Creative lawyering. The skills of creative legal problem solving and iterative design thinking that debate inculcates are essential responses to multiple global threats. Our model teaches students the skills to succeed as social change lawyers, but we don’t need to win everyone goes to law school because learning how the law intersects with activism and society is relevant for everyone.

Whether evidenced by the election of Donald J. Trump to the U.S. presidency, the Brexit vote in Great Britain, the Women’s Marches, or advocacy on behalf of stricter gun laws in the wake of the school shooting in Parkland, FL, there appears to be a clamoring, on the right and the left, for social change.1 Many of these efforts are organized at the grassroots, organically, and some are orchestrated by wealthy donors.2 Whether organic or orchestrated, many participating in such efforts are dissatisfied with the status quo and seek social change, regardless of their political perspective. 3 When people seek social change, they often see a problem before them that they want solved, whether it is to end gender-based, work-place harassment and sexual violence,4 or relieving corporations of what are perceived as burdensome, “job-killing” regulations.5 In what Gillian Hadfield calls a “law-thick world,”6 in order to address such problems, the solutions often involve some change to the legal infrastructure that addresses the social issue advocates seek to affect when they pursue social change. 7 And in order to affect such social change, creativity in finding solutions is often a critical feature of any effort to change that legal or regulatory infrastructure. In addition to the conscious efforts of individuals, groups, and corporations to effectuate social change, through legal and policy advocacy, campaign donations, and community mobilization, social change is also happening, whether it is driven by forces that may have humans at the center of them, like commercial ventures that produce technological change,8 or occurring despite the best efforts by some to curtail them, like climate change as a product of human activity that sets natural forces and responses in motion.9 Whether humans cause such problems directly, and with intention, or only indirectly, and unintentionally, human agency is central to address the range of problems the world faces at present.10 Given the complexity of such problems, creativity is needed to craft solutions.11 What is more, the curation of legal, policy, and regulatory solutions to these problems will likely be at the center of efforts to address them, whether they involve building up and increasing, or taking away and reducing, the size and scope of the legal, policy, and regulatory infrastructure that addresses such problems. If creative problem solving is a necessary element of social change now and in the future, and a core element of such problem solving will require legal, policy, and regulatory responses to these problems, lawyers will be at the center of social change for the foreseeable future.12 Given the complexity of the problems and the need for creative solutions to address them, it will not be just any lawyers at the center of this change, but, rather, creative ones. If this is the case, can we identify the elements of creative lawyering for social change so that we might understand what it will take to prepare and train lawyers to assume their proper role in efforts to bring about such change? This Article is an attempt to identify these elements by a review of three moments in American social and political history when lawyers played a critical role in crafting creative solutions to thorny social problems.

The lawyers I will choose to highlight in this review include several lawyers involved in the effort to end slavery in the United States, those engaged in the legal fight to dismantle the Jim Crow system in the South in the mid-20th century, and the recent effort to bring about marriage equality for the LGBTQ community. While the lawyers in these moments were not the sole actors in the social change effort that unfolded in these particular points in history, nor were they even the main drivers of the campaign to end slavery, nevertheless, in all three examples, the lawyers I will highlight played key roles in helping to craft not just our understanding of these problems but also creative responses to them.13 In at least the last two examples, the creative lawyers I will highlight helped to lead the legal struggle to reconstruct an edifice of inclusion and equality and solve dramatic legal inequalities with an ultimate goal of rectifying broader, societal inequalities. The hope is that this review can help unearth lessons from past instances when lawyers used creativity to advance social change, particularly social change that had a legal component at its center, to help inform efforts in the present and future to effect similar social change.

With these goals in mind, this Article proceeds as follows. In Part I, I will review the literature on creativity in the law in an effort to show that, contrary to popular perception, there can be creativity to the lawyer’s craft generally, and I will try to review the techniques that lawyers often use when they seek to address their clients’ problems creatively. I will also explore the ways in which social change lawyering is different from, and can often be more complex than, more traditional lawyering.

In Part II, I will explore three examples of instances where lawyers played a significant role in helping to advance social change in the hope that such an exploration will help unearth common themes regarding the approaches these lawyers appear to have taken in advancing social change creatively and with intention. These three examples, as discussed, will involve the effort to end slavery in the United States, the campaign to dismantle Jim Crow, and the effort for recognition of same-sex marriage. I submit that these three examples offer critical lessons about what creative lawyering for social change entails.

In Part III, I will identify what I consider to be the five common components of these campaigns for social change. This review suggests that these components include, first, that the lawyers have often proceeding incrementally and in an iterative, experimental fashion. They have looked for ways to build support for their legal position both in the courts of law and in those of public opinion, seeking a tipping point where the solutions they propose gain and secure traction and ultimately create a new legal paradigm around the problem.14 Second, creative lawyers advocating for social change have typically viewed the legal problem that presented itself in a way that others have not viewed it, often taking the arguments of their adversaries, coopting them, turning them on their heads, reframing them, and shifting them to the lawyers’ advantage.15 Third, creative lawyers are humble enough to incorporate the viewpoints and approaches of other disciplines, bringing different domains into the advocacy effort in order to strengthen their legal arguments.16 Fourth, lawyers often seek out, both consciously and unconsciously, what the late Derrick Bell called “Interest Convergence”: opportunities for different sectors in society to share a common goal based on their similar, though often different, particular interests.17 Fifth, creative lawyers for social change often recognize that their advocacy does not appear in a vacuum: it is dependent on and occurs simultaneously with changes occurring in broader society.18 In these ways, it is interdependent with larger social forces and the creative lawyer must take them into account when she engages in efforts to bring about social change.

The final section, Part IV, will explore the implications of this taxonomy of creative social change lawyering and attempts to chart a path forward for those who might want to bring creativity to such an endeavor, either because they are currently lawyers advocating for social change, they are current law students or law faculty, or even those who are simply contemplating going to law school. It tries to spark a discussion about the proper role of creativity in lawyering at this time of great social ferment, when many seek to advance social change and to alter the legal landscape in order to address what they see as societal ills.

I. CREATIVE PROBLEM SOLVING AND THE LAW

A. Lawyering as Creative Problem Solving

The world’s natural resources are under threat and the ability to feed a growing global population faces serious challenges due to the specter of drought, the inundation of farmlands, the erosion of top soil, and other problems caused by climate change.19 Armed conflict in the Middle East and Africa,20 political unrest in South America,21 and criminal terror in Central America have created a global refugee crisis.22 The rise of authoritarianism and a hard-edged form of conservative populism threaten the rule of law.23 A threat to the rule of law, in turn, is a challenge for economic growth, as fairness, consistency, and predictability in governance is directly correlated with the economic health of a nation as well as its long-term survival.24 Rapid technological change, which is a product of compounding technological innovation, is already remaking society and is likely to have dramatic effects on social and economic relations for generations.25 Whether it is autonomous vehicles, the Internet of Things, or Big Data and artificial intelligence, the rapid increase in computing power that has been unleashed could address some of the world’s problems, like pedestrian, passenger, and driver deaths from automobiles,26 but has also created new ones, like privacy breaches, cyber-security, and the threat of a drone or unmanned vehicle delivering a dirty bomb or, worse, a nuclear payload, from a remote location on the other side of the planet.27 Rapid technological change has also remade the economic landscape, and stands to alter the relationship of many workers to their employers, a shift we are already seeing in the sharing economy.28 Whether it is complete displacement from automation, or a shift from regular employment to sporadic, contract, “on demand” work, the relationship of many of the world’s workers, in such diverse fields as truck transport, manufacturing, and even the law, are likely to see dramatic changes to the ways in which they relate to their employer and earn a living over the coming decades.29 Furthermore, as the evidence of the use of modern technologies like the internet and social media to undermine elections in several democratic nations is overwhelming, it is apparent that sometimes the forces described above, like authoritarianism, technological change, and threats to the rule of law, compound each other, as technological advances can support efforts to undermine the rule of law, exacerbating the threats to stability and democracy.30 Similarly, technological change is having a dramatic impact on economic well-being across the world, creating vast wealth for a few and increasing inequality in some nations.31 These problems are all crying out for a solution; and lawyers are in the problem solving business.

For Gerald Lopez, “Lawyering means problem-solving.”32 Similarly, for Carrie Menkel-Meadow a lawyer is a “professional with formal legal training who employs law, as well as other relevant disciplines, to solve human problems and disputes, plan transactions, prepare legal instruments and regulations.”33 Lawyers often find themselves in the “problem space” where they must either find solutions, or, in order to advance a client’s interests, make situations more complex or difficult.34 According to Gary Blasi: “At bottom, lawyering entails solving (or making worse) problems of clients and others, under conditions of extraordinary complexity and uncertainty, in a virtually infinite range of settings.”35 The American Bar Association describes problem solving and legal analysis as the two “conceptual foundations for virtually all aspects of legal practice.”36 But lawyers do more than bring mere technical skill to this problem space. As Paul Brest argues, a lawyer must certainly utilize her legal training and judgment to address a client’s problem, she must also understand the other constraints—like the political setting or the economic capacity with which a client operates—that bound that client’s actions.37 Indeed, as he and Linda Hamilton Krieger explain: “finding the best solution—a solution that addresses all of the client’s concerns—usually requires more than technical legal skill.”38 Lawyers thus solve client problems that have a legal component to them, taking into account a range of interests and needs, in the pursuit of solutions that address those needs.39

But what role does creativity play in lawyering and problem solving? According to Shultz and Zedeck, creativity is one of the core lawyering skills they have identified as essential to contemporary law practice.40 Legal problem solving tends to require some degree of creativity, regardless of the nature of the work involved.41 When engaging in creative problem solving, Menkel-Meadow argues that the lawyer uses analogy and metaphor, draws lessons and insights from other fields, “extend[s] a line of reasoning, principle or solution beyond its original purpose”, challenges conventional assumptions, deploys narrative, and reframes problems by looking at them from different perspectives.42 Another way to think about these approaches is that they represent what is sometimes called “lateral thinking”; moving beyond purely linear, analytical thought; and shifting mental paradigms.43 Similar to Menkel-Meadow, Linda Morton has identified the characteristics of creative problem solving in the law as including a focus on the “underlying needs and interests . . . of individuals as well as society;” an analysis of the values at stake in a situation, including those of an individual but also “society as a whole;” the use of interdisciplinary resources; a focus on problem prevention; and “self-reflection and analysis.”44

B. Problem Solving and the Social Change Lawyering

While the problem-solving work of lawyers often involves creativity, particularly when she is asked to solve complex problems, the lawyer who works for social change—however she defines that change—faces unique challenges that add another layer, or layers, of complexity to the lawyer’s work and the choices she must make.45 Social change lawyers certainly must bring creativity to their work to solve the complex problems they are often asked to solve, or take it upon themselves to solve, but the role they assume when seeking to address social problems takes on new dimensions beyond that which the traditional lawyer must address.

