ill-paulIllustrated by Minji Reem

This past summer, I helped dozens of workers recover back pay from employers who had denied them minimum wage and overtime pay. Reflecting upon this experience, which involved the uniquely legal process of translating noble ideals—everyone deserves a living wage—into outcomes—tangible back wages— I attempted to recount what events had made my clients’ redress even possible.

The legal right to minimum wage and overtime pay was created in 1938 by the federal Fair Labor Standards Act (FLSA). The FLSA was passed during the New Deal, when President Franklin D. Roosevelt and Congress responded to the pressure of organized labor to address the immense economic suffering wrought by the Black Tuesday stock market crash of 1929 and the Great Depression. The revolutionary idea animating the Act was that Americans should no longer have to work full time, yet still live in poverty.

This general sequence of events— injustice, organizing, legal change, and implementation—precedes not only FLSA judgments, but all forms of just outcomes that lawyers effect, whether through enforcement of a constitution, statute, or regulation. Inspired by Martin Luther King Jr.’s famous line, I call this general four-phase trajectory the “Arc of the Legal Universe.” And since lawyers are involved at every stage of the Arc, analyzing each step along the Arc can provide insight into how we can be more effective advocates for social justice.

Phase One: Crisis and Injustice

At first, one might think that transformative change results solely from great leaders. Yet in context, every era of major change in American history has also followed a crisis and a movement. The reason is that a crisis fundamentally challenges the status quo, providing the opportunity to change the underlying system in a basic way. A focused and organized movement can then generate the political will to enact structural reforms into public policy.

For example, President Lincoln united the Union and ended slavery, not in spite of, but because of the Civil War and the Abolitionists. Similarly, President Roosevelt established the New Deal because of the Great Depression and the Labor Movement.[1] In the same way, President Johnson was able to launch the Great Society because of the Civil Rights Movement and racial inequality.[2]

In contrast, ineffective responses to crises tragically miss out on precious opportunities for transformative change. For example, despite a once-in-a-century event like the Great Recession, President Obama has not been able to achieve a legislative record comparable to the aforementioned sets of policies enacted after past periods of similar upheaval.[3] Part of the reason for this is that he had no sustained, supportive movement to create the political operating room for him to do so.[4]

Phase Two: Organizing Movements

The lesson, then, for current advocates, and the great task of our generation, is to organize a social movement that correctly diagnoses the root causes of the problems we face, provides specific solutions to meaningfully address them, and creates the political conditions to enact them into law.

In my opinion, the central issue preventing the vast majority of Americans from reaching their full potential is that our economic and political systems no longer work fairly for all.[5] Despite productivity and wages increasing in tandem for 150 years between 1820 to 1970, for the last four decades real wages for 80 percent of working Americans have practically remained flat.[6] Instead, more than 80 percent of income gains went to the top 1 percent of income earners.[7] As wealth concentrated, power did too. Empirical studies confirm our everyday perception that the general public has virtually no influence over public policy.[8] In essence, wealthy individuals and large corporations have co-opted our market[9] and our democracy[10] to serve their interests, a phenomenon called “corporate statism.”[11]

Amidst this bleak landscape, advocates are vigorously working out strategies to create a democratically participatory, economically prosperous, and environmentally sustainable society. No one solution has emerged, but current ideas range from expanding the tactics of the past—regulation,[12] taxation,[13] litigation[14]—to implementing new approaches to well-worn strategies—creation and adjudication of new “economic rights,”[15] fiscal policy informed by modern monetary theory,[16] organizing precarious communities through worker centers[17]—to advancing a bold and transcendent vision of “economic democracy”—starting worker-owned cooperative enterprises,[18] using election vouchers,[19] and publicly financing campaigns.[20]

Whichever reforms prove most promising, advocates must organize a united and focused movement to win political support for implementing them nationwide. To do so, organizers must contend with the fact that our generation is far more culturally diverse and socially atomized than the past. Organizers can neither rely upon strong institutions like political parties and churches nor a common mass media to spread their message and engage communities as they once did.

However, given the common challenges felt by nearly everyone—increasing income inequality and decreasing social mobility[21]—and their same root cause—corporate statism—organizers can unite discrete communities and direct their advocacy towards a common, economic agenda. Moreover, corporate statism offends opponents of both crony capitalism and state socialism, providing a bipartisan opportunity for activists on the left and right to fight together for an economy and a democracy that are free and fair for all.[22]  Lastly, unlike the past, social media and other new technologies can empower marginalized voices to unite and shift public consciousness much more quickly.[23]

Phase Three: Legal Change Through Leadership

While crises and movements are important, the role of leadership should not be understated. The third phase of the Arc, legal change, distinctly relies upon singular leadership[24] to translate the demands of a movement into robust public policy.[25]

For example, despite the severity of racial inequality and the vigor of the Civil Rights Movement,President Johnson’s decision[26] to fully apply all of his legislative prowess made the key difference in ensuring passage of a strong Civil Rights Act. In contrast, President Obama, despite the electorate’s craving for a forceful response to the 2008 financial crisis, abdicated the details of policy formulation to lobbyist-run Congress[27] or complicit old hands,[28] resulting in regulations that neither fully[29] addressed[30] the harm caused by the crisis nor credibly prevent another one from occurring.[31]

The lesson for our generation future’s lawmakers is to take full advantage of any given political moment and advocate as ardently as possible for truly responsive legal change. This kind of leadership, drawing from experience and engagement rather than image and heroism,[32] is required if a movement’s lofty ideals are to be translated into strong and enforceable public policy.

