Abstract
Social scientists have conflicting views about the efficacy of social reform groups in American political life. McCarthy and Zald think that changed structural conditions — the increase in affluence, the growth of student and professional populations, and the use of mass media — have contributed to a massive expansion of social reform groups during the last decade (1)**. Theodore Lowi agrees that there has been a rise in social reform activity, but he assigns a different reason; it is the decay and failure of existing institutions that has produced the new surge of reform activity in the United States (2). Lowi, and others, however, are pessimistic about the efficacy of reform activity, in bringing about meaningful social change (3). Mancur Olsen, Jr., argues that large social reform groups are inherently weak, unable to counter the political power of smaller, special interest groups (4).
A.B. Princeton University, 1954; J.D., Harvard University, 1957; Professor of Law, Wisconsin Law School; Institute Fellow, Institute for Research on Poverty, University of Wisconsin.
This paper was prepared for the Conference on the Sociology of judicial Process, Center for Interdisciplinary Research, University of Bielefeld, Bielefeld, West Germany, September 24–28, 1973. The research was supported by the Institute for Research on Poverty, University of Wisconsin pursuant to the provisions of the Economic Opportunity Act of 1964. The conclusions are the sole responsibility of the author.
I wish to express my appreciation to Gloria W. Handler and Michael Nowakowski for their very valuable research assistance.
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Notes
John D. McCarthy and Mayer N. Zald, The Trend of Social Movements in America: Professionalization and Resource Mobilization (1973).
Theodore J. Lowi, The Politics of Disorder (1971).
See William E. Connolly (ed.), The Bias of Pluralism (1969).
Mancur Olson, Jr., The Logic of Collective Action — Public Goods and the Theory of Groups (1965).
Clement Vose, Constitutional Change (1972).
See Robert McCloskey, The Modern Supreme Court (1972), P. 345.
NAACP v. Button, 371 U.S. 415 (1963).
U.S. 483 (1954).
See McCloskey, supra, pp. 338–341.
U.S. 186 (1962).
See McCloskey, supra, p. 342; Powell v. McCormack, 395 U.S. 486 (1969).
NAACP v. Alabama, 357 U.S. 449 (1958); see Griswold v. Connecticut, 381 U.S. 479 (1965) (doctor has standing to assert constitutional rights of patients); Dombrowski v. Pfister, 380 U.S. 479 (1965). See Edgar Cahn, Law in the Consumer Perspective, 112 U. Pa. L. Rev. 1 (1963).
See Harper v. Virginia Board of Elections, 383 U.S. 663, 667. See also Reynolds v. Sims, 377 U.S. 533 (1964).
See Greene v. McElroy, 360 U.S. 474 (1959); Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969); Shelton v. Tucker, 364 U.S. 479 (1960); Goldberg v. Kelly, 397 U.S. 254 (1970).
See, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963); NAACP v. Alabama, 357 U.S. 449 (1958); N.Y. Times v. Sullivan, 376 U.S. 254 (1964).
Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424 (1962).
See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Vemer, 374 U.S. 398 (1963).
See Morlis James, The People’s Lawyers (1973), Introduction; Philip C. Kazanjian, Preparing for the Law: A Look at the New Breed, 17 Student Law Journal, No. 7 (April 1972); Wendy Moonan and Tom Goldstein, “The New Lawyer” in The New Professinals (1972); Peter Vanderwicken, “The Angry Young Lawyers”, Fortune, September, 1971.
F. 2d 608 (2d Cir. 1965).
For a discussion of the tactics, including litigation, used by social reform groups in one community, see Kenneth E. McNeil, Citizens as Brokers: Cooptation in an Urban Setting (unpublished Ph.D. dissertation, 1973, Vanderbilt University).
Data on the Black Panther Party was obtained from the following sources: Robert L. Allen, Black Awakening in Capitalist America (1970); The Black Panther, Intercommunal News Service, Black Panther Party; Sara Blackburn, White Justice (1971); Eldridge Cleaver, Post-Prison Writings and Speeches (1969); Phillip S. Foner, The Black Panther Speaks (1970); Lockwood Lee, Conversations with Eldridge Cleaver (1970); Reginald Major, The Panther Is a Black Cat (1971); Gene Marine, The Black Panthers (1969); Huey P. Newton, To Die For The People (1972); Revolutionary Suicide (1973); Bobby Seale, Seize the Time (1968); Jerome Skolnick, The Politics of Protest ( 1969 ); U.S. Congress, Committee on Internal Security, Black Panther Party Hearings (1970).
Foner, supra, p. 258.
See Otto Kirchheimer, Political Justice (1961); Theodore L. Becker (ed.), Political Trials (1971), XI—XVI; there are many examples of this kind of political trial. Kirchheimer says that according to Lenin, “The supreme rule of a political defense is propagation of the doctrine rather than the fate of the individual defendent”. Ibid., p. 245.
