Legal rights, "rights talk," and liberal judicial policymaking, according to widely-accepted criticisms, either distract social
movements from more effective strategies for social change (Rosenberg, 1991) or, worse, shackle individuals with an
individualistic liberal legal consciousness that limits the formation of progressive movements (Gabel and Kennedy, 1984).
Michael McCann's new book, a theoretically sophisticated, interview-based study of the political movement for pay equity
reform, provides a devastating refutation of such skeptical views and a guardedly optimistic alternative understanding of the role
of rights in progressive social change. While others have made similar claims about the aspirational potential of rights (e.g,
Hartog, 1987, Williams, 1987), McCann is the first to provide systematic empirical evidence from a contemporary social
movement to support such claims. RIGHTS AT WORK is sure to shift the terms of the debate over the role of legal rights in
social change; it will be necessary reading for any scholar following the debates around judicial implementation and impact,
Critical Legal Studies, Critical Race Studies, feminist legal theory, and the mobilization of social movements.
The movement for pay equity is a response to the persistence of wide differences in the pay accorded to workers in female-
and male-dominated job categories, differences that proponents believe to be the result of sex discrimination and an important
source for what is called the "feminization of poverty." Pay equity reform typically involves comparing job skills and education
required for work in female-dominated jobs with those required in male-dominated jobs and, based on such comparisons,
mandating increases in pay for all workers in the female- dominated jobs to bring them into parity with comparable male jobs.
The policies have been most successful in the public sector, where some twenty states and numerous counties and municipalities
made substantial changes in pay structure in the mid-1980s. Public sector unions, along with a few independent activists, were
the main actors in the pay equity movement.
McCann, a political scientist at the University of Washington, structured his research around 28 case studies of pay equity
struggles in various states and municipalities chosen for their variation on such dimensions as level of government (e.g., state or
city), degree of participatory involvement, and degree to which proponents used litigation. McCann's methods consisted of
in-depth interviews with over 140 pay equity advocates involved in some of the struggles, a standardized survey of 100 of the
advocates, and content-analysis of newspaper coverage. He applied the various methods systematically and used them for
triangulation -- checking results of one method against another - - to enhance the validity of his conclusions. The
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book is a model for future qualitative studies.
McCann proposes a theory of legal mobilization based on "a cultural interpretation of law as a constitutive element of social life"
and "a continuously contested terrain of relational power among citizens (pp. 282 and 283, respectively). The framework
focuses on individuals' conceptions of rights and of the practical possibilities for change; it emphasizes that rights and rights
consciousness constitute both strategic resources for, and limitations on, the efforts of social movements (p. 7).
McCann divides his analysis of the role of legal rights into several phases of the movement and the policy process --
mobilization of the movement (chapters 3 and 4); the struggle to compel adoption of pay equity policies (chapter 5); the
struggle over the implementation of the policies (chapter 6); and the legacy for future movements (chapter 7). Briefly, McCann
concludes that the progressive influence of legal rights and litigation was greatest in the earliest phases of the movement, in
particular in the formation of the movement and in encouraging the adoption of pay equity policies. By contrast, its influence
was least during the crucial implementation stage. The analysis of each stage of the movement is rich and complex, and only a
few of McCann's conclusions may be noted here.
In analyzing the initial development of the movement (chapters 3 & 4), McCann shows that movement organizers used key
court decisions to radicalize women's consciousness of pay inequities and the practical possibilities for reform. The result was a
dramatic growth in the number of women joining unions and the pay equity movement. Nor did using the court cases as an
organizing tool impose significant costs: the lawyers, rather than pursuing their particular interests, deliberately subjected their
activities to the goal of organizing the movement; and the rights claims that emerged from the legal strategies, rather than
fragmenting the growing movement, produced a shared rights discourse that united it.
McCann argues that litigation also proved to be a useful tool for compelling governments and employers to adopt pay equity
policies (chapter 5). "Legal leveraging," as he aptly terms this use of litigation, did not depend for its effectiveness on favorable
policies from the judiciary: the mere potential of judicial intervention was often enough to encourage an opposing party to
negotiate more favorably (168-169). McCann concludes that, contrary to critics of the use of litigation by social movements,
such use is not harmful to the other tactics of the movement nor its broader goals. Legal leveraging almost never is the exclusive
tactic, it does not compete for resources with such mass-based tactics as demonstrations and strikes, it sometimes produces
resources for the movement in the form of monetary awards, its use is quickly diminished when costs come to outweigh
benefits, and it is sometimes more effective than mass- based tactics.