1. Social Change Lawyers Work to Change the System.

The most important difference between a social change lawyer and a traditional lawyer is that the social change lawyer is generally working to change the legal infrastructure affecting her client’s life.46 The traditional lawyer, by contrast, generally works within that infrastructure.47 Certainly, there are situations where a traditional lawyer might argue for a novel or creative take on a particular precedent so as to gain an advantage for a specific client, but the social change lawyer generally works for broader, societal change, and the novel or creative arguments about precedent can, at times, have tremendous impact on not just her client, but society more broadly. The lawyers who argued Obergefell v. Hodges48 were claiming recognition of their clients’ marital relationships. A traditional lawyer might do that when seeking recognition of spousal support on behalf of a client. But the arguments the traditional lawyer might make are likely asking for recognition for the client within existing definitions of marital relations. The marriage equality lawyers were arguing, similarly, for recognition of LGBTQ relationships using existing legal frameworks, for sure: in fact, that was the point of the marriage equality effort.49 But what that required was a new understanding of not just marital relations, but also of the Equal Protection clause itself.50 This is just one example of a situation in which the social change lawyer is often arguing not inside the system, but seeking to change the system itself, making her job much more complicated and challenging than that of the traditional lawyer in many instances.51

2. Social Change Lawyers Must Strive to Empower Their Clients and Not Further Marginalize Them.

Not only must social change lawyers work to improve the lives of their clients and the communities in which they live, they must also strive to ensure that they are placing the clients out in front of the advocacy, empowering them.52 The wave of legal advocates that emerged in the wake of the successes of the Civil Rights Movement in the late 1960s and early 1070s, and the work they shouldered on behalf of marginalized groups, generated critiques of lawyer-driven advocacy.53 Some raised concerns that such advocacy, which was often focused on such lawyer-centric strategies like litigation, ran the risk of disempowering grassroots groups and detracting from efforts to build grassroots campaigns and, ultimately, grassroots power;54 moreover, some critics argued that such lawyer-driven strategies, on their own, fail to lead to lasting change.55 Such lasting change is difficult to achieve when efforts to promote social change do not fundamentally attack and alter existing power relations.56 Making matters worse, there is a threat that advocacy that places the lawyer at the center of the work can even further marginalize clients, typically by casting such clients as victims, and often treating them as such, rather than recognizing the potential of their own power as individuals and groups of individuals to pursue and obtain selfdetermination, autonomy, and power.57 Thus, social change lawyers should strive to put their client at the center of their work so as not to further marginalize them. Society does that enough. The traditional lawyer likely does not face similar challenges.

3. Social Change Lawyers Have Different Constraints in Case Selection.

There is also a unique financial component to the lawyer-client relationship that exists between the social change lawyer and her clients when compared to that typically involved in the traditional lawyer-client relationship.58 This different relationship can have ramifications for the actions the lawyer takes, or does not take, on behalf of her client. In the typical lawyer-client relationship in the contemporary legal profession, the lawyer is paid on a feefor-service basis, often at an hourly rate, and sometimes based on a flat fee depending on the service she provides.59 Sometimes a lawyer proceeds on a contingency-fee basis, where she bears the risk of an unsuccessful outcome, receiving compensation only if she is successful on behalf of her client.60 Each of these relationships hinge on the economic relationship between the lawyer and the client; the client often makes decisions based on an economic calculus of whether it is worth it to proceed with the representation based on—to put it crudely—how much justice she can afford.61 Thus, critical tactical decisions may come down to whether the client wishes to pay for the service offered by the lawyer.62 A client may wish to spare no expense and give the lawyer great freedom to make tactical decisions, regardless of the cost.63 The client may choose certain tactics based solely on a cost-benefit calculus of the likely gains possible through the use of different tactics and the potential outcomes and risks associated with those tactics.64 Of course, while cost may impact the tactical choices a lawyer might make on behalf of a client, with the decisions about those choices made with the client’s costconsciousness in mind, it is also entirely possible that the lawyer and client may have no tactical choices to make because the clients foregoes legal representation altogether based on the perceived costs associated with that representation and the likely benefits that might accrue, or, more simply, because she cannot afford any level of service from the lawyer.65 Indeed, many Americans face their legal problems without a lawyer, with cost being one of the main contributing factors to their decision to proceed, or not proceed, with representation.66 In many ways, this is a relative easy decision. The client consults with the lawyer, makes a decision on the likely costs and potential benefits of representation, and decides how she would like the lawyer to proceed.67

In the social change context, the calculus is often much different. There is certainly some small degree of overlap in the approaches utilized by some social change lawyers and those in traditional settings. With certain socialchange oriented fields of practice, like employment discrimination, employee wage-and-hour rights, police brutality actions, and social security benefits to name just a few, social change lawyers may operate from within the private bar, charging contingency fees for their work and taking a portion of the award they may win on behalf of their clients or earning remuneration through fee-shifting provisions in the statutes governing the claims.68 At the same time, the possibility of contingency-fee arrangements often crowds out the work of the social change lawyer, who might make strategic decisions about the types of cases she tends to take based on whether a particular client might have other options for representation based on the availability of lawyers from the private bar willing to take the client’s case through a contingency-fee-based retainer.69

But in other fields, where there are few contingency-fee opportunities, where the private bar might see the client’s claim as too risky to take (even on contingency), or where fee shifting might not be available, the social change lawyer will typically work in a non-profit legal services provider, whether that provider is a small, local organization that addresses local concerns, or a large, national organization, that seeks to promote a national agenda in a particular field.70 Indeed, the diversity of issues non-profit lawyers address is quite large, from animal rights and environmental justice, to claims on behalf of the transgender community and the rights of low-wage immigrant workers.71 For lawyers not operating in fields typically dominated by paying clients, or clients who can be served through contingency-fee arrangements, lawyers face a different calculus when it comes to the costs associated with providing representation.72 They must find funding to provide the representation, and that funding might come from a government entity, a private foundation, or a private donor.73 While the decision to take on a case in the traditional lawyer-client relationship may come down to whether a particular client will pay for the services she will receive from the lawyer, in the social-change setting, the lawyer must make a different calculation: whether the case is one that fits within the constraints that may be imposed by the donor or the source of funds.74 If the source is a government entity, the client must fit within the constraints imposed by that source, which is typically a function of the income of the client or the nature of the case.75 If the source of the funds that might allow the representation of the client is a private foundation or individual donor, the lawyer must ensure she provides services consistent with the donor’s intent when that donor made the contribution to the legal organization.76

The decision to represent a particular client in a particular case is not made simply on whether the client fits within the confines of the constraints imposed by the sources of funds the organization receives. While that is certainly a baseline requirement—i.e., the lawyer’s organization typically must have funding to provide the services—the organization will also take into account other concerns when considering whether to take on the case. In a world of scarce resources, legal organizations may impose a sort of “lifeboat” ethics when make decisions with respect to which cases to take.77 The degree of complexity of the case may make it so resource intensive that the decision to accept the case might mean that the organization is unable to accept other clients who might also fit within the categories of cases the organization may handle. If, for example, the lawyer were to take on a complicated eviction case, and, even if she were to save the client’s apartment, that representation might mean that three other families go without representation and face eviction as a result. Lawyers in these situations must make decisions about which cases to take based on some rubric of cost, merit, resources required, likely benefits that might flow from the representation, and the opportunity cost associated with rejecting other clients.78 While these decisions come down to resource constraints and costbenefits analyses, not unlike the factors that weigh on the client in the traditional attorney-client relationship, the social change lawyer and the organization in which she works typically make the decision whether to accept the case for representation. As a result, where in the traditional lawyer-client relationship the cost-benefit analysis is one made by the client, in the social change context, this decision is one typically made by the lawyer and the organization in which she works, adding a layer of complexity to the work that is mostly not present in the traditional setting.79 A private lawyer certainly may make the decision that, despite a client’s desire for representation, the lawyer may not take on the case, based on her present workload or other factors.80 Such decisions do not take on the same degree of complexity as in the social change setting. They may not take on the same moral or social weight either. A private lawyer turning down a paying client probably can rest assured that client will find another lawyer to represent her; that is not always, or even often, the case with the social change lawyer.81

Moreover, for the social change lawyer, there is often another aspect of the decision to take on a case: whether a particular client’s case presents itself as a vehicle for furthering the lawyer’s social change goals or agenda.82 In other words, one client’s case may offer the lawyer an opportunity to advance the social change goals she wants to pursue. The factors that go into the decision as to whether a particular case might advance the social change the lawyer wants to see are often quite complex, offering another degree of complexity to legal advocacy for social change.83 For many social change lawyers, as with any lawyers, the primary issue they must face when deciding whether they can take a case is often, first, whether the case has merit, and, second, whether the lawyer thinks she can win it. But whether one can win the case is often, itself, a question involving a highly complicated calculus, as is the case with all lawyering. For the social change lawyer, however, even defining what a win is can be complicated.84 The lawyer may score a moral victory, may delay an eviction or deportation, or may apply enough political pressure on a government agency that it decides to change a policy even when that policy is upheld by the courts.85 Some of these same considerations may play into the traditional lawyer’s calculus, but the decision to proceed is often left to the client in that setting. In the social change setting, the lawyer will have to balance the interest of the client before her, the interest of the broader community in seeing the policy challenged, and the interests of the funders of the organization in seeing activity consistent with the organizational goals the funder supports. These other interests may weigh on the social change lawyer in other ways as well, which introduces considerations the traditional lawyer does not typically face.86

4. Social Change Lawyers Face Different Opportunity Costs Related to the Tradeoff between Direct Services and Law Reform Activities.

