In RACE RELATIONS LITIGATION IN AN AGE OF COMPLEXITY, Stephen L. Wasby's central purpose "is to explore the
environmental, intraorganizational, and interorganizational factors that affect the litigation strategy of major interest groups active
in...civil rights and to describe and explain the difficulties of that litigation..." Wasby reviews the law-based reform efforts of four
major interest groups -- (1) the NAACP Legal Defense and Education Fund ("LDF"), (2) the NAACP, (3) the Lawyers'
Committee for Civil Rights Under Law, and (4) the ACLU -- over the period from roughly 1965 through 1985 ("the age of
complexity"). The lion's share of Wasby's attention, however, goes to the LDF and the NAACP. His "focus is on the principal
actors' views of the way [they and their organizations]...dealt with civil rights cases...," and his aim is to understand "what
organizations' lawyers do..."(p.xi-xiii, xvii).
The author discusses several dimensions of "complexity" in the modern era (Chapters 1-3, 6). Before 1965, one group (the
NAACP/LDF, prior to the final split in the early 60s) dominated reform cases. Constitutional litigation was its method, the federal
judiciary was its institutional ally, and de jure segregation was its target. The period after 1965, however, witnessed a "rights
revolution" and a "proliferation" of litigation-oriented groups. Competition among these groups for scarce political resources
increased. Moreover, all three branches of government entered "the policy matrix," giving rise to complicated questions of
statutory and administrative law. Reformers eventually faced a "transformed triangle" in which the Congress often acted to
reverse loses suffered at the hands of the other two branches. Finally, because "discrimination" itself became "less clear cut,"
reformers had to spend more resources on "labor-intensive, evidence-heavy cases..."(p. xiii-xv; 46-48; 119).
Wasby's central thesis is that, although "prior studies" have emphasized the "planned character" of reform litigation, and "although
organizational litigators attempt 'planned litigation for social change,'...many aspects of [it] turn out to be unplanned, and much
about [it] is not simple or linear...Murphy's law prevails, and Murphy sits on the edge of the lawyers' desk." (p. x, xi). Civil rights
litigation, he concludes, "should be seen as complex -- indeed, extremely complex, problematic and contingent both on external
events and intraorganizational developments." (p. 332). RACE RELATIONS LITIGATION is a dense chronicle of everything
that can and often does "go wrong" in this kind of litigation -- everything that makes planning difficult in the first place and then
complicates or derails it when it does occur.
Wasby succeeds in fashioning a certain kind of descriptive account, one that calls our attention to a myriad of factors that might
matter in modern civil rights litigation undertaken by elite liberal reformers. RACE RELATIONS LITIGATION also adds to our
knowledge about civil rights organizations and their lawyers. From Wasby, we gain
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insight into what these lawyers tend to think about, and what they think they are doing, when they try to plan and execute litigation
campaigns. Finally, Wasby's impressive command of the mainstream political science literature on interest group litigation makes
his book a useful gateway to themes and problems in this area of the field. However, as an effort to understand litigation strategy,
RACE RELATIONS LITIGATION ultimately fails. This failure stems from some serious problems of theory and method, and
these defects prove fatal to Wasby's larger ambitions.
To construct his account of group litigation processes, Wasby interviewed forty-one lawyers who served as either staff or
cooperating attorneys for national organizations involved in civil rights litigation. Although one cannot be sure (Wasby promised to
preserve his informants' confidentiality), it seems the bulk of the interviews were with LDF- and NAACP-affiliated attorneys.
From these interviews and the existing literature, Wasby then sifted out a list of topics related to organizations' attempts to plan
litigation campaigns. For the most part, the topics constitute Wasby's chapter headings. For example, Chapter Four ("Resources")
asks what resources organizations need and how they acquire them. Chapter 5 ("The Uses of Litigation") addresses why these
organizations turn to litigation. Chapter 7 ("The 'Planned' in Planned Litigation") investigates what goes into and is required for
"successful planning." Other chapters examine how lawyers choose areas of law, and cases or sets of cases within these areas
(Chapters 8 & 9); amicus participation (Chapter 10); the transformation of disputes in progress (Chapter 11); relationships
between staff and cooperating attorneys (Chapter 12) and lawyers and clients (Chapter 13); and interorganizational cooperation
and conflict (Chapter 14).
