Movement Law Archives - Columbia Law Review

Introduction In an era defined by stark economic and political inequality,[footnote]See Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 2 (2d ed. 2016); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 12 (2012); Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pols. 564, 572–73 (2014) (explaining that politicians adopt the policies preferred by the wealthiest Americans); Emmanuel Saez & Gabriel Zucman, The Rise of Income and Wealth Inequality in America: Evidence From Distributional Macroeconomic Accounts, 34 J. Econ. Persps. 3, 5, 7–13 (2020); see also Income Inequality in the United States, Econ. Pol’y Inst., https://www.epi.org/multimedia/unequal-states-of-america/ [https://perma.cc/WVJ5-RSGM] (last visited Jan. 16, 2024) (noting the average annual income of the top 1% of earners is 26.3 times higher than that of the bottom 99%); Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Trends in Income and Wealth Inequality, Pew Rsch. Ctr., (Jan. 9, 2020), https://www.pewresearch.org/social-trends/2020/01/09/trends-in-income-and-wealth-inequality/ [https://perma.cc/3EFV-QXWP] (the share of U.S. aggregate wealth held by upper-income families in 2016 was 79% and rising, while the share of U.S. aggregate wealth held by lower-income families was 4% and falling).[/footnote] legal scholars are devoting increased attention to the ways law might enable people to demand equality. Among the most promising of these approaches is the use of law to enable the construction of countervailing power among the poor and working class.[footnote]See generally Kate Andrias & Benjamin I. Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 546 (2021) (proposing a series of legal reforms that would enable organizing by the poor and working class to counteract political inequality).[/footnote] The idea taking root among academics and activists is that if law can be deployed to facilitate organizing by the poor and working class, organizations of poor and working-class people can build for themselves the power they need to countervail the outsized influence of corporations and the wealthy.[footnote]See id. at 558–59. For a collection of essays by organizers and activists discussing how law can be used to facilitate social movement organizing, see Countervailing Power, Am. Prospect, https://prospect.org/topics/countervailing-power/ [https://perma.cc/U883-4L3E] (last visited Jan. 16, 2024); see also Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 847 (2021) (describing production of legal scholarship in conversation with left social movements); Amna A. Akbar, Non-Reformist Reforms and Struggles Over Life, Death, and Democracy, 132 Yale L.J. 2497, 2527–31 (2023) (exploring nonreformist reforms that build mass organization and prepare the people to govern); Greg Baltz, Resurrecting the Rent Strike Law, 26 U. Pa. J.L. & Soc. Change 1, 31–34 (2023) (proposing reforms to enable tenants to leverage New York City’s Rent Strike Law); Maggie Blackhawk, Federal Indian Law as a Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1799 (2019) (urging a focus on federal Indian law as an alternative paradigm that focuses on power rather than rights and “that envisions minority rule as a natural and integral aspect of our democracy”); Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160, 214 (2021) (characterizing labor law as an example of the ability of organized workers to exact concessions from the political order and highlighting how the Supreme Court’s recent jurisprudence undermines worker power); Andrew Manuel Crespo, No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, 90 Fordham L. Rev. 1999, 2004–16 (2022) (describing the American penal system’s vulnerability to the potentially transformative power of plea bargain unions); Hiba Hafiz, Rethinking Breakups, Duke L.J. 1491, 1579–95 (2022) (proposing antitrust remedies that are attentive to facilitating countervailing worker power); Kelly Hogue & Heather K. Way, The Role of the Law in Protecting Tenant Organizing: Opportunities for Local and State Legal Reforms, 31 J. Affordable Hous. & Cmty. Dev. L. 391, 414–24 (2023) (proposing legal protections to facilitate tenant organizing); Luke P. Norris, The Promise and Perils of Private Enforcement, 108 Va. L. Rev. 1483, 1516–34 (2022) (discussing the necessary preconditions for private enforcement laws to further rather than hinder eliminating structural power disparities); K. Sabeel Rahman, Policymaking as Power-Building, 27 S. Cal. Interdisc. L.J. 315, 333–40 (2018) (arguing for designing administrative processes in ways that enhance the countervailing power of ordinary citizens); Zoë Robinson & Stephen Rushin, The Law Enforcement Lobby, 107 Minn. L. Rev. 1965, 1974–75 (2023) (joining the “growing calls for democratization and power-shifting in the criminal justice system” with proposals to curtail “the power of the law enforcement lobby”); Samantha Gowing, Note, Rent Strikes and Tenant Power: Supporting Rent Strikes in Residential Landlord–Tenant Law, 120 Mich. L. Rev. 877, 894 (2022) (arguing that legislation to benefit tenants should focus on fostering tenant power); Laws That Create Countervailing Power, Am. Prospect (July 7, 2022), https://prospect.org/power/laws-that-create-countervailing-power/ [https://perma.cc/9TV7-CN3C] (publishing a roundtable discussion focusing on Andrias & Sachs, supra note 2); cf. Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. Rev. 443, 447–50 (2001) (exploring lawyers’ roles in movements for social change and collecting earlier scholarship in this vein); Catherine L. Fisk, The Once and Future Countervailing Power of Labor, 130 Yale L.J. Forum 685, 688 (2021), https://yalelawjournal.org/pdf/FiskEssay_z3d9e4jz.pdf [https://perma.cc/WDL2-8GKR] (exploring “the difficulties of using law to build sustainable class-based social movements”).[/footnote] In our previous work, we argued that law can, in fact, facilitate organizing by poor and working-class people.[footnote]As we emphasized, law is by no means the only factor that determines the success of social movement organizing. As important, if not more so, are factors such as an organization’s membership and leadership, its commitment to organizing, and broader political and economic conditions. But law is an important factor; indeed, the existing weakness of organizations among the poor and working class—and the comparative strength of organizations representing corporate interests—is in part a product of legal structures and rules. Andrias & Sachs, supra note 2, at 556–57.[/footnote] History contains examples of the dynamic, including the role played by the 1933 National Industrial Recovery Act and the 1935 Wagner Act in enabling an explosive increase in union organizing.[footnote]See Irving Bernstein, Turbulent Years: A History of the American Worker, 1933–1941, at 37–61 (1970); Nelson Lichtenstein, State of the Union: A Century of American Labor 43–48 (2013) [hereinafter Lichtenstein, State of the Union]; Robert H. Zieger, The CIO 1935–1955, at 16–17, 42 (1995).[/footnote] Theory supports the contention too. The sociological literature on movement growth and the burgeoning literature on law and countervailing power clarifies the mechanisms through which properly designed legal regimes—what we will call “organizing-enabling” or “power-building” laws—can spur organizing among poor and working-class people.[footnote]See generally Andrias & Sachs, supra note 2; sources cited supra note 3.[/footnote] In our earlier work, we delineated an ideal-type organizing-enabling legal regime with six interdependent features.[footnote]See Andrias & Sachs, supra note 2, 560, 586–87. The precise contours of any particular organizing-enhancing legislation must depend on the social, political, and economic context in which the organizing occurs. Thus, a regime that enables organizing among workers would look different from one that enables organizing among tenants, debtors, or students.[/footnote] We argued that an organizing-enabling law should grant collective rights explicitly; provide organizations with access to a reliable source of financial and other resources; guarantee free spaces for organizing; remove barriers to participation, including by preventing retaliation; permit organizations to make material change in members’ lives, at a scale commensurate with the problem; and allow for contestation and disruption.[footnote]See id. at 560.[/footnote] Another important feature of an organizing-enabling law is effective enforcement, including robust and expeditious remedies.[footnote]We thank Sharon Block for emphasizing the importance of disaggregating enforcement as a key factor of any organizing-enabling law. On the importance of enforcement generally, see Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698, 699 (“The law in books is different from the law in action. Enforcement determines the distance between the two.” (footnote omitted) (citing Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910), as reprinted in American Legal Realism 39, 39–40 (William W. Fischer III, Morton J. Horwitz, & Thomas A. Reed eds., 1993))); Paul Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1787–95 (1983) (explaining deficiencies in the NLRA remedial regime and their contribution to organizing failures).[/footnote] But law can enable organizing—more or less successfully—by performing one or any combination of these (or other) features, and we use the term organizing-enabling law here to denote any such law. The key is that the legal interventions facilitate the growth, durability, and power of the social-movement organization.