Bruce Ackerman, Social justice
Civil Rights and Discrimination | Constitutional Law | Law and Race | Law and Society
This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in 2011. This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. While we are in fundamental agreement with Professor Ackerman’s project, as well as the claims he makes as to the new constitutional canon, we supplement his analysis with the overlooked impact of the lawmaking potential of social movements. In particular, we focus on those social movements that were critical to the legal changes that formed the core of Professor Ackerman’s book. The strong claim that we are making is that the social movements of the civil rights era were actually sources of law. The weaker claim is that these social movements deeply influenced the formal legal changes represented by the statutes and Supreme Court decisions that framed the constitutional moment so convincingly illustrated by Professor Ackerman. In order to make the stronger claim, we demonstrate how social movements made some legal conclusions not just more likely, but for all intents and purposes, inevitable. The way the Court interpreted existing racial justice jurisprudence and was responsive to the constitutional understanding represented by non-elite actors in the civil rights and social justice movements that had their high water mark in the 1950s and ’60s.
Guinier, Lani and Torres, Gerald, "Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements" (2014). Cornell Law Faculty Publications. Paper 1212.
Published in: Yale Law Journal, vol. 123, no. 8 (June 2014).