These are important topics, and students of law and courts will find that RACE RELATIONS LITIGATION provides good
overviews of each of them. However, Wasby's own work on these topics turns out to be a bit disappointing. The main problem is
that, beyond the interviews with lawyers, Wasby undertook little primary research for this study. The book never examines
specific strategic thinking or legal and political action in any particular context. Instead, each chapter offers extensive (far too
extensive to summarize here) lists of observations and generalizations, supported by what purport to be statements of fact ("data")
about cases or conflicts, all of which Wasby culls from the existing literature or occasionally from his interviews. Sometimes these
observations and generalizations are interesting and sometimes not. In any event, one always wants more detail and follow
through.
Wasby does provide a number of leads that other researchers concerned with legal mobilization and reform politics might want to
pursue. Throughout the book, for example, he describes the differences between the LDF and NAACP in organizational structure
and ability to mobilize and control resources, and speculates about how these differences might make a difference for law-based
reform activity. There are also a number of fascinating propositions about conflict and cooperation between the LDF and
NAACP. From the early 60s through 1968, Wasby
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points out, the conflict between Jack Greenberg (LDF) and Robert L. Carter (NAACP) had to do not only with interpersonal
tensions, but also with disagreements about legal theories and approaches to law and politics. [In 1968, Carter and the bulk of the
NAACP legal staff resigned after the organization fired attorney Lewis Steel for his NYT MAGAZINE piece, "Nine Men in
Black Who Think White."] Given Wasby's observations here, other researchers might explore whether there is anything to be
learned about law, politics, and reform from studying the differences between how the LDF (Greenberg) and the NAACP
(Carter) handled specific cases during this crucial period in the mid-1960s. (p. 175, 316-27).
But even when Wasby highlights important questions or dilemmas, he never goes into enough detail about his illustrations and
examples. Consider his treatment of ADAMS V. RICHARDSON. The case was filed in 1970 by the LDF and other advocacy
groups against the Office for Civil Rights, a separate unit within H.E.W. charged with enforcing Title VI of the Civil Rights Act.
Wasby mentions "the ADAMS litigation" at least eight times (p. 24, 40, 51, 119, 175, 204, 327). Scattered throughout the book,
Wasby's references to ADAMS are offered to support various generalizations -- like this one, for example: "Relations between
civil rights litigators and the government are characterized by division of labor, cooperation, and conflict." ADAMS is an example
of "conflict." ADAMS also shows us that ongoing lawsuits can be affected by Supreme Court decisions in other areas, and that
civil rights organizations sometimes intervene in each other's cases, making matters more complicated. (p. 21-24; 39-40; 243-44).
If the point is to know that sometime this happens, and sometimes that happens -- and that this and that happened to have
happened in ADAMS -- then Wasby's approach is fine. But if the point is to understand litigation strategy in ADAMS -- including,
e.g., why lawyers framed the lawsuit one way rather than another, or whether they missed opportunities for political organization
and mobilization -- then the approach doesn't work. After all of the references to ADAMS, we still don't know much about this
litigation.
The limits of Wasby's methodological approach can be illustrated through a brief look at Wasby's treatment of case selection
(Chapter 9). Here, we learn that the process of choosing cases is "inductive," not "deductive." (p. 195). "Under most
circumstances," he says, "no single factor determines the choice of any case, but a set of factors influences the choice. Not only
may each be given varying weight in different situations, but different organizations vary in the weights they assign to them." With
respect to "case selection at the LDF," one informant noted that "'LDF didn't make policy in the abstract, it made it through
cases...On a day-to-day basis, you pick the best cases,' with...the 'best factual basis...'" LDF lawyers evaluated the strength of a
case based on its likely costs, "the quality of the cooperating attorney ('legal firepower' attached to the case)...the state of the law,
and the likelihood of winning." These lawyers also pay attention to related issues of "timing of involvement" and "ability to control
the case." (p. 209; 214-18).
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Now, it IS important to know what these civil rights lawyers think about when they decide to take a case. But wouldn't it be more
interesting to know what they actually mean by these statements? What kind of "facts" constitute "a good set of facts?" What
qualities make a lawyer "competent" in the eyes of these civil rights litigators? Do these qualities include any particular beliefs that
might be controversial, say, about the relationship between law and politics, or the power of courts to bring about change? We
can't tell from Wasby's work, because he never explores what these statements (or others like them) mean in any particular
context.
Thus, Wasby's methodology is inadequate to the task of explicating problems of strategies and tactics in a meaningful way.
Strategies and tactics cannot be grasped from afar, divorced from particular historical and substantive policy contexts. Yet, this is
precisely what Wasby attempts to do. His literally hundreds of references to actual cases or conflicts are too cursory, and his
statements about organizational processes and lawyers' thinking are too abstract, to be of much help in understanding "litigation
strategy" and "what organizations' lawyers do." His effort is valuable in that it points us in directions that we might not otherwise
explore, but it is ultimately unsatisfying.