Phase Four: Implementation

Once laws create rights, implementation is required to make them real. This can be done either through litigation and the courts or through institutionalization and administrative agency enforcement. The successful working of both the judiciary and the administrative state requires a quiet, non-ideological rigor to apply the law and dispense justice. For example, my clients from the summer required not only my legal representation, but an array of effective government actors—mediators, hearing officers, and administrative law judges—in order to convert their wage claims into tangible back pay.

The lesson from this, applicable to us law students, is to view with renewed appreciation the tremendous value of direct legal services and competent government service in administering justice for millions of people every year. If more of our best graduates pursued direct legal advocacy and government work, countless Americans would be better off.

Moving Forward: Pushing the Arc

Martin Luther King, Jr. often reassured his fellow activists that “We shall overcome because the arc of the moral universe is long but it bends towards justice.” When the law secures justice, whether for one person or for a nation, there is an identifiable sequence of events, the Arc of the Legal Universe, that made that possible.

Each phase of that Arc—crisis and injustice, organizing, legal change, and implementation—requires effective execution to create, uphold, and sustain meaningful and lasting responses to injustice. As history demonstrates, the Arc does not bend automatically. It bends because lawyers and advocates push on it at every phase. The lessons we derive from reflecting upon the Arc will enable us all to continue pushing it even further.

 


[1] To understand how durable and transformative the New Deal was, some of FDR’s legislative accomplishments include: the Glass-Steagall Act of 1933 (separating commercial from investment banking and creating the Federal Deposit Insurance Corporation), the Securities Exchange Act of 1934 (creating the U.S. Securities and Exchange Commission), the Social Security Act of 1935, the National Labor Relations Act of 1935, the Emergency Relief Appropriation Act of 1935 (creating the Works Progress Administration), and the Fair Labor Standards Act of 1938.

[2] President Johnson’s mind-boggling set of legislative accomplishments include: the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Immigration and Nationality Act of 1965, Medicare, Medicaid, the Fair Housing Act of 1968, the Elementary and Secondary Education Act of 1965 (creating Head Start and formalizing the federal role in K-12 education), the Economic Opportunity Act of 1964 (as part of the War on Poverty), and the Clean Air Act of 1963.

[3] President Obama’s major legislative achievements are the American Recovery and Reinvestment Act of 2009 (the Stimulus), the Patient Protection and Affordable Care Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act.

[4] President Roosevelt probably put the relationship between social movements and presidential leadership best when he said: “Okay, you’ve convinced me. Now go on out and bring pressure on me!” Alinsky, Saul. Rules for Radicals. Vintage Books, 1971. Xxiii. Print.

[5] Economic freedom is a prerequisite to all forms of freedom. As President Roosevelt said in his Second Bill of Rights speech, “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.” State of the Union Message to Congress (1944), http://www.presidency.ucsb.edu/ws/index.php?pid=16518.

[6] Richard Wolff, Capitalism Hits the Fan, http://www.rdwolff.net/sites/default/files/attachment/4/03Wolff.pdf.

[8] John Cassidy, Is America an Oligarchy?, The New Yorker (Apr. 18, 2014), http://www.newyorker.com/news/john-cassidy/is-america-an-oligarchy.

[9] See Raghuram G. Rajan & Luigi Zingales, Saving Capitalism from the Capitalists: Unleashing the Power of Financial Markets to Create Wealth and Spread Opportunity (2004); see also Mariana Mazzucato, The Entrepreneurial State: Debunking Public vs. Private Sector Myths (2013).

[10] See Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop It (2011); Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (2014).

[11] See Ralph Nader, Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State (2014).

[12] About the Consumer Financial Protection Bureau, http://www.consumerfinance.gov/the-bureau/; Amanda Terkel, Sherrod Brown Teams Up With David Vitter To Break Up Big Banks, Huffington Post (Feb. 28, 2013), http://www.huffingtonpost.com/2013/02/28/sherrod-brown-banks-david-vitter_n_2782665.html?utm_hp_ref=politics;  Senators Warren, McCain, Cantwell, and King Introduce 21st Century Glass-Steagall Act, U.S. Senator Elizabeth Warren (Jul. 11, 2013), http://www.warren.senate.gov/?p=press_release&id=178.

[13] See The Buffett Rule, The White House, http://www.whitehouse.gov/economy/buffett-rule.

[14] See The New York Regional Solicitor’s Office, United States Department of Labor, http://www.dol.gov/sol/organizations/regions/ny.htm.