Another aspect of social change lawyering that emerges in the face of resource constraints is that in order to pursue a longer-term legal strategy, when resources are committed to such a strategy (toward what is often called law reform), that necessarily means that such resources are channeled away from direct services that might solve a particular client’s immediate problem without addressing larger social change goals.87 While long- and short-term strategies do not need to be in tension, they can be when an organization does not have the resources to do both, and it must choose between law reform and other, similar strategies, and emergency, direct, and atomized services to individual clients.88 When members of the community the social change lawyer is dedicated to serving face real harm in the absence of legal interventions, social change lawyers can face a devastating choice: prevent an eviction, defend against the loss of custody of a child, or secure public assistance benefits on the one hand, or, on the other, pursue strategies that might restructure the legal relationships, over time, such that fewer members of the community face such harrowing outcomes.89 In some ways, these choices may have become less complex for some lawyers, because they have fewer choices to make: cutbacks to federal funding for legal services programs and restrictions imposed on such funding mean that lawyers in programs receiving funds from this source are able to serve fewer clients and have fewer tactical choices among which to choose. 90 This means both that lawyers who do not face such restrictions have more clients from which to choose (meaning greater complexity and choices), even as the overwhelming majority of low-income people face their legal problems without legal assistance.91

5. Social Change Lawyering Often Involves Complex Goals.

Putting aside the question of how resources should be deployed in the service of social change, and whether lawyers should choose between direct services and longer-term strategies, for the social change lawyer, there are often other, “larger” interests she must weigh in the decision to take on a case.92 If the cause she promotes is a goal identified by a particular community-based organization or the expansion of rights for a particular social or demographic group, taking on a case, pressing certain rights, and bringing them to the attention of the courts and the general public can sometimes undermine the long-term interests of the cause the lawyer supports because it can spark a backlash, a retrenchment of rights through the adoption of legislation that undermines any victory the lawyer may achieve in the courts, either through the acts of a hostile legislature or an electorate willing to adopt a ballot initiative to scale back or reverse such victories.93 In the marriage equality context, lawyers won victories in the state courts in several states, only to have those victories undermined by legislative action and even ballot initiatives.94 Thus, when considering the interests of the client that presents herself for representation to the social change lawyer, that lawyer often must balance the interests of that client against other interests.95 Once the lawyer accepts the case for representation, these other interests should generally factor less in the decisions that transpire throughout the course of the representation, however. But before the lawyer agrees to accept the representation of the client, these issues will likely weigh heavily on her decision to proceed or not to proceed with the case.96

6. Social Change Lawyers Must Often Chose among a More Complex Array of Tactics in Pursuant of Complex Goals.

If the decision is made to take on the case, another decision that the lawyer must make in the social change setting, often in consultation with the client, is the tactics that she will deploy in proceeding with the representation. In the traditional attorney-client relationship, these decisions might present themselves in a more straightforward way. The client wants to purchase property. She wants to sue over a breach of contract. The goals are often more discrete and more easily identifiable in such settings. For the social change lawyer, the goal or goals she might pursue might be more amorphous, and present more challenging problems to solve.97 The lawyer’s social change objectives might include improving the treatment of a particular social group in society generally or to protect a community from a particularly destructive government or business practice. The goals, and the tactics that one might use to achieve them, might not present themselves in so obvious a fashion. When the goals are themselves less defined, the lawyer will often find that the decision choosing among tactics is more complex. The lawyer, in consultation with the client, will likely weigh the likely costs and benefits of the different tactics that could be utilized to achieve the overarching goals of the representation, introducing even more complexity into the situation.98

7. Social Change Lawyers May Find It Difficult to Identify the Client.

Another layer of complexity comes from not just defining the goals of the representation or the tactics to be utilized to achieve them. Indeed, social change lawyering sometimes involves some debate over even identifying the client in each situation.99 Is the client the individual or group who presents him-, her- or itself to the lawyer for representation, or is the client someone or some group the lawyer has identified as serving as a strategic partner to advance the cause the lawyer seeks to further?100 Sometimes the social change lawyer goes out in search of the appropriate client who may serve as a participant in the social change strategy because that sometimes idealized and sought-after client’s situation is sympathetic or compelling, offering a salient narrative that both illuminates the plight of those whose situation the social change lawyer wants to improve through her advocacy and helps present facts that might garner support from the courts, policymakers or legislators who the lawyer may need to persuade in order to convince them to embrace the cause and advance the social change the lawyer is pursuing.101 This search for the client or clients that might help fill this narrative role might mean the client in such settings may assume a different role than one in the traditional lawyer-client relationship.102 Contemporary legal ethics requires even the social change lawyer to maintain a relationship with every client such that the client controls the critical ends of the representation.103 When the lawyer may have a different sense of who the client is in any given situation—is it the person who is the nominal representative plaintiff in a class action, is it the community the individual represents, is it someone or some other entity or group—the lawyer’s sense of whom she serves may change. The social change lawyer may thus perceive that she is entitled to have a different relationship to a specific client in a particular matter because the social change lawyer might see a living and breathing client as representing some larger cause or interest. This then means the process of identifying the clients’ interests and needs, and the tactics the lawyer should pursue, becomes more complex, and the lawyer, whether we like or not, must try to both understand who the client is, what the client wants, and how the lawyer should proceed on the client’s behalf. But all that depends on how the lawyer defines the client. When the client is an amorphous group like “the community,” with no clear spokesperson or constituent who can provide the guidance to the lawyer as to the interests and preferred tactics of the client, the process of identifying both who the client is as well as how the lawyer should proceed becomes more challenging.104 Admittedly, for some lawyers, they may feel that gives them license to proceed as they see fit, substituting their sense of what that undefined, incorporeal “client” wants; for others, the lawyer who truly wants to ensure that she proceeds with the interests of a client or clients at the center of what she does, that process becomes only harder, not easier.

C. What Complexity Means for Social Change Lawyers

When comparing the social change lawyer’s role to that of what I have called a traditional lawyer, it would appear that there is some greater level of complexity that adds to the general complexity of the problem the lawyer is attempting to address. The decision to accept or reject a client often has different components in the social change context when compared to that decision in the traditional, private relationship. In fact, that identity of the client may itself shift when the lawyer is engaged in social change lawyering; in turn, that shift in the identity of the client means the considerations and factors a lawyer must weigh are also different—and also more complex. So, the additional complexity often centers around what clients to accept for representation; what strategies to deploy to achieve them; the tactics to utilize in pursuing those strategies; and the direction the lawyer should take, and from whom, when pursuing those tactics and strategies. To a certain extent, some of these decisions play a role in the traditional lawyer-client relationship, but, generally, they involve a greater deal of complexity in the social change context. This complexity brings new dimensions to problem solving in this type of advocacy, requiring a greater degree of creativity from the social change lawyer in pursuing solutions to such problems.

Despite these additional considerations that lawyers working for social change have faced when engaging in creative problem solving for their clients (however they define those clients), lawyers have long played roles in attempting to help engineer social change. The unsuccessful litigation that would lead to the Supreme Court’s decision in Plessy v. Ferguson, which enshrined the doctrine of separate but equal, was in many ways the product of the type of legal campaign that became commonplace by the 1970s. 105 The prominent role that lawyers played in the Civil Rights Movement helped to serve as a model for efforts of progressive lawyers that have sought to promote environmental protection; women’s rights; the rights of different racial and ethnic groups, like the Latinx and Asian-American communities; and LGBTQ rights.106 It also prompted the rise of conservative legal organizations that promoted a pro-business or libertarian agenda through the courts.107

With some degree of urgency, there is a growing understanding that the law must be used to promote social justice and social change, but there is also an emerging appreciation for the fact that there is not just one way to use the law to promote social justice, and that those who would use the law to do so must be sensitive to community needs. This work is thus not only tactically flexible, “but also responsive and accountable to community interests and needs.”108 Scott Cummings describes this reemergence, with a focus on advocates seeking to promote workers’ rights, as follows: “[L]abor activists have, in fact, begun to leverage a broader range of legal regimes to advance multiple labor goals, from direct worker mobilization to the protection and expansion of unionized industries.”109 They have done this by filing suits pressing international human rights claims in order to “to mobilize immigrant workers,”110 brought land use claims “in an effort to block big-box retailers from entering markets dominated by unionized groceries,”111 and “threatened environmental lawsuits”112 in order to strengthen their negotiating position when seeking “community benefit agreements with labor-friendly provisions.”113 He argues that this suggests that “a more fundamental reorientation is under way within the labor movement,”114 because activists are adopting what he calls a “legal pluralist”115 approach which recognizes the many ways in which the law interacts with the employer-employee relationship to “leverage the power of law to advance labor goals.”116 This work is thus a “more politically integrated, tactically versatile model of legal practice,”117 where legal victories are only “moments in broader campaigns to stimulate collective action and leverage political reform”118 as opposed to ends in themselves. As Cummings further explains, litigation affords advocates just “one of many problem solving tools,” and clients are “allies to be educated and empowered for future struggles.”119 Others scholars have identified the ways in which low-wage worker legal advocacy has embraced this accountable and tactically pluralistic approach.120

It is also evident in the housing context.121 In my own work and research, I was a part of, and attempted to assess, the coordinated effort to fight the radical transformation of what was two middle-class and working poor housing developments in New York City, Peter Cooper Village and Stuyvesant Town, into luxury housing for the very rich. That effort, which combined community education, grassroots organizing, direct services through brief advice and assistance and direct representation, and an affirmative class action case, ultimately prevented the conversion of affordable housing to unaffordable housing.122 This was done in a tactically pluralistic way, in collaboration with a range of community partners, including an engaged, local elected official and a robust tenant association, as well as non-profit lawyers and private lawyers working on contingency. That work showed that lawyers from different backgrounds and experiences could bring a range of tactics to bear to bring about important social change, or at least prevent an erosion of significant economic rights from befalling the residents of these developments.123 This required effective coalition building, and the delivery of targeted, customized, and focused representation and assistance in an efficient way in order to balance the need for direct services that would prevent displacement while bringing tactical, affirmative litigation that would ensure the protection of broader, comprehensive rights for the collective benefit of the residents of these developments. This tactical pluralism provided effective relief, and required creativity both in terms of pulling together the different strands of the services to be provided as well as the individuals and organizations that would provide them. The complex problem of preserving affordable housing required innovative legal and advocacy strategies, as well as a diverse team of stakeholders and service providers, to bring about a successful outcome.124

The example of the work of labor rights activists and the housing lawyers involved in the effort to defend affordable housing in New York City show that lawyers engaged in problem solving in pursuit of social change face additional creative challenges that add new dimensions to their work when compared to the work of traditional lawyers. At the same time, as the following Part shows using just three examples, though there are many, many more from which to choose, despite these challenges, lawyers working for social change have helped to bring about dramatic change by playing a role in reforming the legal institutions that structure the relations between individuals, communities, broader society, and the government. Lawyers have helped sparked meaningful change in terms of improving civil, political, and human rights for countless millions of Americans. Thus, lawyers have found ways to confront the complexities associated with social change lawyering with creativity and zeal, helping to advance new understandings of the U.S. Constitution, the laws, and social relations in the United States.125 Are there lessons we can learn from the examples of such successful efforts to bring about positive social change that I will highlight here, particularly those ways in which such efforts involved creative solutions to solving complex social problems? In the next section, I will use three examples of lawyers playing a role in addressing complex social problems through legal advocacy in an effort to identify some of the common approaches and themes of such lawyers. It is to these examples that I now turn.