[footnote]Critically, the focus is on building countervailing organizations that have the capacity to exercise sustained political power. This is not necessarily the same as facilitating mass protest or diffuse social movements. See generally Vincent Bevins, If We Burn: The Mass Protest Decade and the Missing Revolution (2023) (detailing the failures of mass protest movements undertaken without organization).[/footnote] There is, however, a problem: Enacting laws designed to facilitate social-movement organizing generally requires social-movement organizations already influential enough to secure the enactment of those laws.[footnote]For discussion of financial elites’ disproportionate power over political decisionmaking in the absence of countervailing organization, see, e.g., Bartels, supra note 1, at 2 (describing the increasing influence of wealthy actors, and the decreasing influence of public interest groups, in the political process); Gilens, supra note 1, at 12 (noting the “enormous inequalities in the responsiveness of policy makers to the preferences of more- and less-well-off Americans”).[/footnote] Thus, the relationship between law and social-movement organizing by the poor and working class is plagued by a chicken-and-egg problem: Organizing-enabling laws may often be needed to facilitate social movements, but social movements are needed to enact organizing-enabling laws.[footnote]Cf. Eric A. Posner & Adrian Vermeule, Inside or Outside the System?, 80 U. Chi. L. Rev. 1743, 1747–49 (2013) (critiquing public law literature for offering deeply pessimistic accounts of the ambitious, partisan, or self-interested motives of relevant actors in the legal system, while subsequently issuing an optimistic proposal for public-spirited solutions).[/footnote] Although the problem is a general one, a contemporary example usefully illustrates the puzzle that this Essay attempts to solve. The labor movement, and labor scholars, have long argued that labor law reform is needed to revitalize union organizing in the United States.[footnote]There is a voluminous amount of literature on this point. See, e.g., Kate Andrias, The New Labor Law, 126 Yale L.J. 2, 8 (2016) [hereinafter Andrias, New Labor Law] (collecting sources and urging fundamental reform of labor law, including sectoral bargaining); Sharon Block & Benjamin Sachs, Clean Slate for Worker Power: Building a Just Economy and Democracy 11–12 (2020), https://clje.law.harvard.edu/app/uploads/2020/01/Clean-Slate-for-Worker-Power.pdf [https://perma.cc/6YEJ-7NRL] (arguing that comprehensive reform that “enable[s] workers to build collective organizations that can countervail corporate power wherever that power impacts workers’ lives” is necessary).[/footnote] A bill currently pending in Congress, the Protect the Right to Organize Act (PRO Act), would go a long way toward accomplishing the goal of facilitating a significant increase in successful unionization.[footnote]Richard L. Trumka, Protecting the Right to Organize Act of 2023, H.R. 20, S.567, 118th Cong. (2023) (strengthening labor law by making it harder to misclassify workers as independent contractors, providing greater protection for the rights to organize and strike, providing for first contract arbitration, and augmenting penalties for violations of law).[/footnote] The problem is that the labor movement does not currently possess enough legislative influence to secure enactment of the PRO Act. Hence, the chicken-and-egg dilemma: The labor movement needs the PRO Act to build power, but enactment of the PRO Act depends on the labor movement having already built more of that power. The same dynamic would undoubtedly confront tenant organizers who sought a tenant organizing law, welfare rights organizers who sought legal reforms to enable welfare rights organizing, debtor organizers and student organizers who sought laws to facilitate organizing among borrowers and students, and many other groups. This Essay identifies three potential solutions to this chicken-and-egg problem: disruption, jurisdiction shifting, and changing branches of government.[footnote]Much of what this Essay explores is relevant to social-movement organizations generally—including organizations that represent the interests of diverse economic groups—and not exclusively to organizations of the poor and working class. Indeed, at various points in the Essay we make reference to the environmental movement, the LGBTQI+ movement, and the cannabis legalization movement, among others, and these groups might also pursue some of the strategies analyzed below. Our focus is on movements of the poor and working class, however, because of the essential role that such groups can play in redressing economic and political inequality. See Andrias & Sachs, supra note 2, at 562–77.[/footnote] The first approach—disruption—flows from the observation that, in certain contexts, social movements that lack traditional political power may possess significant (if untapped) disruptive capacity to elicit a response from government. Put simply, social-movement organizations can solve the chicken-and-egg dilemma by translating their disruptive capacity into the political power necessary to enact organizing-enabling laws.