[15] See Cass Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (2004).

[16] Dylan Matthews, Modern Monetary Theory is an Unconventional Take on Economic Strategy, Washington Post (Feb. 18, 2012), http://www.washingtonpost.com/business/modern-monetary-theory-is-an-unconventional-take-on-economic-strategy/2012/02/15/gIQAR8uPMR_story.html.

[17] Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream, Economic Policy Institute (Dec. 13, 2005), http://www.epi.org/publication/bp159/.

[18] Gar Alperovitz, How to Democratize the US Economy, The Nation (Oct. 8, 2013), http://www.thenation.com/article/176555/how-democratize-us-economy; See also Richard Wolff, Democracy at Work: A Cure for Capitalism (2012); Gar Alperovitz, What Then Must We Do?: Straight Talk about the Next American Revolution (2013); Muhammad Yunus & Karl Weber, Creating a World Without Poverty: Social Business and the Future of Capitalism (2009).

[19] Lawrence Lessig, More Money Can Beat Big Money, The New York Times (Nov. 16, 2011), http://www.nytimes.com/2011/11/17/opinion/in-campaign-financing-more-money-can-beat-big-money.html?_r=0.

[20] Public Financing of Campaigns: An Overview, National Conference of State Legislatures (Jan. 23, 2013),

http://www.ncsl.org/research/elections-and-campaigns/public-financing-of-campaigns-overview.aspx.

[21] David Vandivier, What is the Great Gatsby Curve?, The White House (Jun. 11, 2013), http://www.whitehouse.gov/blog/2013/05/28/great-gatsby-curve.

[22] See Ralph Nader, Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State (2014).

[23] Cristina Flesher Fominaya & Laurence Cox, Protest and Social Movements: A Sine Qua Non for Democracy, openDemocracy (Jul. 23, 2014), https://www.opendemocracy.net/can-europe-make-it/cristina-flesher-fominaya-laurence-cox/protest-and-social-movements-sine-qua-non-.

[24] See Gautam Mukunda, Indispensable: When Leaders Really Matter (2012).

[25] It must be noted that legal change does not always come from legislators amending a constitution, passing a statute, or promulgating a regulation. It can also come from impact litigators persuading the courts to re-interpret an existing law so that it furthers a social goal. See, e.g., United States v. Windsor, 570 U.S. 12 (2013) (recognizing same-sex marriages under federal law); Roe vWade, 410 U.S. 113 (1973) (holding that there is a constitutional right to abortion). Court-led legal change also fits into the Arc, but since the judiciary is undemocratic, judicial leadership requires a more sensitive application to make its change sustainable. For example, before Windsor, the Court stayed its hand until social attitudes could readily countenance an idea whose time had come. In contrast, by going too far, too fast, the Court in Roe arguably provoked an angry backlash that continues to undermine its holding to this day. See Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit, The University of Chicago Law School (May 15, 2013), http://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit.

[26] Michael O’Donnell, How LBJ Saved the Civil Rights Act, The Atlantic (Mar. 2014), http://www.theatlantic.com/magazine/archive/2014/04/what-the-hells-the-presidency-for/358630/.

[27] Gary Rivlin, How Wall Street Defanged Dodd-Frank, The Nation (Apr. 2013), http://www.thenation.com/article/174113/how-wall-street-defanged-dodd-frank.

[28] “Still worse is Obama’s decision to leave the reordering of the financial world solely to Larry Summers and Timothy Geithner, both of whom played such a major role in deregulating Wall Street and bringing on the disaster in the first place. It’s as if, after winning election in 1932, FDR had brought Andrew Mellon back to the Treasury. Just as Herbert Hoover could not, in the end, break away from the best economic advice of the 1920s, Barack Obama is sticking with the ‘key men’ of the 1990s. The predictable result is that, even as he claims to recognize the interlocking nature of the problems facing us and vows to solve them as a whole, the president is in fact abandoning most of his program, at least for the time being.” Kevin Baker, Barack Hoover Obama, Harper’s Magazine (Jul. 2009), http://harpers.org/archive/2009/07/barack-hoover-obama/?single=1.

[29] Paul Krugman, The Stimulus Tragedy, The New York Times (Feb. 20, 2014),  http://www.nytimes.com/2014/02/21/opinion/krugman-the-stimulus-tragedy.html.

[30] Joe Nocera, Did Dodd-Frank Work?, The New York Times (Jul. 22, 2014), http://www.nytimes.com/2014/07/22/opinion/Joe-Nocera-Did-Dodd-Frank-Work.html.

[31] Channon Hodge and David Gillen, The Volcker Rule: Faults and Virtues, The New York Times (Dec. 2013),http://www.nytimes.com/video/business/100000002594850/the-volcker-rule-faults-and-virtues.html?playlistId=100000002585027.

[32] David Brooks, The Case for Low Ideals, The New York Times (Oct. 2014), http://www.nytimes.com/2014/10/17/opinion/david-brooks-the-case-for-low-ideals.html.