II. LAWYERING FOR SOCIAL CHANGE

In this Part, I will describe the role that lawyers played in three moments of significant social change in the United States: the effort to combat slavery, the decades-long struggle for Civil Rights for African Americans, and the campaign for marriage equality for members of the LGBTQ community. In the first example, much larger forces played a greater role in ultimately bringing about an end to slavery, yet lawyers still played an important role in addressing the treatment in the law of slaves, particularly escaped slaves, and that approach helped inform the larger effort to end slavery. In the Civil Rights Movement and the effort to attain marriage equality, lawyers played central roles (and at least in the Civil Rights Movement, subsequent critiques have argued that their role was too central).126 In each of these examples, however, the lawyers whose work I will highlight did not operate in a vacuum. The lawyers all were sensitive to forces playing out in the wider world, brought in other disciplines to support their efforts, and sought to form broad coalitions. What follows is a description of each of these three examples of lawyers working for social change. In subsequent Parts, I will explore some common themes that emerge from this analysis as well as what this analysis might say about creative lawyering for social change now and in the future.

A. Lawyers and the Abolition of Slavery in the United States

The first example to explore recounts the efforts of two lawyers who played roles in the effort to end slavery in the United States: one famous one and one not-so famous. Of course, lawyers had a significant hand in crafting the laws that first enshrined slavery in the U.S. Constitution127 and then in the many legislative compromises and proposals that would ultimately prove unsuccessful in either maintaining or ending slavery, with the failure of such efforts to end slavery peaceably ultimately leading to the U.S. Civil War. One of the main tensions between the Northern and Southern states was the Fugitive Slave Act, which had been updated as part of the package of provisions that would become the Compromise of 1850.128 The 1850 version of the law required that any slave holder whose slave escaped to free state or territory could petition federal authorities to return that slave to his or her master.129 Riots would sometimes occur in free states when federal authorities would move in to enforce the law, as abolitionists would seek to protect the escaped slave from return to bondage.130

With the outbreak of the Civil War, a question remained whether a slave holder from a Confederate state (or even a non-seceding slave state like Maryland) could enforce the law despite the open hostilities. An abolitionist general in the Union Army in the Western theater, John C. Frémont, issued a military proclamation freeing the slaves of any slave holder in Missouri who took up arms in rebellion.131 Abolitionists cheered this move, but conservatives in the north did not approve of it and Lincoln was concerned that such efforts might alienate border states that still recognized slavery. He would ultimately rescind the order. 132

Another Union officer, Benjamin Butler, a lawyer-turned-general who was commanding Fort Monroe, a Union garrison in northern Virginia, took a slightly different approach, and this creative approach helped advance the abolitionist cause on firmer ground than Frémont’s efforts had done. When three slaves who had been forced to assist the Confederate forces in building breastworks across the river from the Union fortress slipped under cover of darkness behind Union lines and presented themselves to Butler, he was forced to confront the applicability and enforceability of the Fugitive Slave Act in their situation. Butler seems to have had a complicated view of slavery. A northern Democrat before the war, some paint him as an abolitionist, and others reveal he very much feared that free slaves might, if armed, rise up in rebellion and strike out mercilessly against slave owners and their families.133

Nevertheless, as any self-respecting lawyer should do when faced with whether to apply a law to a particular situation, he consulted the text of the Fugitive Slave Act. For Butler, a plain reading of the law seemed to require that a slave owner residing in a slave state could petition federal authorities for return of an escaped slave. But Butler read the law literally, and took into account the position of the slave states, those in open rebellion like Virginia, from which these slaves had escaped. That position held that Virginia, since it had claimed that it seceded from the Union, was no longer a state. And if it was no longer a state, a slave owner from Virginia could no longer claim rights under the Fugitive Slave Act.134

Moreover, Butler took into account the role the slaves had played in supporting the enemy troops across the river. They had been dragooned into helping to build fortifications opposing the Union position and thus had supported the Confederate war effort. Logically, if Butler had come across a cache of Confederate gunpowder or cannon, it would be preposterous to expect that he would return such contraband of war to the rebel forces. Butler claimed the slaves were no different; they, too, were contraband and he would not return them to the southern side.135 Again, Butler used his enemy’s own logic against it, arguing that slaves were property, and used to aid in the enemy war effort. As such, he determined he should not return them. Indeed, a Confederate officer appeared under flag of truce, someone Butler knew from his days as a politician and who was acting as an emissary of the Confederate Colonel who claimed ownership of the slaves, and sought to reclaim the slaves and enforce the Fugitive Slave Act, Butler refused.136 According to Butler’s autobiography, he told the adversary the following: “‘I mean to take Virginia at her word, as declared in the ordinance of secession passed yesterday. I am under no constitutional obligations to a foreign country, which Virginia now claims to be.’”137 Butler’s position would anger abolitionists, like Frederick Douglass, who proclaimed that these escaped slaves were not to be considered contraband, as if they were pistols,138 nevertheless, Butler’s clever use of the Southern arguments to undermine their position seemed to offer a basis upon which Butler could conclude he was under no obligation to return the escaped slaves. What it would also do would solve a problem that President Lincoln faced: how to hold his coalition together, i.e., his collection of factions that included those who wanted to abolish slavery and those who wanted to save the Union. The value of this decision for assuaging the different factions within Lincoln’s coalition was not lost on an editorial published in the Atlantic Monthly at the time:

There is often great virtue in such technical phrases in shaping public opinion. They commend practical action to a class of minds little developed in the direction of the sentiments, which would be repelled by formulas of a broader and nobler import. The venerable gentleman, who wears gold spectacles and reads a conservative daily, prefers confiscation to emancipation. He is reluctant to have slaves declared freemen, but has no objection to their being declared contrabands. His whole nature rises in insurrection when Beecher preaches in a sermon that a thing out to be done because it is a duty, but he yields gracefully when Butler issues an order commanding it to be done because it is a military necessity.139

Nevertheless, Butler’s position put the other lawyer I will highlight in this example, Abraham Lincoln, in another uncomfortable spot, as Frémont had months earlier. As said, Lincoln had a fragile coalition of unionists who were supporting the war effort to preserve the republic, and abolitionists who believed it was a crusade to end slavery.140 Lincoln needed some way to tie this coalition together and he would consider the question whether bringing escaped slaves and free blacks into the war effort by arming them and forming black regiments to fight on the Union side.141 He knew he was depleting his stock of eligible fighting men in the North and saw the opportunity that presented itself of recruiting thousands of blacks to join the war effort. But he knew also that he would have to take steps toward freeing the slaves, at least escaped slaves and those liberated from southern territories, in order to offer these potential recruits, and the abolitionists who supported such an effort, cause to support black enlistment.142 His policies toward slavery over the years had evolved. At times he would support colonization for freed slaves, and, at others, compensation for slave owners who would be forced to give up their slaves.143 Lincoln would ultimately settle on the notion that in order to keep his coalition together, he would need to both support the enlistment of black troops while giving them and their supporters reason to enlist. This would satisfy the unionists who would recognize the need to recruit black troops to support the war effort and the desire of the abolitionists to end slavery, at least in the South.144 This two-pronged approach would culminate in the drafting of Lincoln’s Emancipation Proclamation, which would free slaves in occupied territories and those who escaped to Union lines (a recognition, in a way, of the predicament in which Butler found himself and a nod to his on-the-fly solution). But Lincoln still faced another hurdle before he could release the Proclamation.

The Union war effort had stalled. General McLellan’s campaign to strike decisively at the heart of the Confederacy had ground to a frustrating halt on the Virginia peninsula.145 Grant had not yet emerged as the brilliant and dogged tactician he would prove to be in subsequent years and his campaign in the Mississippi was not going well.146 The major foreign powers of Great Britain and France watched developments in the war with great interest, poised to recognize the Confederacy, if not aid it outright, if it appeared that the South might be able to secure some kind of brokered peace and remain intact.147 Were Lincoln to release the Emancipation Proclamation at a point the Union war effort was going poorly, he might seem weak, and its issuance a desperate, last-ditch effort to alter the course of the war. Lincoln needed a victory on the battlefield to give him an opening in which he could issue the proclamation, and he would get one when Robert E. Lee would test the Union resolve in a march on Maryland, a slave state that, the Southern general felt, might welcome Confederate troops as heroes as opposed to invaders. Such a move would also likely have the effect of drawing McLellan’s troops away from their likely march on Richmond, should the “Little Napoleon,” as he was called, ever exhibit any of the French emperor’s aggressiveness on the battlefield (he would not). McLellan’s forces would clash with Lee’s near the tiny town of Antietam in Maryland, which would ultimately lend its name to the bloody melee that would ensue there.148 While historians often consider the battle a stalemate, Lee’s retreat from the field, after both sides suffered heavy losses, gave Lincoln the opportunity he needed to claim victory and issue the Emancipation Proclamation at one of the few high points of the war for the North, at least to that point.149 What this edict would do would help unite Lincoln’s fragile coalition around the cause of ending slavery because it was through the effort to end slavery, in Lincoln’s eyes, that would ultimately bring about the preservation of the Union.

Lincoln’s chosen tactics in promoting abolition, at least in the Confederate states, was consistent with a prior statement on the interplay between abolition and maintaining the integrity of the nation. In a letter to abolitionist publisher Horace Greeley, Lincoln emphasized that his primary goal was to save the Union. To do so, he believed he needed to end slavery. Thus, his war aims, and those of the abolitionists who sought to end slavery, would converge.