[footnote]See, e.g., Frances Fox Piven, Challenging Authority: How Ordinary People Change America 16–18 (2008) (describing multiple instances where disruptive power was used to enact reform).[/footnote] In their now-classic formulation, Professors Francis Piven and Richard Cloward describe disruption as follows: Factories are shut down when workers walk out or sit down; welfare bureaucracies are thrown into chaos when crowds demand relief; landlords may be bankrupted when tenants refuse to pay rent. In each of these cases, people cease to conform to accustomed institutional roles; they withhold their accustomed cooperation, and by doing so, cause institutional disruptions.[footnote]Frances Fox Piven & Richard A. Cloward, Poor People’s Movements: Why They Succeed, How They Fail 24 (1977) [hereinafter Piven & Cloward, Poor People’s Movements] (emphasis omitted).[/footnote] Crucial to the analysis here, when important-enough social institutions are disrupted to a sufficient extent, government may be forced to respond so as to secure the continued functioning of the institution. This response can take multiple forms, including, of course, repression. But, in certain contexts, when the disruption is significant and widespread enough, and repression is not a feasible response, the government may respond by offering legislative concessions to ensure the return to social cooperation—to end the ongoing disruption.[footnote]Id. at 29 (describing the “placating efforts” of governments in this position, including legislative concessions).[/footnote] Such cycles of disruption and concession are not common in U.S. history, but they have been present at highly significant political moments. For example, the National Labor Relations Act (NLRA) likely would not have been enacted if not for the strike wave of 1934; the Civil Rights Act of 1964 and the Voting Rights Act of 1965 likely owe their enactment to the sit-ins, boycotts, and mass demonstrations of the Civil Rights Movement, leading up to and including the protests in Birmingham and Selma.[footnote]See, e.g., Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 436, 440 (2004); Michael Goldfield, Worker Insurgency, Radical Organization, and New Deal Labor Legislation, 83 Am. Pol. Sci. Rev. 1257, 1273–77 (1989) [hereinafter Goldfield, Worker Insurgency].[/footnote] In our context, then, a social movement may lack sufficient political influence to ensure enactment of organizing-enabling legislation through ordinary political advocacy but may nonetheless possess sufficient disruptive power to secure enactment in the form of legislative concessions meant to restore social order. To return to the previous example, the labor movement today lacks enough supportive votes in Congress to pass labor law reform,[footnote]See Emily DiVito, The Filibuster Strikes Again: How It Inhibited Workers’ Rights in the 117th Congress, Roosevelt Inst. (Jan. 3, 2023), https://rooseveltinstitute.org/2023/01/03/the-filibuster-strikes-again-how-it-inhibited-workers-rights-in-the-117th-congress/ [https://perma.cc/5TMN-X8YL] (describing the PRO Act’s failure to advance after House passage because of a threatened filibuster by Republicans in the Senate).[/footnote] but it might change those political facts by disrupting key sectors of the U.S. economy with a wave of strike actions. Lest the approach seem fanciful, this is in fact what happened in the 1930s: Strikes disrupted the national economy to such an extent that Congress was forced to respond with the NLRA.[footnote]See Piven & Cloward, Poor People’s Movements, supra note 17, at 28–29. As Piven and Cloward write, "[W]hen the disrupted institutions are central to economic production or to the stability of social life, it becomes imperative that normal operations be restored if the [government] is to maintain support among its constituents. Thus when industrial workers joined in massive strikes during the 1930s, they threatened the entire economy of the nation . . . . Under these circumstances, government could hardly ignore the disturbances. Yet neither could government run the risks entailed by using massive force to subdue the strikers in the 1930s. It could not, in other words, simply avail itself of the option of repression." Id. See also National Labor Relations Act of 1935, Pub. L. No. 74-198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–169 (2018)).[/footnote] A similar dynamic may nearly have played out toward the end of 2022. If the railroad unions had carried out their threat to strike over the lack of paid sick leave, the consensus view was that they would have shuttered huge sectors of the national economy.