ABSTRACT
Legal innovation, particularly in the areas of civil rights and civil liberties, emerges from the clash of complex social forces. Notably, social movements are often responsible for initially advancing these novel claims that create new legal rights. However, social movements do not exercise complete control over the process or pace of legal innovation, particularly in the judicial arena. Litigation is inherently conflictual, consisting of a dispute between two or more opposing parties. First, the defendants being sued are advancing their own arguments resisting the new rights and legal claims. Of course, judges and juries bring their own perspectives to the conflict and can shape the outcome of the litigation. Out of this mix emerge judicial opinions that give form to the legal rights. Then, once the innovation takes hold and becomes well-established, non-activist lawyers representing paying clients can begin to use it, which may further expand or contract the scope of the right (Zemans 1983).
