Dynamic Statutory Interpretations and Sluggish Social Movements

This Comment argues that civil rights activists have focused too many resources on attempting to gain favorable statutory interpretations in court rather than pursuing changes in Congress. Though in some circumstances a judicial strategy may lead to greater short-run gains, it is less likely to change preferences in the long run. The Comment makes this argument using a modified version of William Eskridge's game-theoretic model of the interaction between the Court, Congress, and the President. It also adds a second period to the game, with a legislative strategy more likely to shift preferences leftward in the second period. The Comment applies the theory to the Civil Rights Act of 1991, arguing that the 1989 Supreme Court decisions which provoked the Act may have helped civil rights activists by prodding them to return to activism focused on Congress. It concludes by suggesting that, in the present environment, a mass action strategy focused on changing long-run preferences rather than immediately changing the law either in the courts or in Congress might be most effective.