[footnote]See, e.g., Stephanie Lai, Congress Moved to Avert a Rail Strike. Here’s How and Why., N.Y. Times (Dec. 2, 2022), https://www.nytimes.com/article/railroad-strike-explained.html (on file with the Columbia Law Review ) (noting that the strike would have caused “dire economic damage”). Or consider the Teamsters who threatened to strike UPS, which handles about one-quarter of the tens of millions of parcels shipped each day in the United States, Noam Scheiber, UPS Workers Authorize Teamsters Union to Call Strike, N.Y. Times (June 16, 2023), https://www.nytimes.com/2023/06/16/business/economy/ups-union-workers-strike.html (on file with the Columbia Law Review ), or the dockworkers who nearly crippled the importation of goods into the United States, Lori Ann LaRocco, Tentative Agreement Ends Worker Slowdowns and Stoppages that Crippled West Coast Ports, CNBC (June 15, 2023), https://www.cnbc.com/2023/06/15/tentative-agreement-ends-worker-slowdowns-and-stoppages-that-crippled-west-coast-ports-.html [https://perma.cc/3MQV-DS87].[/footnote] What might Congress have offered had the unions engaged in such an exercise of disruptive power with the goal of achieving power-building legislative reform? Looking forward, too, perhaps the political prospects of labor law reform will improve if the recent strike wave continues to build.[footnote]See Brennan Doherty, How ‘Strike Culture’ Took Hold in the US in 2023, BBC: Worklife (Sept. 27, 2023), https://www.bbc.com/worklife/article/20230927-how-strike-culture-took-hold-in-the-us-in-2023 [https://perma.cc/4YKT-Q6EE] (predicting that strikes are “poised to become a common part of American workers’ playbooks as they negotiate working conditions”); Labor Action Tracker, Cornell Univ. Sch. Indus. & Lab. Rels., https://striketracker.ilr.cornell.edu/ [https://perma.cc/LA3K-EJE7] (last visited Jan. 17, 2024) (showing active labor strikes across the United States).[/footnote] If the first approach to resolving the chicken-and-egg dilemma is disruption, the second approach is more conventional: It involves shifting the attempt to secure organizing-enabling legislation from one level of government to another. More specifically, this approach involves refocusing political effort from a level of government where the social movement lacks sufficient influence to a level of government where the movement possesses adequate legislative power. Typically, this will involve shifting from the federal government to state or local jurisdictions where partisan alignments favor the social movement. This deployment of “partisan federalism” depends on two primary factors for its viability.[footnote]We borrow the term from Professor Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1080 (2014) [hereinafter Bulman-Pozen, Partisan Federalism] (“Partisan federalism . . . involves political actors’ use of state and federal governments in ways that articulate, stage, and amplify competition between the political parties, and the affective individual processes of state and national identification that accompany this dynamic.”); see also Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 Yale L.J. 1920, 1948–49 (2014) [hereinafter Bulman-Pozen, From Sovereignty and Process].[/footnote] First, the movement that lacks power to enact organizing-enabling legislation at the national level must nonetheless possess enough legislative influence in some state or locality to make enactment of the legislation feasible there. These political conditions are not guaranteed, of course, but it is frequently the case that a movement will be unable to move legislation in Congress and yet succeed in doing so in state legislatures or city councils.[footnote]The contemporary Fight for $15 campaign provides a relevant analogue: Unable to secure a national minimum wage of $15/hour, that movement was enormously successful in enacting $15/hour minimum wage laws in states and cities across the country. See, e.g., Andrias, New Labor Law, supra note 13, at 51 (noting that Fight for $15 achieved the passage of minimum wage laws across the country, including in major cities like Chicago, San Francisco, and Seattle). Among the many other recent examples are marriage equality, marijuana legalization, and emissions controls. See infra notes 199–203 and accompanying text.[/footnote] Second, the relevant legislation must not only be politically feasible at the state or local level—it also must be legally permissible at that level, thus implicating questions of home rule along with federal and state preemption.[footnote]Under current rules, this poses a significant barrier for the labor movement, but less of a hurdle for other social movements where states and cities maintain significant authority to legislate in the relevant subject areas—housing law, for example, remains largely the province of state and local governments. Or, at least, state governments. See infra section II.B. As discussed below, state law is increasingly being used to preempt local discretion in some areas of concern to us here. See infra notes 243–245 and accompanying text.