Book Manuscripts

• The Social Constitution: Embedding Social Rights Through Legal Mobilization

​This project examines the conditions under which new constitutional rights provisions become “real,” moving from parchment promises to constraining institutions. In this project, I introduce the concept of “embedding” constitutional law, which helps us to understand how particular visions of law come to take root both socially and legally. In short, embeddedness refers to the degree to which something is no longer unusual in social or legal life. One of the ways in which constitutional embedding occurs is through legal mobilization, as citizens understand the law in some way or another and make legal claims—or choose not to—on the basis of that understanding, and as judges decide whether and how to respond to those legal claims. These interactions between claimants and judicial officials ultimately construct the content and strength of the constitutional order. I explore this process in the context of the new Colombian social constitution of 1991. I also identify three challenges to the stability of Colombia’s embedded constitutionalist order. The first is the limits of legal legibility, or whose problems are legible to the law, and who gets left behind. The second is the labor of law, or the difficult work of keeping up with the daily work that underpins this kind of legal order. The third is overt efforts to unravel rights protections by political actors who view social constitutionalism as a threat to their relative power. In this project, I draw on over one year of fieldwork across Colombia and multiple data gathering techniques, including semi-structured interviews, original surveys, analysis of legal documents, and participation observation.

Forthcoming in the Cambridge Studies on Law and Society series with Cambridge University Press 

• Beyond Ballots and Barricades: The Practice and Consequences of Everyday Claim-Making
  • with Janice Gallagher and Gabrielle Kruks-Wisner

Everyday citizenship practices—that is, the actions and strategies through which citizens seek, claim, reject, and resist the state in their day-to-day lives—are often overlooked in studies of political behavior, which focus instead on highly visible, pivotal moments: elections, protests, high court decisions, the passing of significant legislation. But what of the politics of the everyday? We show that quotidian claim-making is an increasingly powerful form of citizenship practice prevalent in low and middle-income (LMI) developing democracies that is neither programmatic nor clientelistic in nature. By pursuing administrative and judicial channels, citizens circumvent traditional arenas of interest representation (political parties, legislatures, unions, established social movements), approaching the state not as clients, but as individual and group claimants. We draw on comparative accounts from Latin America, South Asia, and sub-Saharan Africa to examine the quotidian practices—beyond the electoral arena and below large-scale social movement mobilization—through which citizens pursue economic, social, and civil rights. Our aims are threefold: to call attention to the prevalence and importance of everyday acts of claim-making; to examine the conditions that give rise and shape to these politics; and to reflect on their material and political consequences.

Under contract with the Elements in Politics of Development series at Cambridge University Press

• Law, Mobilization, and Social Movements: How Many Masters?
  
  • ​with Sidney Tarrow

Legal and social movement scholars have long puzzled over the role of movements in moving, being moved by, and changing the meanings of the law. But for decades, these two strands of scholarship only dovetailed at their edges.  In this essay, we sketch four mechanisms that seem to us promising in effecting a true fusion: legal mobilization, legal-political opportunity structure, social construction, and movement-countermovement interaction. We illustrate the workings and interactions of these four mechanisms from two examples of our work: the campaign for same-sex marriage in the United States and social constitutionalism in South Africa.

Under review with the Elements in Contentious Politics series at Cambridge University Press
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Selected Publications

• "The Possibility of Rights Claim-Making in Court: Looking Back on Twenty-Five Years of Social Rights Constitutionalism in South Africa." (2022). Law & Social Inquiry. DOI: https://doi.org/10.1017/lsi.2022.63. [open access].
  • with Kira Tait

What factors influence citizens demand for law to protect social rights? We turn to the case of social rights in South Africa, just under three decades after the end of apartheid and the adoption of social rights constitutionalism to examine the contours of rights claim-making in the courts. Drawing on original interview and survey research, we argue that above and beyond factors such as the accessibility of the courts and support of civil society, citizens must believe that rights claims-making through courts is possible. We find that these beliefs and the subsequent demand for justice are connected to people’s personal circumstances, sentiments as rights-holders, and trust in legal institutions, rendering the legitimacy of social rights constitutionalism beholden to people’s perception that the state actually delivers on these constitutional promises.

• "Judicial Agency and the Adjudication of Social Rights." (Forthcoming). Human Rights Quarterly.

This article explores the impact of judicial interpretation on legal system change. An analysis of constitutional rights cases and 178 semi-structured interviews with judges, lawyers, and activists shows that judges created opportunities for mobilization for social rights by changing understandings about and uses of pre-existing institutional arrangements, through the contingent exercise of judicial agency. While Colombian judges pointed to interconnectedness of rights, South African judges focused on human dignity. These choices spurred the massive, yet unforeseen expansion of the tutela procedure in Colombia and precipitated policy-oriented judicial decision-making and “meaningful engagement” in South African constitutional rights litigation.