McCann admits, however, that litigation proved least useful during the crucial policy implementation stage (chapter 6), the point
at which other scholars (Evans
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and Nelson, 1989) identified significant setbacks for pay equity reform. Such setbacks, McCann suggests, resulted from the
greater capacity of employers than unions for dealing with the complex technical issues related to job evaluations. He
documents a range of tactics employers used to limit the substance of pay equity reforms (pp. 200-206) and concludes that the
most successful responses by unions were to demand participation in the job evaluation process (pp. 208-217).
In examining the legacy of the movement (chapter 7), McCann examines a number of common criticisms of rights
consciousness, among them that an emphasis on rights is a depoliticizing, fragmenting, ideologically moderating influence on
social movements; he concludes that in the movement for pay equity reform, on the contrary, rights consciousness had nearly
the opposite effect on all counts (pp. 227-244, 258-279). One of the most important legacies of the movement, he suggests,
was its radicalization of women's consciousness about inequality, the sense of empowerment that grew through organizing a
collective solution to pay inequities, and the creation of organizations and networks that may provide a valuable resource for
similar movements in the future.
I am impressed with McCann's framing of questions, his empirical research to address those questions, and the breadth and
depth of his analysis. In many ways this is a model for future qualitative studies: the author carried out a systematic case study
strategy and interview process, and he presents his results in a systematic manner by relying for his conclusions on survey
results and multiple quotations from both union organizers and rank and file members.
Still, some skeptics of the transformative potential of legal rights may find weaknesses in the book. One is a matter of
substantive interpretation: McCann interprets pay equity reform and the aspirations of activists as relatively radical attacks on
the status quo in law and in labor markets, yet some critical legal theorists nonetheless may find his interview results to be
consistent with their theories. For example, McCann's respondents, as he says, accepted the justice of "the law" writ large even
while they attacked particular manifestations of it; their aspirations, then, were hardly revolutionary (pp. 230-234). I suspect
that structuralist critics (e.g., Gabel and Kennedy, 1984) will remain unpersuaded that pay equity activists developed a truly
critical view of American law. By contrast, I suspect that most scholars will be impressed by the level of critique developed by
McCann's respondents and will find that the evidence undermines many of the claims of critical legal theorists, particularly
claims about the hegemony of liberal legalism.
A more serious potential problem concerns the degree to which McCann's discoveries are generalizable beyond the relatively
small group of activists that he interviewed. The strength of McCann's method -- in-depth, semi-structured interviews -- is also
its weakness. McCann notes at several points that his respondents formed a movement "subculture" (see especially p. 314). To
what extent does that subculture extend beyond a small group of core activists?
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This is a crucial issue if the question is, as McCann has framed it, whether legal rights have a broadly transformative potential
for social movements. Given the resources at his disposal, McCann might have added to his variety of methods a survey of a
representative sample of union members in one site of the struggle to determine the generalizability of his interview-based
conclusions. One such survey, conducted by Evans and Nelson (1989), found a surprising lack of knowledge about pay equity
reform among both union members and beneficiaries of the reforms in Minnesota. McCann identifies the Minnesota struggle as
particularly elite-dominated and non-participatory (p. 78). A valuable test of his thesis might have consisted of a similar survey
of union members or beneficiaries in a site, like Madison or Denver, that he identifies as particularly participatory (p. 78).
Alternatively, McCann might have addressed concerns about the generalizability of his conclusions in a much simpler fashion,
merely by numbering his respondents and identifying quotations by number. In the absence of such an identification system, he
identifies respondents in the text as, for example, "rank and file activist" or "clerical staff activist." But we have little explicit
reassurance that the bulk of the quotations from rank and file activists do not come from a small handful of his most articulate
respondents.
The depth of McCann's evidence and analysis, however, reduces such doubts to the level of a minor concern. RIGHTS AT
WORK is a very important achievement. It is a model of systematic qualitative research and will surely transform the debate
over the role of law in social change.
REFERENCES:
Gabel, Peter, and Duncan Kennedy (1984) "Roll Over Beethoven" 36 STANFORD LAW REV. 1-55.
Evans, Sara M., and Barbara J. Nelson (1989) WAGE JUSTICE: COMPARABLE WORTH AND THE PARADOX OF
TECHNOCRATIC REFORM (Chicago: University of Chicago Press.
Hartog, Hendrik (1987) "The Constitution of Aspiration and 'The Rights that Belong to Us ALL'" 74 JOURNAL OF
AMERICAN HISTORY.
Rosenberg, Gerald N. (1991) THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (Chicago:
University of Chicago Press).
Scheingold, Stuart (1989) "Constitutional Rights and Social Change: Civil Rights in Perspective," in JUDGING THE
CONSTITUTION, Michael McCann and Gerald Houseman, eds. (Glenview: Scott, Foresman).
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Williams, Patricia (1987) "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights" 22 HARVARD CIVIL
RIGHTS-CIVIL LIBERTIES LAW REV. 410-433.