[/footnote] As we will describe, there are two major variants of this jurisdiction-shifting approach to resolving the chicken-and-egg dilemma. The first involves a static transition from federal to state or local policymaking: Accepting that the social movement is unable to secure a federal law that facilitates organizing growth, it instead tailors its vision and pursues change in a smaller jurisdiction. The second variant is a more dynamic one. Here, the social movement abandons federal legislative change only for the present. On this approach, once the social movement secures organizing-enabling legislation in a state or city, it uses that legislation to build power that it exports across jurisdictional lines, potentially to enact similar laws in other states or cities. Ultimately, the social movement can use state and local legislation to build sufficient power so that it can return to the federal government and move the legislation that it previously was too weak to enact.[footnote]Although she does not consider organizing-enabling legislation or its effect of growing social-movement power, Professor Bulman-Pozen makes a related observation when she writes, “Because it is easier to pass new state laws than new federal laws, time and again states prove more accessible fora for nationwide movements to promote their ultimately national agendas.” See Bulman-Pozen, From Sovereignty and Process, supra note 24, at 1951; cf. Jamila Michener, Medicaid and the Policy Feedback Foundations for Universal Healthcare, 685 Annals Am. Acad. Pol. & Soc. Sci. 116, 125–30 (2019) (showing that well-designed laws enacted in progressive states and localities can demonstrate the efficacy and plausibility of reform, create administrative capacity, and expand supportive constituencies in ways that increase the likelihood of reform both in other states and at the national level).[/footnote] The third approach we offer involves shifting political effort from one branch of government to another: most likely from the legislative to the executive branch. The viability of this approach depends on a social movement possessing enough influence to obtain administrative rulemakings or other executive branch actions with organizing-enabling effects. In some instances, a social movement might also be able to shift its efforts from the political branches to the judiciary. Indeed, conservative social movements have done just that with great success,[footnote]See Amanda Hollis-Brusky, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution 147–56 (2015) (detailing the Federalist Society’s efforts to change Court jurisprudence and to lock in conservative power); Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law 221–64 (2012) (describing the conservative movement’s focus on transforming the courts and legal doctrine to achieve political power); Mary Zeigler, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment 11–81, 205–12 (2022) (detailing the antiabortion movement’s court-centered strategy, including its efforts to transform campaign finance law, to build more political power).[/footnote] as have some civil rights movements.[footnote]See generally Klarman, supra note 19 (detailing the transformation of Supreme Court jurisprudence in response to efforts by the Black Civil Rights Movement).[/footnote] Yet, at least as presently constituted, the judiciary is less likely to be a hospitable forum for advancing the agendas of poor and working-class social movements, nor is it as well suited to crafting the legal regimes necessary for facilitating durable organization.[footnote]See infra notes 293–298 and accompanying text.[/footnote] The viability of the branch-shifting approach is, in part, simply a question of political power. And, again, it is not uncommon for political actors to succeed in securing favorable administrative action when legislation is beyond reach.[footnote]Indeed, this dynamic is in play today: The PRO Act is stalled in Congress, but the NLRB (and particularly the NLRB General Counsel) is doing what it can, within existing statutory constraints, to reshape labor law so as to better facilitate union organizing. See infra section III.B.[/footnote] The viability of this third approach, though, also depends on a less contingent factor, namely the capacity of administrative action to facilitate organizing. As noted above, we have described six interdependent features of organizing-enabling laws.[footnote]See supra notes 7–8 and accompanying text.