There are some deeper theoretical problems as well. Early on, Wasby states that "no particular social theory drives this study."
While it is true that no social theory EXPLICITLY guides this research, there are, I think, certain normative and empirical default
positions. Wasby wants to say that he is simply offering a descriptive account of "factors affecting litigation," "from the litigators'
perspective." Taking his cue from "the mouths of those in the trenches of civil rights litigation" -- lawyers who "often volunteered
comments about the less than fully planned nature of their enterprise" and "unhesitatingly stressed the difficulties of keeping
litigation strategy under control..." -- Wasby sees himself as a challenger to "the BROWN paradigm," the model of "planned
litigation for social change." (p. xi, 99, 142-43, 152). He duly notes that Mark Tushnet has done us the favor of unsettling this
model, even with respect to "the road to BROWN" itself. (Tushnet, 1987). In the modern era, Wasby argues, things are even more
complicated, try as litigators might to keep things under wraps. (p. x). Again, "Murphy's law prevails..." (p. xi).
Unlike Tushnet, however, Wasby seems untroubled by the notion that description of whatever sort is inevitably theory-laden. Thus,
he doesn't take up hard questions about who this Murphy is, and what, exactly, it means for things to "go wrong." What view of
"going right" undergirds description of everything that can and does go wrong? Is Murphy nothing more than a hobgoblin of elite
lawyers' own creation? Is he the guardian of these lawyers' wholly "undisciplined" power and prerogative? (See Tushnet, 1987, p.
150). Does he come bearing assumptions about cause and effect relationships in the world that are demonstrably false?
To be fair, Wasby is well-aware of these ideological and empirical issues. His claim, however, is that he can somehow set
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them aside. For example, he notes Scheingold's argument about "the myth of rights," and even relies upon it to help him explain
why these lawyers turn to litigation in the first place. (p. 106-108). Nevertheless, he concludes that the claims of critics like
Scheingold (1974) or Gerald Rosenberg (1991), "may be beside the point." Litigators "believe the myth of their own success[,],"
and that is all we need to know. (p. 110, 333). Thus, Wasby does notice what various critics have said about this sort of litigation.
However, he seems unaware of the extent to which his own description proceeds against a backdrop that both idealizes and takes
for granted these litigators' particular notions of "successful planning" and "maintaining control."
It would be one thing to present a picture of "the world according to liberal civil rights lawyers." It is quite another to go on, as I
think Wasby does throughout this book, to treat the views of these lawyers as the truth of the matter. Wasby's basic claim about
the truth of the matter is that the "model" of easy, "successful planning" is not true to modern, complex reality. But he never
explores whether these notions of "planning" and "control" are, themselves, part-and-parcel of the lawyers' broader embrace of
"the myth of rights," or what the implications for politics might be. I am not saying that the critics are necessarily right, or that
liberal law reformers might not have responses to such criticisms. What I am saying is that I don't see how Wasby can assert that
these debates are "beside the point."
For his part, Tushnet did more than dispute the factual accuracy of the model of carefully-planned litigation. By highlighting the
relationship between "success" and things like "flesh and blood clients" and lawyers' active participation in dense networks of
"community support," he also called into question the normative, gravitational pull of the model itself. "Commentators on the
[pre-BROWN] NAACP litigation," Tushnet suggested, should resist the temptation "to take the campaign as a model [as in
"ideal"] for public interest law generally." (1987, 153-55; 144).
By contrast, most of the lawyers with whom Wasby spoke do, in fact, take the mythology about pre-BROWN planning as their
ideal reference point, however difficult it may be for them to achieve it. And, for large stretches of RACE RELATIONS
LITIGATION, Wasby uncritically follows them in this. Scores of legalistic musings by Jack Greenberg and others about just how
difficult it is to be a crusader in court go by without comment. Moreover, like his informants, Wasby often tacitly associates
"control" and "planning" with "success" and "effectiveness" in the achievement of goals. (See Chapter 7, p. 144, 149, 154-61). By
and large, Wasby ends up captivated and captured by NAACP integrationism and liberal legalism, neither of which are ever
seriously questioned.
REFERENCES:
ADAMS v. RICHARDSON, 480 F.2d 1159 (D.C. Cir. 1973) (subsequent history omitted).
Rosenberg, Gerald. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
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CHANGE? (Chicago: University of Chicago Press, 1991).
Scheingold, Stuart. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE (New Haven,
CT: Yale University Press, 1974).
Tushnet, Mark. THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (Chapel Hill:
University Press of North Carolina, 1987)
