Can anti-discrimination litigation be a tool for social change? For many years, a contingent on the academic left contended that the answer is no. The Critical Legal Studies movement (CLS) of the 1970s and ’80s argued that using litigation to enforce rights privileged lawyers, fed an alienating and individualized discourse, and ultimately had a depoliticizing effect. CLS adherents believed that anti-discrimination laws often legitimated, rather than challenged, the fundamental inequalities of society.
Although CLS is no longer a presence in law schools, its ideas live on. Its critique of rights litigation has been bolstered by the opposition to identity politics from some on the left. In the words of Nancy Fraser, today’s neoliberals “[talk] the talk of diversity, multiculturalism, and women’s rights, even while preparing to walk the walk of Goldman Sachs.” A commitment to anti-discrimination “charge[s] neoliberal economic activity with a frisson of excitement,” she writes, and allows it to take on the mantle of “the forward-thinking and the liberatory, the cosmopolitan and the morally advanced.”
A remarkable new book by Michael McCann and George Lovell offers a different view. In Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism, McCann and Lovell, professors of political science at the University of Washington, trace the history of Filipino workers in the United States through the last decade of the twentieth century, starting from the U.S. occupation of the Philippines following the Spanish-American War. This review will not spend much time on McCann and Lovell’s engaging treatment of U.S. imperialism before and after the Second World War. Rather, it will focus on the implications of their argument for how anti-discrimination law can be a useful political tool and not simply written off as elitist, alienating, and supportive of the status quo.
Bagenstos, Samuel. "Litigation for the People." Dissent 67, no. 4 (2020): 174-180. doi: 10.1353/dss.2020.0098.