• "Public Trust in Latin America's Courts: Do Institutions Matter?" (2022). Government & Opposition. DOI: https://doi.org/10.1017/gov.2022.6 [open access].
  • ​with David De Micheli

Despite the integral role of the judiciary to democracy, and the importance of judicial trust for judicial system performance, we know relatively little about the bases of public trust in this institution. How does institutional quality affect judicial trust? We explore this question in the context of Latin America, using a multilevel dataset comprised of survey data spanning 2001 to 2016 and country-level institutional and economic factors. We find that the effects of institutional quality on judicial trust are highly circumscribed. Factors like rule of law and corruption impact the judicial trust of only the best-educated survey respondents. Among the broader public, however, judicial trust is shaped more strongly by individuals’ subjective economic and regime evaluations, as well as one’s personal experiences with the judiciary.
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• "On the Social Construction of Legal Grievances: Evidence from Colombia and South Africa" (2020). Comparative Political Studies 53(8): 1326-56. DOI: 10.1177/0010414019897685.

Leveraging comparisons within and across cases, this paper investigates legal mobilization for social rights in Colombia and South Africa. This kind of rights contestation represents a new phenomenon, in which both ordinary citizens and judicial actors have come to view problems related to access to healthcare, housing, and education through the lens of the law. I highlight the key role of contingent factors in explaining differential legal mobilization, detailing the complex ways in which diverse societal actors – from pharmaceutical and insurance companies to advocacy networks to individual claimants – create, capitalize on, adapt, and even manipulate opportunities for mobilization. Specifically, I hold that these non-judicial actors influence legal mobilization by actively partaking in the social construction of grievances and directly influencing judicial receptivity to particular claims. I present evidence for these arguments gleaned from interviews with 178 legal elites conducted over the course of nearly two years of fieldwork, as well as an analysis of constitutional rights claims.

***Winner of the 2020 APSA Law and Courts Best Journal Article Award***

• "Constitutional Rights and Social Welfare: Exploring Claims-Making Practices in Post-Apartheid South Africa" (2020). Comparative Politics 53(1): 25-48. DOI: 10.5129/001041520X15795426509653.

When do individuals choose to advance legal claims to social welfare goods? To explore this question, I turn to the case of South Africa, where, despite the adoption of a “transformative” constitution in 1996, access to social welfare goods remains sorely lacking. Drawing on an original 551-person survey, I examine patterns of legal claims-making, focusing on beliefs individuals that hold about the law, rights, and the state, and how those beliefs relate to decisions about whether and how to make claims. I find striking differences between the factors that influence when people say they should file a legal claim and when they actually do so. The way that individuals interpret their own material conditions and neighborhood context are important, yet under-acknowledged, factors for explaining claims-making.

• "Conceptualizing Legal Mobilization: How Should We Understand the Deployment of Legal Strategies?" (2020). Law & Social Inquiry 45(1): 166-93. DOI: 10.1017/lsi.2019.59. Read-only PDF.
  • with Emilio Lehoucq

Social movements have increasingly incorporated legal strategies into their repertoires of contention. Yet, both socio-legal and social movement scholarship lack a systematic and theoretically coherent way to conceptualize legal mobilization. In fact, scholars disagree (sometimes in fundamental ways) about what constitutes legal mobilization, which has resulted in conceptual slippage around how the term is used. This article proposes a more self-conscious approach that will facilitate the aggregation of findings across studies. To do so, it sets forth a systematic conceptualization of legal mobilization and situates it within a typology of uses of the law. It also contextualizes the typology with respect to emerging literatures within social movement and socio-legal scholarship and proposes areas for further research that would benefit from a more rigorous conceptualization of legal mobilization. 

• "Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia" (2018). Law & Society Review 52(2): 337-67. DOI: 10.1111/lasr.12329.

This article explores the relationship between legal consciousness and legal mobilization in the context of constitutional rights in Colombia. Citizens report extremely low confidence in the state and the judiciary, yet hundreds of thousands of Colombians make constitutional rights claims through the acción de tutela procedure each year. Why does profound skepticism of the ability of the judiciary to provide justice and fair treatment seem to coexist with high levels of use of the legal system? How do perspectives on rights and the legal system relate to observed mobilization of the law? Drawing on 74 interviews and an original 310-person survey, this article develops legal consciousness theory, identifying the specific beliefs that encourage or discourage individuals to turn to the courts to make claims to their rights. In the Colombian case, understandings of law and the state encourage the use of the tutela procedure, not due to the realizable promise of the state to protect rights or the majestic power of the law, but because the tutela is understood to be the only mechanism through which citizens can access their rights. In other words, citizens turn to the courts because there is no other alternative.