[/footnote] Accomplishing such a comprehensive organizing-enabling law likely requires legislation; it is highly unlikely that any administrative action could, by itself, produce such a regime. Nevertheless, executive action—including rulemakings; adjudications by administrative agencies; and federal, state, or local procurement-related action by executive actors—can undoubtedly perform some of the organizing-enabling functions we sketched. To the extent that such partial interventions fuel movement growth, this third approach constitutes a viable means to escape the chicken-and-egg dilemma. It is worth emphasizing that these three approaches—disruption, jurisdiction switching, and branch shifting—are not only dynamic over time but can also be used in combination with one another. For example, movements may persuade the federal executive branch to partner with state actors to achieve organizing-enhancing ends that could not be achieved with either party acting alone. Meanwhile, to produce local and state legislation or executive action, disruption may be necessary, albeit on a smaller scale. A few other points bear mention at the outset. First, the three paths out of the chicken-and-egg dilemma on which this Essay focuses are not the only plausible paths. For example, there are numerous political contexts in which a social movement lacks the requisite influence to secure legislative change when acting on its own but would possess sufficient power if it were part of a coalition of organizations from across movements or in alliance with components of a fractured opposition.[footnote]See, e.g., David S. Meyer & Suzanne Staggenborg, Thinking About Strategy, in Strategies for Social Change 14 (Gregory M. Maney, Rachel V. Kutz-Flamenbaum, Deana A. Rohlinger eds., 2012) (discussing how building coalitions can increase movement influence). This Essay has less to say about coalition building than about the three approaches described above. But that should not imply that coalition work across social movements is anything less than essential to securing organizing-enabling legislation.[/footnote] Likewise, social movements may increase their political power through effective use of media and social media[footnote]See Jane Hu, The Second Act of Social Media Activism, New Yorker (Aug. 3, 2020), https://www.newyorker.com/culture/cultural-comment/the-second-act-of-social-media-activism (on file with the Columbia Law Review ) (describing how digital tactics, such as organized use of hashtags, can have “material consequences”).[/footnote] that helps garner enough public support to shift legislative alignments. So too, external factors—like international conflict or economic crisis—can affect the power and influence of social movements in a given historical moment.[footnote]See, e.g., Daniel S. Lucks, Selma to Saigon: The Civil Rights Movement and the Vietnam War 8 (2014) (describing the “profound and tragic consequences” of the Vietnam War on the American Civil Rights Movement).[/footnote] Although this Essay will not address those dynamics in any detail, they are often critical to winning legal reforms that facilitate social-movement organization.[footnote]As discussed throughout the Essay, our three paths out of the chicken-and-egg dilemma require social movements to possess differing types and degrees of political power. But each of our three paths also requires different types of movement capacity : membership, resources, skills, relationships, and know-how necessary to enable movements to operationalize political power in different lawmaking and regulatory contexts. (For example, moving legislation at the state level requires social movements to possess capacities specific to state-level politics, and securing administrative policy change requires movements to have capacities specific to the administrative context.) We assume for purposes of this discussion that movements will have or develop the capacities and infrastructure necessary to take advantage of the paths we describe. But future work in cognate fields might usefully delineate the capacities necessary for movements to do so.[/footnote] Finally, it is important to note that while the three approaches outlined here can be attempted under existing legal frameworks, there are a set of legal design features that make the approaches more or less viable.[footnote]With respect to disruption, for example, law might impose stricter or weaker sanctions for disruptive activity or law might actually protect disruptive activity. With respect to the federalism approach, preemption and home-rule powers determine exactly how much organizing-enabling legislation can be enacted at the state and city level. And with respect to the executive branch approach, administrative and constitutional law help determine the robustness of potential organizing-enabling lawmaking that administrative agencies are empowered to conduct. Throughout the Essay, we consider the ways that law can alter the viability of each approach to securing organizing-enabling laws.[/footnote] Although we note some possible legal changes that could facilitate the securing of organizing-enabling laws, we leave a full discussion of those possibilities for another day.

Movement Law

THE CHICKEN-AND-EGG OF LAW AND ORGANIZING: ENACTING POLICY FOR POWER BUILDING

PARTICIPATORY LAW SCHOLARSHIP