My paramount object in this struggle is to save the Union, and not either to save or destroy slavery.

If I could save the Union without freeing any slave, I would do it; if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that.

What I do about slavery and the coloured race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.150

Lincoln’s issuance of the Emancipation Proclamation was consistent with this approach. It satisfied the abolitionists, for sure, but also tied the unionists to the abolitionist cause by linking emancipation directly to the war effort. As one excerpt of the proclamation reads:

And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.151

Lincoln, the tactician, proved adept, and creative, at using a legal strategy—here, the Emancipation Proclamation—and timing it in light of a major development in the war (the battle of Antietam), to help achieve what would appear to have been his ultimate social change goal: preservation of the Union.

Of course, the cause of civil rights would not end with the victory of Union forces, or even passage of the Reconstruction Amendments to the Constitution. The next example to highlight is the effort to end Jim Crow segregation, which followed the collapse of the effort at reforming the South in the wake of Reconstruction. 152

B. Lawyers and the End of Jim Crow

Unlike most discussions of this legal campaign, hatched in the offices of the NAACP Legal Defense Fund (LDF) and those of other legal allies, I will not start with a discussion of the landmark case of Brown v. Board of Education, in which the Supreme Court ruled unanimously that segregation in educational institutions violated the Equal Protection Clause of the 5th and 14th Amendments to the Constitution, which would spell the beginning of the end of the institutional edifice of Jim Crow.153 The paradigm of social change litigation through which the lawyers would take direct legal aim at segregation in a broad-based challenge to the practice, would have its predecessors in more modest, incremental, and narrowly crafted challenges to other institutions in an effort to build the legal case that might serve as a base that could help launch the broader attack with success.154

Hemann Sweatt was a postman in Texas who wanted to go to law school in the late 1940s.155 The problem was, there were no law schools in the state of Texas that admitted African Americans. Sweatt would submit his application to the University of Texas School of Law, asserting that, since the state university system did not have a separate law school for African Americans, the law school that system did operate had to admit him.156 The state hastily put together what it would try to call a law school, but that entity would have no full-time faculty (it would “borrow” faculty from the main law school), no law books, no alumni base, and was unaccredited.157 The LDF would challenge the university’s solution to the Sweatt application, arguing that, yes, segregation was unconstitutional. The lawyers also had a fallback position, however. They would argue that, taking the holding in Plessy seriously, the university system was obligated, if it was planning on offering separate institutions, those institutions also had to be equal.

By any objective measure, the law school for African Americans was in no way equal to that offered to white students in the University of Texas system. The unaccredited school for African Americans with no faculty and essentially no students and no books could not measure up to the University of Texas’s school of law, which had 850 students, a vast alumni network, 65,000 books in its library, and was fully accredited.158 Even when the case had gone to trial and the law school for African Americans had 23 students, five full-time faculty, and 10,000 books, it still could not compare in quality or degree to the opportunities afforded the students enrolled in the all-white institution.159 Even putting aside these objective measures, the LDF lawyers also argued that a law school is so much more than the books in its library or the physical accommodations. A law school is a platform for knowledge exchange and a network that creates mentorships and job opportunities for its students. It connects those students to the bench and the broader practicing bar. A good law school is more than just the sum of its parts and develops value to its students because of the relationship of those parts to each other and to the broader community. A law school with fewer faculty, no alumni network, and weak ties to the broader community could not possibly afford its students the same opportunities that the University of Texas’s law school for whites offered its students.160

While the lawyers knew all these things about the qualities that make a great law school, they knew something else as well. They intuited that the judges would also know this about a law school.161 The judges before whom such a case would come would all have gone to law school, would all know the ineffable qualities of a good law school, and they could compare the extent to which two law schools were comparable along these difficult-tomeasure metrics. While the LDF had tried to bring other, somewhat successful lawsuits challenging segregation in other graduate and professional schools, it was the action filed against segregation in a separate and unequal law school where they would gain the greatest legal traction.162 While they would certainly include a direct challenge to segregation itself, and they enlisted the support of an anthropologist (who was also a lawyer) to make the claim that segregation was itself stigmatizing (foreshadowing the arguments they would make in Brown), they would also rely on a secondary position that, even if one recognized that separate but equal was still the law of the land, and Plessy was good law, if one took Plessy seriously, the separate and clearly unequal institution set up as the law school for African Americans in the University of Texas law school would not pass muster.163 Moreover, by challenging the way in which segregation operated in an institution judges would understand well, the LDF lawyers made a brilliant tactical decision to appeal to the judge’s own appreciation for the special qualities upon which one can compare separate institutions, more so, perhaps than they might understand other institutions that the LDF might target. Ultimately, the Supreme Court would conclude, unanimously, in the Sweatt v. Painter decision, not that segregation was unconstitutional on its face, but, rather, that the operation of a separate—and clearly unequal—law school for African Americans could not pass constitutional muster.

One of these reasons—apart from the objective criteria—that the Court reached this conclusion was that it was “more important” that the law school for whites “possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school.”164 These qualities included, but were not limited to the following: the “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.”165 While the Court could easily differentiate the two schools along objective criteria, concluding that “[i]t is difficult to believe that one who had a free choice between these law schools would consider the question close.”166 Moreover, “[f]ew students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.”167 The school for African Americans “excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar.”168 For these reasons, the Court could not conclude “that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.”169

In many ways, this incremental challenge to segregation would ultimately set the stage for the lawyers’ work that followed in bringing the broader challenges to segregation in primary and secondary educational institutions in several jurisdictions across the country, which would culminate in the victory in Brown. In those challenges, the LDF lawyers would bring in experts from other disciplines, like sociology, to establish that segregation had a stigmatizing effect.170 They would build on the arguments made in Sweatt that separate was inherently unequal, and, once again, the Supreme Court would rule unanimously in their favor, this time concluding that separate but equal would no longer stand.

C. Lawyers and Marriage Equality

The final example to use here is the work of the lawyers who helped to lead the successful campaign for recognition of marriage equality for the LGBTQ community. That campaign, which was really many campaigns, the first of which was launched in the early 1990s in Hawaii, proceeded in fits and starts. There were victories in the courts in Hawaii, Vermont, and Massachusetts, on state constitutional grounds, but at least some of those victories were undermined by legislative action, or the work of advocacy groups that organized ballot initiatives to overrule those courts by adopting constitutional amendments that barred recognition of same-sex marriage.171 In addition, fear that states would be expected to recognize same-sex marriages in states where they were legal prompted Congress to take legislative action and pass the Defense of Marriage Act (DOMA),172 which would attempt to offer states protection from such a requirement and ensure that the federal government would not be expected to recognize marriage rights for same-sex couples with respect to a range of federal benefits that accrued to married heterosexuals. Moreover, the forces aligned against marriage equality gained enough momentum that they would seek to introduce anti-same-sex marriage ballot initiatives in many states, mostly timed to generate conservative voter turnout for the 2004 presidential election year.173 Most of these ballot initiatives would succeed.174 When conservative groups sought to promote a ballot initiative in California, a deeply liberal state, many thought they had gone too far, and that the voters of the state would reject it.175

On election night 2008, when the nation was electing its first AfricanAmerican president, and voters in California voted overwhelmingly in his favor, they would also pass so-called Proposition 8, which banned same-sex marriage in the state.176 This came as a shock to advocates for same-sex marriage across the nation and led them to take stock of their efforts and consider what, if anything, they might do differently in the future to promote same-sex marriage and rebound from this devastating defeat.177

Advocates in the LGBTQ community and their allies conducted a review of their efforts to defeat Proposition 8. They worked with researchers to conduct focus groups and surveys of voters to assess what they had done wrong and how they might change their strategies and tactics. This review produced startling results.178 They learned that the way they had been going about promoting same-sex marriage was all wrong. They had made legalistic arguments, like same-sex couples were denied hospital visiting privileges and other benefits granted heterosexual couples. These types of arguments, they would learn, left many potential allies cold and led them to believe that the advocates were seeking something different from what heterosexual couples achieved through marriage.179 Voters told them they thought the advocates were looking for special treatment for same-sex couples. For the advocates, nothing could be farther from the truth. Indeed, what the advocates wanted was simply equal treatment: i.e., marriage equality. 180 They took this feedback to heart and began to shift their message in subtle yet powerful ways. They would begin to advocate for marriage equality, not same-sex marriage. They would stress that what the LQBTQ community wanted was equal recognition of their relationships and equal access to the institution of marriage, on the same terms as heterosexual couples. This subtle shift would begin to turn the tide.181

In addition to the shift in messaging, as with the desegregation litigation, legal advocates challenging Proposition 8 in the courts would deploy expert witnesses from the disciplines of sociology and psychology to undermine the key arguments of the ballot initiative’s supporters.182

In 2012, just four years after the devastating loss in California, they would win ballot initiatives in Maine, Minnesota, Maryland and Washington State.183 Two years later, they would win a challenge to certain core aspects of DOMA in U.S. v. Windsor. 184 Finally, in 2015, they would win the landmark Obergefell v. Hodges, 185 which would establish that states could not deny members of the LGBTQ community access to marriage. Justice Kennedy, speaking for the majority, would side with those who favored the marriage equality arguments as opposed to the “special treatment” arguments that preceded the loss in the Proposition 8 fight:

[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.186

The triumph of the marriage equality campaign follows a tradition of creative lawyering for social change that dates back to the Civil War era, and even to the framing of the U.S. Constitution. I have used three examples of lawyers who contributed to successful efforts to bring about social change. Are there common lessons that one can draw from these experiences? The next Part addresses this question.

III. A TAXONOMY OF CREATIVE SOCIAL CHANGE LAWYERING

This review of the role of lawyers in the campaign to end slavery in the United States, defeat Jim Crow, and advance the cause of marriage equality for the LGBTQ community reveals some common themes of such work and the ways in which lawyers working for social change can adopt creative strategies for promoting that change. As the following discussion shows, some of these themes include that the work is often incremental and iterative; it involves what is sometimes referred to as “reframing” – looking at issues in new, and different ways, especially the arguments of one’s opponents; it often borrows from other disciplines; it seeks out opportunities for interest convergence among otherwise disparate groups; and it does not operate in a vacuum in that it is often conscious of corresponding events in society that might have a bearing on the ways in which legal strategies will be perceived and whether they will be supported at a particular point in time. I will discuss each of these characteristics, in turn, below.