The Panthers first became prominent when they displayed their guns openly, announced a policy of self-denfense against the police, and began citizen patrols to observe police tactics and advise blacks of their rights. Their first confrontation with the police came when Newton, Seale, and some other members walked out of Party headquarters carrying guns. A policemen confronted them and demanded to know what they were doing with their guns. Newton refused to answer; the law, he felt, required only that a citizen give his name and address to an officer. Other police came and started harassing the crowd of blacks who had gathered to watch. Newton told the people that a citizen had the right to stay and observe an officer carrying out his duty as long as the citizen stayed a reasonable distance away and did not interfere. After further threats, Newton warned the police that if they tried to take away his gun or shoot at him, he would shoot back. The police then gave in and left. The impact of this confrontation on the black community was electrifying. They had seen, as one Panther biographer said, “Something they had never seen before: black men, proud and dignified, daring to meet the white policemen on equal terma and face him down”. This initial confrontation brought in dozens of applications for membership. With more members, the Panthers increased their patrols of the police and began their program of advising the black community of their rights and offering free legal aid. During this initial period. the Panthers spent a great deal of time disseminating knowledge of legal rights (mostly in the criminal law area), the right of self-defense, and the promise that the Party would be available for protection. These were benefits to Party members, their friends and supporters in the black community because victimization, oppression, and arbitrary action by law enforcement people were among the most serious problems that blacks encountered. The Party grew rapidly during this period, and chapters were established in many major cities throughout the country.
Marine, supra, p. 43.
On SNCC, see the following: Stokely Carmichael and Charles Hamilton, Black Power (1967); Stokely Carmichael, “Who Is Qualified? ” New Republic, Jan. 8, 1966, p. 21; Coben and Hale, The New Student Left: An Anthology (1966); Harry Edwards, Black Students (1970); James Forman, The Making of Black Revolutionaries (1972); Joanne Grant, Black Protest (1968); Anthony Lewis, Portrait of a Decade — The Second American Revolution (1964); Jerome Skolnick, The Politics of Protest (1969); Arthur I. Waskow, From Race Riot to Sit-In (1966); Howard Zinn, SNCC — The New Abolitionists (1964).
The data on the National Welfare Rights Organization are from the following sources: Frances Fox Piven and Richard H. Cloward, Regulating the Poor (1971); Cloward and Piven, A Strategy to End Poverty, The Nation, May 2, 1966; Cloward and Elwan, Advocacy in the Ghetto, Transaction, December 1966; NOW’ National Welfare Rights Bulletin, Feb. 9, 1968; Robert Nelson gathered much data from newspaper accounts in New York City, Boston, and Newark as well as personal interviews with welfare rights leaders and legal services Lawyers. There is a vast literature in legal periodicals dealing with welfare rights.
For a discussion of the Montgomery bus boycott, see Anthony Oberschall, Social Conflict and Social Movements (1973), pp. 126–27; 267–68.
McNeil, supra, note 21, makes these points in his case study.
In most instances, the defendants cannot afford legal fees and the lawyers work at subsistence wages. These lawyers are not supported by foundations or by government.The cases are demanding and the defense lawyers are short-handed; in many instances, the lawyer’s private practice withers away.
Oberschall, supra, p. 206.
Louis E. Lomax, The Negro Revolt (1971), pp. 83–86.
Anthony Lewis and the New York Times, Portrait of a Decade (1964), p. 5.
Quoted in Lomax, supra, p. 85.
Lewis, supra, c. 3.
See Alexander M. Bickel, The Least Dangerous Branch (1962), pp. 255–66.
U.S. Civil Rights Commission, 1963 Staff Report, Public Education, December 1963, pp. 1–57.
U.S. Civil Rights Commission, Education, Vol. II, 1961, p. 177–78.
Charles E. Silberman, Crisis in Black and White (1964), p. 289.
Lomax, supra, note 32, p. 125.
Oberschall, supra note 28, p. 223.
Silberman, supra note 39, p. 142.
This problem is discussed at length in Joel F. Handler, Controlling Official Behavior in Welfare Administration, 54 California Law Review 479 (1966) and The Coercive Social Worker (1973), chs. 1, 7.
The New Public Interest Lawyers, 79 Yale Law Journal 1056, 1069–79 (1970).
The materials on the abortion controversy are from the following sources, among others: Lawrence Lader, Abortion (1966); Abortion II — Making the Revolution (1973); Daniel Callahan, Abortion: Law, Choice and Morality (1970); Bea Blair, “Abortion: Can We Lose Our Right to Choose? ” MS. Oct. 1973, pp. 92–95; Jimmy Kimmey, “How Abortion Laws Happen”, MS., April 1973, pp. 118–20; materials prepared for Workshop on Abortion and Reproduction Control, Center for Law and Social Policy, Washington, D.C., June 9, 1973. In addition, information was obtained from interviews with lawyers active in the abortion controversy.
Roe v. Wade, 410 U.S. 113 (1973).
See Richard Leone, Public Interest Advocacy and the Regulatory Process, The Annals, Vol. 400 (March 1972), pp. 46–47, 52.
