric is a rather idealized andromantic one (“all sweetness and light”) that reaches back to the Chicago Critics and theirview of rhetoric as “the art of motivating to the good” (Binder and Weisberg 2000, Chapter4). Scholars interested in law and political struggle have been harsh in their criticisms ofWhite and other optimistic discourse theorists for their new brand of legalism and “sociologicalnaivete” (Brigham 1987, Chapter 1, especially 25–28). See also Gilliom and Carter (1989);Tushnet (1990); Levinson (1991); and Binder and Weisberg (2000). Although I generally agreewith White’s critics, I do think that a political reinterpretation of his key notion of legaltranslation can enrich legal mobilization theory by opening up an area of inquiry that is nowgenerally neglected because of a commitment to “decentering law.” Amsterdam and Bruner’saccount is far more immersed in cultural and linguistic theory, and far less “sunny”; they applytheir profound theoretical insights to uncover how conservative Supreme Court justices do badthings with words. Still, like Boyd White, Amsterdam and Bruner tend to assume that “speakers”generally have a wide range of choices for talking one way rather than another within officiallaw. For example, they say that “litigators have a broad range of discourse options at the earlystages of litigation, and they can often find ways to keep various options open until later stages”(2000, 381 note 20). Thus, current legal mobilization theory tends to assume that official lawand courts are marked by a high degree of constraint, whereas the new discourse-oriented law


narrative and rhetorical dimensions of legal mobilization in official domains.In particular, we might broaden White’s notion of legal translation. InWhite’s writings, law as rhetoric would seem to be a self-contained world,or “culture of argument.” Within a legal mobilization approach, legaltranslation could be conceptualized as a practical political activity involvingprocesses (how actors think about it and do it, and why) and products (textsand performances in legal settings).

To explicate processes and products of legal translation, we could beginwith two sorts of ideological orientations—or two sorts of “starting places”impinging on how and why the “carrying over” gets done—that would-bechange agents will hold or display, whether self-consciously or not: (1) anideology about law, politics, and change (or a “legal ideology”), and (2) asubstantive political or reform ideology. Both sorts of ideological orientationswill shape how actors think about and practice legal translation.38

First, would-be change agents will have an ideological orientationtoward the nature and role of things legal in political conflicts. They maybe legalistic in some or all of the ways posited by Scheingold’s “myth ofrights,” or they may be more realistic and savvy in the ways uncovered byMcCann and Silverstein in their respective research, or they may evendemonstrate an awareness of the culturally constitutive dimensions of law.

Second, would-be change agents will have an ideological orientationtoward the substance of that which they wish to contest and change. It is thissecond kind of ideological orientation and its role in legal translation thatcurrent legal mobilization theory tends to neglect. The substance of a movementor reform ideology might provide a primary starting point for an observer’saccount of how actors go from one place to another in a legal translationprocess. Here, substantive ideology encompasses the definition and analysis ofproblems or situations and the projection of some better future state of affairs.

What is the range of possibilities for legal translation in any given con-text? Why did individuals in a reform project end up framing a legal challengeone way rather than another? What strategic calculations did they makeabout legal framing, and why? How did they imagine that others would respond?What broader process of change did they envision? How well does a sub-stantive reform vision come out in legal translation? The explication of legaltranslation requires close attention to the “category-and-fact work” involved,to the working back and forth between concepts and categories given in or

writers tend to assume wide-open, free-floating choice. Again, my suggestion is simply to treatthis question of room for ideological maneuver “at the center” as a more complicated openquestion within the broader framework of legal mobilization theory. The more general skepticismof legal mobilization theory at least allows us to be mindful of an obvious point that the law writersseem to miss—namely, that the constraints upon what it makes sense to say within law areof many kinds; they are not just internal to legal discourses and limited only by the imagination.

38. In separating out these two senses of ideology (substantive and legal), I rely onMilner (1986).


derived from law, on one hand, and “facts” sought out in light of both thesubstantive ideology and political/legal strategic calculations, on the other.Again, both sorts of ideological orientations will impinge upon legaltranslation.39

A focus on legal translation turns the range and import of framingoptions “at the center” into more of a problem to be studied. It would meanattending to the consciousness of activists doing or influencing legal trans-lation and to the ideological content and rhetorical quality of legal claims.It would therefore open up for more careful scrutiny both the logic andpossible political implications of agents’ legal framing activities.

Why do legal translation processes and the content of formal-legal claimsmatter? I suggest two broad reasons. First, and most obviously, legal claimsfunnel into the content of judicial opinions. Although the distinctionbetween courts and other kinds of political institutions can be overdrawn,courts are often uniquely hospitable forums for the articulation of novel moraland political claims and “creative transformation of disputes” (Mather 1995,1998). To be sure, not everything can be plausibly said in court, and evenless is likely to be heard. And, to be sure, courts alone often will lack thepower to dictate changes in the behavior and policies of officials in otherinstitutions. But we do have ample evidence that court decisions and theopinions justifying them do powerfully shape the language of politics andthe agenda of contention, even if they do not dictate outcomes.40 Moreover,given the nature of courts as backward-looking, incrementally proceedinginstitutions, the occasional court decision marking an important departurefrom prior law can have particularly strong “lock in” effects that shape andstructure the terms of subsequent debate and action for some time to come.