A. Incremental, Iterative Advocacy

Probably the main common feature of these three examples of creative lawyering is that each involved incremental and iterative steps. For the end of slavery, while the factions within Lincoln’s fragile coalition may have disagreed about what the North’s goals should be, the smaller steps taken to address the issue of escaped slaves finding themselves among Union troops helped to lay the ground work for what would ultimately become the Emancipation Proclamation, and, at the conclusion of the war, adoption of the 13th Amendment during Reconstruction. Lincoln did not announce an end to slavery at the outset of the war. If he had done so, he might have faced the prospect of the border states that had both remained slave holding but also stayed in the Union deciding to secede, or at least not supporting the war effort. Similarly, conservatives in the North might have aligned themselves behind the war effort for the purpose of preserving the Union, but might not have embraced such an effort if it was perceived as primarily a campaign to end slavery. The incremental steps taken by Union generals like Frémont and, more effectively, the attorney and fortress commander General Butler, helped lay the groundwork for the Emancipation Proclamation, where Lincoln was able to satisfy different elements of his fragile coalition. It was only through this incremental, iterative strategy that showed that doing nothing about slavery would be unacceptable to the abolitionists, but Frémont’s strategy went too far for some. In the end, Butler’s approach seemed to be “just right”, a balancing of interests that tied abolition to the war effort. This type of approach, accomplished through experimentation and iteration, may have helped show Lincoln the way forward, by revealing a strategy that would bind the different fractious elements of his ruling coalition.

Similarly, the LDF’s iterative, incremental approach also helped to lay the groundwork for the campaign that would ultimately succeed, bringing about the victory in Brown v. Board of Education and an end to Jim Crow in education, and which would help light a fire among the activists that helped them bring about changes in public accommodations, housing, and voting through legislative victories, the organizing for which had been prompted by the end of separate but equal. The LDF lawyers in Sweatt and other, similar cases, took on smaller, individual institutions rather than those they would assail in the collection of cases that would lead to Brown, which attacked the broader edifice of Jim Crow. While these lawyers certainly challenged Jim Crow directly, cases like Sweatt afforded the judges before whom the cases were filed an opportunity to slowly chip away at the broader system. By filing this sort of smaller, probing attack against an institution like a law school, an institution the judges would understand, they made it possible to show that a school system would have a hard time offering separate and equal institutions.

Incrementalism also helps advocates develop different types of arguments, field test them, explore how well they are received by a wider audience, and bring back the feedback from such efforts to further hone those arguments in broader contexts. In many ways, this iterative, incremental approach is akin to the concept known as “design thinking,”187 which is sometimes seen as having four, main components: inspiration; synthesis; ideation and experimentation; and implementation.188 The inspiration phase is investigatory. It involves communicating with those who are most affected by a problem or issue to work with them to explore potential solutions.189 Once the inspiration phase is complete (although, in some ways, it is never really complete), the design thinker moves into the ideation and experimentation phase where prototypes are developed and field-tested to assess their effectiveness in terms of addressing the problem at hand.190 The results of this rapid prototyping help to create a feedback loop and the original efforts and tactics are then altered in response to the data received through the successes and failures of those prototypes to create new prototypes and run new experiments.191 After successful prototyping, a finished product or idea can go “mainstream,” although the experimentation, iteration, feedback, and modification is an ongoing process.192 This design-thinking approach is similar to how Linda Morton describes legal creative problem solving. That process, for her, includes identification of the problem, understanding it, posing solutions, choosing solutions, implementing solutions, and engaging in a final analysis of such solutions.193 Similarly, the ABA, in its 1992 report, identifies several technical steps related to problem solving, including identification of the problem, the generation of solutions to the problem, developing and implementing a plan of action, and remaining open to new information and ideas.194

A design-thinking approach to creative problem solving would seem perfectly suited for social change advocacy in the legal context.195 Lawyers can gather the perspectives of their clients to understand the problem they are trying to solve and begin to develop solutions to such problems, can prototype potential solutions based on that fact-finding process, can launch “prototypes” of such solutions into the world to see how they fare and bring feedback from those efforts to craft more robust solutions, and then can take more dramatic steps based on those iterated prototypes and the lessons learned from the prototyping process and the feedback loop it generates. 196

B. Interpretive Creativity

We also see in these examples that the creative lawyers seeking social change engaged in a degree of interpretative creativity, often re-framing the legal issues in new ways or borrowing from their opponents’ arguments and using such arguments against them. Menkel-Meadow calls this notion of reframing finding new “entry points”: a new way of looking at a problem from different perspectives.197 Of course, many lawyers spend much of their time interpreting statutes, regulations, contracts, and behavior in light of all three, but social change lawyers are often in a more difficult position than the traditional lawyer because their paths to interpretative success are narrower. They are trying to change the status quo and alter the legal infrastructure that governs behavior within that status quo. Common interpretations of the scope and contours of that infrastructure gain some interpretive force because of the widely shared and widely accepted understandings of their meaning. Of course, this forces the social change lawyer to be more creative in her interpretive efforts, and can leave her with little choice but to attempt to seize upon her opponents’ arguments, embrace them, and bend them to support the social change lawyer’s position.198

This is often apparent in many efforts by lawyers to advance social change. They may have little support for their own positions so they turn to the positions of their opponents to show the hypocrisy of them, or the fact that they are based on weak legal force themselves. This is often an important asset for the social change advocate fighting long odds. Malcolm Gladwell, in his work, David and Goliath: Underdogs, Misfits, and the Art of Battling Giants, points out that our perception of power asymmetries are often wrong. The very qualities that may appear to give strength to a dominant individual or entity are often a source of “great weakness.”199 The Biblical Goliath was weighted down by his bulk and heavy armor.200 Turkish fortifications were easily overrun by Lawrence of Arabia’s nimble Bedouin cavalry.201 For the social change lawyer, when the arguments of her [their] adversary, that may have enjoyed support from what may be seen as common sense arguments, are held up to rigorous analysis, they often collapse under their own weight.

In the decades leading up to the decision in Obergefell, advocates for the rights of the LGBTQ community won victories in the Supreme Court showing that a state constitutional amendment in Colorado stripping local communities of the ability to pass pro-LQBTQ rights ordinances, and laws against sodomy, were based on little more than the moral preferences of legislators that could not withstand careful scrutiny.202 Similarly, in the state courts of New York, a legal definition of family that appeared based on little more than “traditional” notions, with no basis in law, failed to recognize the many ways in which families form and their members recognize themselves as such.203 The arguments supporting the opponents’ position may have been, at one time, consistent with the common sensibilities of some portion of the population and may have, at one time, seemed inevitable and subject to little criticism. When analyzed for their source and their logic, however, these arguments proved insufficient to support discriminatory treatment through the force of law.

At the same time, if the force of the common sense support for the opponent’s position is too strong to overcome through a direct attack, the social change lawyer often uses her opponents’ own arguments against them. We saw this in Butler’s controversial cooption of Southern arguments about property and secession in order to justify his refusal to enforce the Fugitive Slave Act. Similarly, although the LDF would challenge segregation directly in Sweatt, they also tried another line of argument: that, even accepting separate but equal as the law of the land, the separate law school for African Americans was not, in fact, equal by any measure. Thus, forcing their opponents to defend their own position, it became untenable on the facts.

Artist Pablo Picasso is sometimes quoted as having said that “good artists copy, great artists steal.”204 Perhaps the best, most creative social change lawyers also steal—they just steal from their opponents.

C. Interdisciplinary Approaches

Another common feature of the social change efforts highlight here is that lawyers in at least two of the three examples, the LDF lawyers and the marriage equality advocates, explicitly incorporated interdisciplinary approaches in their advocacy.205 Thurgood Marshall would bring together sociologist, historians, political scientists, educators and anthropologists when planning the anti-segregation strategy.206 The Sweatt trial, like those that would lead to the Supreme Court’s decision in Brown that would follow, included expert testimony from another discipline. In fact, anthropologist Robert Redfield, chairman of the Department of Anthropology at the University of Chicago, himself embodied interdisciplinarity: he held a doctorate in Anthropology as well as a law degree.207 Redfield would testify about the lack of differences in the educational capacity of African Americans as compared to whites as well as the dangers of segregation in education, particularly as they related to the price that society pays for the distrust segregation creates among the population. 208 In Brown, Thurgood Marshall and the legal team would utilize the research and testimony of psychiatrist Frederic Wertham and sociologist Kenneth B. Clark to show the harmful effects of segregation on African-American children.209

In the marriage equality litigation, expert witnesses were used in trial courts to show the complete lack of evidence to support the opponents’ positions that marriage could not be open to same-sex couples because, the opponents argued, children did not fare well when reared in families headed by parents of the same sex.210 In addition, in the wake of the failure to defeat Proposition 8, advocates enlisted the support of researchers in surveying and conducting focus groups to understand the failure of the campaign’s messaging strategies.211

In many ways, the social change lawyer’s use of interdisciplinary strategies builds on the iterative and interpretative approaches described above in that it helps to reframe arguments and tests other theories against perceived wisdom and common understandings of the law and society that may need to change in order to bring about wider social change. Such interdisciplinary approaches are not new, as Louis Brandeis, then a practicing lawyer in the early 20th century, utilized social science to support his legal claims.212 By incorporating disciplines other than law, social change advocates widen their own lens when they view a problem and start to begin to see legal issues in a different light, which then helps them frame their arguments and present new theories and new ways of looking at the world to judges, juries, policymakers, legislators and the general public. In turn, these theories, informed by interdisciplinary views, might find an audience more receptive to these arguments because they help that audience see the law in different ways, undermining traditional understandings and interpretations of the law and social relations. Those new understandings and interpretations can lead to the social change the lawyer and those she serves may seek to bring about.

