This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side, and influencing the types of legal reform those coalitions are able to pursue.
A series of state decisions on same-sex marriage had such a framing effect, advancing an equality-based frame, downplaying arguments about the immorality of homosexuality and the necessity of defending marriage, and creating opportunities for gay rights activists to build alliances with civil rights organizations. Similarly, Roe v. Wade deemphasized population control arguments and made it easier for the pro-choice movement to win the support of civil or minority rights leaders.
By drawing on these historical examples, I claim that litigation may sometimes offer benefits not available through direct action protest: litigation may make it less strategically risky for cause lawyers to advance multiple, competing frames of an issue at the same time, and judicial decisions may provide a strategically low-cost way for social movements to publicize a new definition of a cause. By altering the definition of a cause in this way, a judicial decision may create an environment more favorable to change.
Framing Change: Cause Lawyering, Constitutional Decisions, and Social Change,
94 Marq. L. Rev. 263
Available at: https://scholarship.law.marquette.edu/mulr/vol94/iss1/4