39. Consider an example: Suppose a new workfare policy that requires recipients of publicassistance to work off their benefits by performing demeaning labor, and suppose a set of com-munity activists and affiliated lawyers interested in fighting these new policies. Given a certainideological orientation about social welfare policies, and certain views of law, courts, and socialchange, the activists and lawyers may seriously consider framing and gathering evidence fora legal claim that sitting judges are likely to find implausible, if not silly: “New workfare policiesconstitute a form of ‘involuntary servitude’ within the meaning of the 13th Amendment.”The activists may find the claim quite plausible, if not exactly true yet as a matter of whatjudges think the law is. Moreover, if they believe that the motivation and mobilization ofthe poor persons targeted by the new draconian policies will be necessary effectively to resistthese policies, they may well frame and make the claim. However, if they believe that judicialvictories will be essential to achieving their goals, this particular claim probably won’t be atthe top of their list. I’ve drawn this example from John Krinsky’s research on community oppo-sition to workfare requirements in New York City (Krinsky 1999). See also Hilbink’s discussionof how different types of cause lawyers have different target audiences in mind (2004).

40. As John Brigham put it in 1987 in lines that have often been quoted since: In a political sense, the impact of appellate courts is on how they structure political life . . . As an opinion enters the political environment, it joins with a configuration of definedinterests and values operating around institutions, and perceptions of what is possible . . .By refining the language of politics [appellate courts] contribute to the association of whatis possible with the authority of the state (1987, 196).


When we put these observations about courts together with the factthat it is a rare judicial opinion that does not bear the strong imprint ofthe arguments brought forth by the parties, the significance of legal translationand its relationship to an underlying reform ideology becomes clear enough.If the argument projected in court is something like the one that reformersreally want to make, and if the courts accept at least some approximationof it, then reformers can at least be assured that their vision will occupy aprominent place on the public agenda, even if other actors never do agreeand continue to resist reform. By contrast, if the argument projected in courtbears a more tenuous or indirect relationship to a reform ideology, then, what-ever else is true about legal claiming and a broader political struggle, reformersforego the benefits of the strong ideological agenda-setting role of courts.

Second, if reformers are taking political action in addition to litigation,as they now often do, a focus on legal translation brings into view questionsabout the ideological articulation between legal and political strategies. Spe-cifically, it seems to me that ideologically consistent legal and political mobi-lization may have an overlooked bearing the success or failure of litigation-involved reform projects.41 Ideological consistency means that legal claimsroughly embody a substantive reform agenda or vision, and that this samevision animates political action and argument in other settings. Ideologicalconsistency may facilitate political mobilization. As McCann shows in RightsAt Work, some legal claims can name felt grievances and resonate well withthe lived experience of claimants. The pay equity reformers not only gotScheingold’s message of mobilization but also seemed to grasp that particularrights claims could be meaningful to constituents and could therefore moti-vate them to make their way onto the political stage. Ideological consistencymay also help activists win the support or respect of interested third partiesor broader public audiences. One common charge against litigation-involvedreform projects is that they amount to a cynical end run around the “ordinary”political process. Making the same substantive arguments in different insti-tutional settings may help mitigate the force of that objection.42

41. For an exploration of this claim based on single case study, see Paris (2001).42. I want to emphasize the tentative nature of these suggestions about the meaning

and significance of ideologically consistent legal and political mobilization. It is clear that thereis no firm or necessary relationship between ideologically consistent legal and political mobi-lization and overall success. A legal claim that is not actually much believed in for its substanceor that is somewhat beside the main point of contention may provide already mobilizedconstituencies with just the strategic leverage they need to carry on the fight elsewhere (require-ments for environmental impact statements come to mind—see Handler (1978)). Or, the rawfact of standing up to those in power through legal claiming may be far more importantsymbolically for a movement than what is actually said in law (the civil rights movement’suse of federal procedural law in courts in the South comes to mind—see Poletta (2000)). Or,as McCann and Silverstein have suggested, closed courthouse doors may be the parent of politicalinvention in politics. I mean to argue only for the closer study of the questions I am raisingand not for firm answers.


***

In his foreword to the new edition of The Politic of Rights, Malcolm Feeleystates that Scheingold’s “book has already exerted an enormous influenceon two generations of scholars . . . With this new edition, its influence is likelyto continue for still more generations” (xvi). Feeley surely has this right.Scheingold’s book is, as Feeley puts it, “a classic,” and the publication of thisnew edition is indeed a cause for celebration. It is one of those rare texts thathas lived on and will continue to live on, breathing new life into its subject.

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