D. Interest Convergence

The lawyers for the Civil Rights Movement and President Lincoln knew not only that they could build a coalition to achieve their social change goals, but that they had to do so, and they both crafted these coalitions around the interests different members and groups shared. This convergence of interest helped to build and sustain critical coalitions necessary to support and advance the social change movement leaders and their lawyers wanted to bring about. The late Derrick Bell first identified the notion that interest convergence could justify changes to our collective understanding of constitutional law. Bell first articulated his Interest-Convergence Theory in response to Herbert Wechsler’s argument critiquing the Court’s decision in Brown. Weschler argued that Brown was not supportable by what he called “neutral principles”: when a court “reach[es] judgment on analysis and reasons quite transcending the immediate result that is achieved.”213 Wechsler argued that promoting the freedom of association of blacks could not undermine the freedom of association of whites.214

Countering Weschler, Bell asserted that the shared interests between the black community and a large proportion of the white community justified the decision in Brown. 215 For Bell, the interests of blacks (and others) in seeking an end to segregation aligned with national white elites who were concerned with the U.S. standing in the world, particularly as it sought to maintain its influence in post-colonial nations where the Soviet Union was using the Jim Crow system as a wedge between the U.S. and potential allies.216 Mary Dudziak’s archival research lends ample support for Bell’s explanation of the forces that aligned to bring about the unanimous decision in Brown. 217

Bell utilized Interest-Convergence Theory in order to explain and justify the Court’s decision in Brown. Some have taken this theory a step farther, as a way to not just understand but also to promote social change generally: when one wants to advance social change, one should look for an alignment of interests among different factions and communities and seek out ways to build coalitions around such interests. 218 The theory itself is not above critique, however, and it is argued that it is flawed in that it appears to discount the agency of advocates in spurring social change, suggesting that one needs to wait for interests to converge to bring about social change.219 But lawyers who seek to support efforts to bring about social change can turn to Interest-Convergence Theory as an organizing principle and guide, and work with clients and partners to be the agents of that change.

While Bell identified the convergence of interests at the center of the Civil Rights Movement’s advocacy, this idea appears in the two other examples described above. First, Lincoln tied an end to slavery to preserving the union. In order to hold his coalition together, he knew he needed to address the slavery question and seek to bring about its end. He could only go so far with his Emancipation Proclamation, however, and slavery was not abolished in the border states that both maintained slaveholding yet remained loyal to the union. For those who saw victory on the battle field as essential to preserving the union, freeing the slaves in confederate states and territories occupied by Union forces increased the number of eligible males available to serve as troops in the Union army. The North’s martial strategy, particularly in the latter years of the conflict, was to field much larger armies, attack Southern forces at as many points as possible to test their capacity, and to strike at critical transportation and supply hubs.220 Each aspect of this strategy needed as many troops as possible, and Lincoln knew that he could increase recruitment by making former slaves available to join the army in order to carry out these strategic goals. The Emancipation Proclamation would ultimately satisfy his coalition’s goals by tying the abolition of slavery to the goal of preserving the union.

For the marriage equality advocates, within the LGBTQ movement generally there was not always support for the effort to promote same-sex marriage rights. As Nathaniel Frank recounts in his work Awakening: How Gays and Lesbians Brought Marriage Equality to America, 221 members of the more radical elements of the LGBTQ movement did not support the effort to recognize same-sex marriages initially, but different strains of the movement would ultimately coalesce around the idea of marriage equality as a way to accomplish broader protections for the community, gain respect, counter discrimination, and attain cultural acceptance of LQBTQ members and relationships. 222 This sort of interest convergence also occurred outside the movement itself as well. After President Obama signaled his support for marriage equality, the NAACP announced its own support for the effort, which represented a shift for the African-American community after the results of the Proposition 8 vote in California showed communities of color narrowly supporting the ban.223 For the NAACP, they identified a robust interpretation of the Equal Protection Clause of the Constitution, which is what the marriage equality advocates sought, as consistent with their own interests and their own views on the applicable constitutional protections.224 In each of these situations, Bell’s Interest-Convergence approach seems to represent an aspect of the lawyers’ strategy: keep fragile coalitions together, and bring new groups into the coalition, through the thoughtful curation of shared interests.

E. Interdependence

Similarly, the legal advocates in each of these situations did not advocate in a vacuum and were always conscious of events and trends in the culture and society generally. Lincoln waited for a victory on the battle field before he released the Emancipation Proclamation. A deeply religious man, he is sometimes described as waiting for a victory because he sought a spiritual sign that his cause was just.225 He and his cabinet advisors were also keenly aware that release of the proclamation when the North was losing the war would be seen as an act of desperation.226 Lincoln’s willingness to create a new legal approach to slaves that had escaped lands controlled by Confederate forces was in some ways beholden to the larger forces at play as he considered the proclamation’s release. Moreover, Lincoln would strike a delicate balance in the manner and timing of the issuance of the proclamation, particularly as it related to both enhancing the northern forces’ capacity to recruit more able-bodied soldiers as well as preserving the slaveholding status of loyal border states.

With the lawyers supporting the Civil Rights Movement, they were keenly aware of the predicament in which national leaders found themselves on the geopolitical stage. They exploited the fact that the standing of the U.S. with developing nations while the country was engaged in competition with Soviet Bloc countries for global influence.227 Throughout the course of the Civil Rights Movement’s struggle in the courts and as the movement went from the courts to the streets and the halls of Congress in the 1960s, the national security and foreign policy components of the civil rights strategy played a role in the movement’s advocacy to bring about legislative changes to private accommodations, housing, and voting rights. This aspect of the strategy was not lost on national leaders. In a conversation with Dr. Martin Luther King, Jr., President Lyndon Johnson praised his legislative efforts in promoting civil rights, referencing the Civil Rights Act of 1964, as follows: “I think the greatest achievement in foreign policy [of the Johnson administration]…was the passage of the 1964 Civil Rights Act.” 228

Progressive advocates have also shifted their focus away from the federal courts in many instances as a reaction to the ways in which the federal judiciary has become more conservative since the Reagan Administration began to use the judicial appointment power to select more overtly partisan judges, something that continued through the presidency of George W. Bush, and has proceeded apace during the Trump Administration. As a part of this campaign, at least originally, Reagan Administration officials sought to curtail the type of social change litigation, like Brown, that came to be known as public law litigation.229 This effort was designed to protect not just federal actors from judicial oversight, but also state and local government allies of the Administration, from judicial intervention in their practices.230 In what Derrick Bell might call an interest convergence, pro-business forces also advocated for relief from litigation.231 Finally, members of the judiciary, for political reasons or out of a desire to control their own dockets, sought mechanisms for reining in many different types of litigation, including public law/social change litigation.232 Indeed, in decisions such as Bell Atlantic v. Twombly233 and Ashcroft v. Iqbal, 234 the Supreme Court altered the rules of pleading to require litigants to set forth their claims and defenses with such specificity that they might render such claims “plausible” in the eyes of the judge. 235 Second, courts have made the dispositive remedy of summary judgment more readily available by interpreting Rule 56 of the Rules more favorably for moving parties so that they might avoid trial on the merits. 236 Third, courts have interpreted fee-shifting statutes more narrowly than in the past, making contingency fee cases less attractive to the private bar. 237 Fourth, courts have taken a more expansive view of government immunity for both state and local officials.238 In addition, courts have raised the standard for certifying expert witnesses,239 made class actions more difficult to commence and sustain,240 recognized the enforceability of arbitration clauses, 241 and refused to engage in oversight of institutions that are the subject of reform litigation.242 Owen Fiss has described these and other trend away from public law litigation as a “counterrevolution” in the courts. 243 As a result, in many instances, progressive lawyers have had to explore tactics for promoting progressive social change objectives other than through the filing of highprofile impact litigation in the federal courts.

In many ways, the fact that the federal courts have become more hostile to public law litigation in general, and, by extension, social change litigation in particular, has led to the type of pluralistic approaches that many social change lawyers are adopting, seeking out new avenues for redress and advocacy apart from looking solely to the federal courts as the venue for and the target of advocacy.244 While litigation is often a common tactic used by progressive lawyers, many have turned to state courts as the forum in which to litigate claims based on state constitutions and state law.245 But litigation alone is not the only tactic utilized by lawyers working for social change. They are also engaged in legislative advocacy,246 policy change,247 community development efforts through the provision of transactional legal services,248 and lending support to grassroots organizing.249

Since the Brown litigation preceded this conservative backlash in the courts, and, some would argue, was the reason for it,250 we must turn to the tactics of the marriage equality movement to assess whether this turning away from federal courts is a part of that pluralistic tactical approach, embedded in a realpolitik that recognizes these wider trends in society in general and their ramifications on the federal judiciary. As we saw with Lincoln with Antietam and the civil rights advocates and their recognition of the role that foreign policy interests could play in applying pressure on the federal government to support their cause, the marriage equality advocates waited until the point where the wider aims could be served by litigating in federal court despite the obstacles described above, choosing to litigate in state courts, under state constitutional provisions, until the opportunity presented itself to bring the broader challenge to prohibitions on same-sex marriage under the U.S. Constitution. At the same time, the landmark cases of the LQBTG rights advocacy—Romer v. Evans, 251 Lawrence v. Texas, 252 U.S. v. Windsor, 253 and Obergefell v. Hodges254—were all filed in federal court and made their way to the U.S. Supreme Court. For each of these cases, a federal constitutional issue was at the heart of the litigation, and, even if the case had begun in state court, the Supreme Court would have been the ultimate arbiter of the claims. The litigants may have had a choice of where they might file the case, there was no doubt where the cases would ultimately end up. At the same time, with the painstaking, incremental work of the marriage equality advocacy, that work, seeking out strategic victories where they could find them in order to create a critical mass of victories at the state level, was, for the most part, carried out in state courts. From Hawaii to Massachusetts and Vermont, the marriage equality advocates, fearing resistance at the Supreme Court and the fact that the federal judiciary might not be ready to rule in their favor, filed lawsuits based mostly on state constitutional grounds. Thus, these advocates were not insensitive to the trends in the courts and wider society, and crafted strategies that were mindful of those trends when they decided the legal steps to advance the cause of marriage equality.255

The legal advocacy directed at social change described here seems to indicate that these highlighted efforts shared several common themes. These efforts were often incremental in nature. They required creativity in terms of the ways in which the advocates viewed the law. They often involved interdisciplinary approaches. The advocates sought out opportunities to build coalitions through finding common ground—referred to here as interest convergence—with likely and unlikely partners. And they viewed their work in the context of what was happening in the world outside of their advocacy, assessing their work in light of the broader social context and making tactical decisions based on that context. In the previous Part, I identified the challenges that lawyers working for social change and the extent to which those challenges require creativity. In the next and concluding Part, I will attempt to assess the extent to which these components of the three efforts to bring about social change I have highlighted here might offer ways for social change lawyers to overcome these challenges, through creativity.