Another example of the policing problem concerns maritime oil pollution. On behalf of three environmental organizations, a public interest law firm filed a lawsuit to enjoin the Secretary of Commerce and the Maritime Subsidy Board from awarding construction subsidies for oil tankers; petitioners charged failure to comply with NEPA. Shipyards, ship purchasers, ship building and operating unions, and the shipbuilders’ trade association intervened. A settlement was quickly reached, which provided that the Government would provide a comprehensive environmental impact statement that would cover the following matters: the tanker construction program as a whole, tankers presently under construction, present and future pollution abatement specifications, oil pollution effects of tankers, alternatives to the tanker construction program, alternative mixes of oil carrying vessels and their relative environmental effects, alternative design and equipment requirements for oil carrying vessels, such as double bottoms and fully segregated ballast systems, alternative energy strategies such as reducing the demand for oil, and the environmental impact of the deep water port development which would be necessary to accommodate supertankers. The settlement was signed on January 8; the draft impact statement was due to be released on February 19; all interested parties would then have 15 days to submit comments; another draft statement would be released on March 15, with public hearings on May 1, and final comments due on May 15. The settlement was considered an important victory for the environmentalists and the Government seemed genuinely cooperative. The immediate problem, though, was whether the environmentalists could take advantage of the opportunity they had won. There were enormous financial stakes involved. The industry had no difficulty in marshalling its experts. The environmental groups, on the other hand, had a very difficult time. They needed experts willing to devote substantial blocks of time on short notice, if the groups were going to have any sort of effect on the impact statement. Furthermore, the impact statement would function as a kind of blueprint for construction of future vessels and ports. There are always changes in construction plans as technical and economic contingencies materialize. Changes to meet environmental considerations are costly; as construction proceeds, the industry will seek modifications of the original impact statement. The environmentalists will have to be ready to consider proposed construction changes from their perspective and be prepared to press their point of view with the government agency. Otherwise, in time, the agency will again fall captive to the industry, which will usually be the agency’s primary source of information.
This account is taken from Peter E. Sitkin, Welfare Law: Narrowing the Gap Between Congressional Policy and Local Practice, in Studies in Public Welfare, Paper No. 5 (Part 2), Issues in Welfare Administration: Intergovernmental Relationships, U.S. Joint Economic Committee, Subcommittee on Fiscal Policy (U.S. Government Printing Office, Washington 1973), p. 36; see also Robert L. Rabin, Implementation of the Cost-ofLiving-Adjustment for AFDC Recipients: A Case Study in Welfare Administration, 118 U. of Pa. L. Rev. 1143 (1970); Rosado v. Wyman, 397 U.S. 397 (1970).
Mancur Olson, Jr., The Logic of Collective Action — Public Goods and the Theory of Groups (1965).
Even for small groups, Olson argues that collective goods will not be supplied at an optimal level, because the members of the group will not provide enough of the good to satisfy their common interests. This happens because the individual member who pays for a collective good gets only part of the benefit and will therefore discontinue paying before the optimal amount of the good is reached for all of the members. And, the larger the group, the more likely it is that the optimal amount will not be reached.
The only exception, he would argue, is where there are very unequal degrees of interest in the group; under those circumstances, collective goods may be provided.
Olson stresses throughout that his subject is economic organizations. He thinks that his theory would apply as long as rational individuals are interested in common goals. He does not think the theory is useful in describing religious or philanthropic groups, nor does he think the theory useful with groups “with a low degree of rationality — that is, working for lost causes”.
John D. McCarthy and Mayer N. Zald, The Trend of Social Movements in America: Professionalization and Resource Mobilization (1973).
See, e.g., Stanley Milgram and Hans Toch, “Collective Behavior: Crowds and Social Movements”, in Handbook of Social Psychology, Vol. 4, p. 590. See also Neil Smelser, Theory of Collective Behavior (1962). For a critical survey of research on social reform groups, see Jack M. Weller and E.L. Quarantelli, Neglected Characteristics of Collective Behavior, 79 Journal of Sociology, No. 3, p. 665 (1973).
McCarthy and Zald argue that survey data do not show that with the increasing size of the middle class social and political involvement or participation by the middle class increases correspondingly. Nor does increased leisure time lead to greater participation. People in higher status occupations tend to work longer hours. In addition, the increase in per capita income without a corresponding increase in leisure time, means that there is a tendency to spend money on what the authors call “high-yield” leisure time activities rather than “low-yield” activities. Social reform activities are low-yield; they therefore predict a declining allocation of time to these activities.
McCarthy and Zald, supra, p. 22, n. 14.
Michael Lipsky, Protest As a Political Resource, 62 American Political Science Review 1144 (1968); see also, Murray Edelman, Symbolic Uses of Politics (1964).
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Handler, J.F. (1976). Social Reform Groups and the Legal System: Enforcement Problems. In: Friedman, L.M., Rehbinder, M. (eds) Zur Soziologie des Gerichtsverfahrens (Sociology of the Judicial Process). Jahrbuch für Rechtssoziologie und Rechtstheorie, vol 4. VS Verlag für Sozialwissenschaften, Wiesbaden. https://doi.org/10.1007/978-3-322-96982-8_13
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