IV. CREATIVITY AND THE SOCIAL CHANGE LAWYER

In Part II, I set forth some of the challenges lawyers must face when they try to bring about social change. We hope that such lawyers seek to make the lives of their clients—however they identify their clients—better, through efforts to create lasting social change that is meaningful to those clients. Such change work is challenging, however, precisely because it involves change: change to power relations, change to the status quo, change in the policies that impact clients. Those challenges include that, first, they must alter the existing laws and policies; they cannot simply work within existing legal frameworks, using tried-and-true, formulaic, and time-tested solutions to straightforward problems. Second, they must involve their clients and the communities they serve in the critical strategic decisions the lawyers make as they chart a course for the advocacy out of fear that the legal strategy and the process by which it is developed may further marginalize the clients. There is always a risk that lawyer-centric strategies may weaken and distract from community efforts to achieve self-determination and a more democratic society. Relying on elites like members of the legal profession to engage in social engineering that is not grounded in the lives and lived experience of the clients those lawyers ostensibly serve might actually perpetuate misunderstanding and marginalization, offering those communities victories they have not sought and changes that are not necessarily beneficial to them, further solidifying their outsider status. Lawyers for social change must also strive to avoid a backlash against their clients and the communities they represent, ensuring the ultimate goals of the representation are not undermined by short-term victories. Third, they must navigate between client demand and donor intent, finding ways to fit their work within the constraints of existing funding sources, or find ways to locate new financial support for work not supported by existing funding streams. Fourth, social change lawyers must balance the need to meet ongoing and direct needs of individual clients against the longer-term, law reform efforts that build the political power that is likely to bring about a re-ordering of social relations that are more just. Fifth, and related to the fourth challenge, social change lawyers must pursue complex goals and must do so on behalf of clients that are not always easily identified. Sixth, the social change lawyer might have to choose among a wider array of tactics than the traditional lawyer simply because she may be foreclosed from using tactics commonly utilized in most lawyering work. This limitation on tactics means that the lawyer must look for other means of achieving client goals.

The main point of this Article is that these challenges the lawyer faces when trying to serve her clients in advancing social change create complexities for the lawyer that go beyond those which the traditional lawyer faces when serving her client. Such complexities require creativity to address them and to serve the client with zeal to achieve the social change that will benefit that client. To what extent do the common features of the examples of successful social change lawyering I have provided here help chart a course for the social change lawyer? Do the common characteristics of these examples of social change lawyering offer techniques and tactics for bringing creativity to this work?

While iterative, incremental approaches help advocates hone better ideas, they also advance the cause of social change in a more just and democratic way by incorporating clients in the problem-solving effort. Incremental approaches can help to satisfy them, at least partially, on the way toward bringing about the larger strategic measures that might ultimately lead to the broader social change the lawyer seeks. Of course, some clients might express frustration by the conservative nature of an incremental approach, but incrementalism might turn out to serve the longer-term goals of the client and the client’s community better. Moreover, an incremental, iterative approaches should include clients in the inspiration and experimentation phases by consulting with them as the lawyers and clients together determine the proper course of action. The lawyer should engage those clients in developing the experimental arguments that the lawyer may utilize, helping to “crowdsource” the ideas that the lawyer will promote, likely leading to better ideas, but also investing the clients in the process itself, giving them confidence that the lawyer is taking the client’s problem seriously.256 In addition, the lawyer can balance the need for broader change with addressing the client’s immediate needs through incremental measures that are designed to test ideas that can build toward more wide ranging impacts in a way that helps alleviate the direct and immediate legal needs of the client. In this way, the lawyer can use incrementalism as a way to thread the needle between broader social change and meeting the urgent needs of the client while she is waiting for that broader change to transpire. The “test case” model is a perfect example of this. A lawyer has a client with facts that serve to exemplify the broader problem other clients and communities face, but the lawyer files a narrow case on that client’s behalf in the hope of testing out her arguments on the courts, hopefully finding ones that will address the client’s immediate needs while also garnering feedback about what arguments might resonate with the courts should a larger, more wide-ranging action follow.257

Incrementalism might also serve as an effective antidote to potential backlash: the reversal of victories or an erosion of rights that might come as opponents are energized by their own losses to harness their own collective energy and will to take action to counteract the strides made by the forces of social change. Taking small steps allows the community to begin to see what social change might look like, experience it, realize that the change is itself not all that different from the status quo, and to come to accept that change a small amount at a time. As more people begin to accept the change, even if at a slow pace, it gives opponents of the change a smaller base of support when they begin to mount their challenge to the change.

Another aspect of the creative social change lawyering described in Part II is that each of the lawyers engaged in the exercise so critical to lawyering generally and social change lawyering in particular: they utilized their interpretive powers to reframe issues, often seizing on the weaknesses of their opponents’ position and exploiting them. For the social change lawyer, her primary role in the context of efforts to bring about such change is to serve as the translator of legal concepts in ways that can support the social change she and her clients seek. What makes this aspect of social change lawyering so creative is that the lawyer often must face received wisdom and the controlling legal narratives of dominant interpretations of the law that help to maintain and preserve the status quo.258 Their dominance often leaves little room for outsider perspectives on the law to convince decision makers of the interpretation that the social change lawyer seeks. This is precisely why social change lawyers often must attempt a reassessment of the legal, sociological, ethical, moral, and factual bases and underpinnings of their opponents’ arguments. When faced with little room to maneuver, and few options to make the affirmative case on their clients’ behalf, the creative lawyer can seek to encourage a reassessment of the support of the opponents’ position. And in order to carry out this reassessment the lawyer deploys to tools of creativity described earlier, particularly reframing.259

But does this type of reframing, and reimagining, help to overcome some of the challenges the social change lawyer must overcome in pursuing such change? One of the main uses of this type of reframing is that it can often reaffirm the dignity of the community on whose behalf the lawyer is advocating. In the marriage equality litigation, reframing the issues helped to promote the interests of the LQBTQ community by undermining the arguments of the marriage equality opponents. In so doing, advocates destroyed the factual justifications for opposing marriage equality and helped to fight the stigma those justifications created. When marriage equality opponents said that heterosexual marriage needed the endorsement of the state in order to ensure procreation, marriage equality advocates argued that there were plenty of heterosexual couples who could not procreate: should the state not recognize their marriages then?260 When opponents argued that children needed heterosexual couples to raise them, marriage equality advocates presented overwhelming support for the proposition that children raised in same-sex households fared the same as those in households headed by heterosexual couples.261 Instead of further marginalizing and oppressing their client communities, the reframing of the issues helped to reaffirm the dignity of their LGBTQ clients and their families. Through creative reframing, the lawyers were able to overcome obstacles to the social change they sought, while also avoiding some of the deeper pitfalls of social change lawyering.

Admittedly, this is not always the case. Indeed, the reframing carried out by Benjamin Butler, when he called escaped slaves contraband, did not sit well with abolitionists who thought Butler was accepting the South’s view of slaves as property too readily, and this reframing undermined the efforts to recognize the humanity and dignity of the slaves themselves, the very individuals Butler was trying to protect and save. There is thus sometimes a risk that accepting the opponents’ position in an effort to undermine it can have the effect of further marginalizing and demeaning the very clients the lawyer seeks to serve. I do not know if anyone ever asked the escaped slave who presented themselves on Fort Monroe in the early days of the war whether they approved of Butler’s tactics. My guess is, they preferred freedom, but that is not to say that every interpretive act carried out by the social change lawyer will always advance the client’s interests, while also reaffirming her basic dignity and humanity.262 Thus, while reframing can offer social change lawyers an opportunity to advance their legal position, the process of identifying those arguments to make, how and when to make them, and to what ends, are issues that should always be addressed in collaboration with the client and the community the lawyer serves. That brings us back to the design thinking/incremental approach described above. To the extent the interpretive strategies deployed by the lawyer are carried out in collaboration with the client, it is likely to yield better results that are reaffirming of the client and effective in the course of the representation.

Similarly, by expanding the tools the lawyer uses to carry out these interpretive functions, the lawyer can create more creative strategies by developing an appreciation for the ways in which the dominant legal interpretation of particular social relations the lawyer is challenging cannot hold up when assessed under the scrutiny of other disciplines. By leaving the realm of law altogether, and seeking out support for one’s position from other disciplines, the social change lawyer is able to overcome the opponents’ dominant position and undermine it by looking at the problem in different ways, from different perspectives.263 These different perspectives help to reveal the weaknesses, inconsistencies, and baselessness of the assumptions that often underpin dominant narratives and interpretations of the law and social relations. By incorporating insights from different disciplines in creative ways, the social change lawyer identifies flaws in the dominant interpretation of the law and the extent to which those flaws often tend to find a basis in unsupportable stereotypical and discriminatory animus. By bringing in perspectives from other disciplines, the lawyer can reveal the narrowness of the thinking that supports the opponents’ position and use those perspectives to advance a richer understanding of the human experience and further the social change goals she seeks.264

One way to further those goals in creative ways is to help the clients and the communities the social change lawyers serves build power. A critical way in which she helps those communities build power is through creative coalition building. Central to creative coalition building is the notion that coalitions often form around shared interests, together with shared ways of viewing the world, which is sometimes referred to in the social science literature as “frame alignment.”265 The ability to identify those shared interests—to find opportunities where interests converge and align—requires creativity, an ability to sense opportunities for collaboration, and to craft a campaign’s message in such a way that it will attract supporters from as wide a section of the populace as possible. Such message crafting requires creativity, and a sense of the needs and interests of different sectors of society. That requires a willingness to seek out, stay attuned to, and listen for opportunities where one’s clients’ interests will align with other individuals and groups who might serve as potential allies and supporters. In many ways, the pursuit of such potential allies requires the tools of creativity as well: an ability to reframe ideas, to see things from different perspectives. In addition, by testing out theories through incremental steps, the social change lawyer can begin to identify potential allies and test out new theories that might bring new allies into the supportive fold. An example of this was the submission of an amicus brief filed on behalf of the U.S. military’s service academies266 in support of the University of Michigan in defense of the use of racial diversity in admissions decisions in Grutter v. Bollinger267 and Gratz v. Bollinger. 268 In these ways, some of the components of the social change lawyering described here can work together to identify and tap into where interests converge.