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This Article aims to reimagine impact litigation as movement law. It does so through a case study of Floyd v. City of New York, historic litigation which successfully challenged the New York Police Department’s aggressive stop and frisk policies. It documents a seminal period in the history of policing and community resistance by providing the first insider’s account of how a vibrant police accountability movement sought to leverage class action litigation to destabilize police narratives around Black criminality and significantly curtail the NYPD’s systemic program of discriminatory street encounters. It chronicles the multidimensional ways in which the litigation fed the movement and the movement fed the litigation, and how the movement ultimately utilized newfound political power to save the historic litigation outcomes from a hostile federal appellate court.

This Article proposes a theory of change in which a reimagined impact litigation can advance movement aims beyond the inherently vulnerable pursuit of judicial rights recognition in courts of law and makes an original contribution to the literature around movement lawyering by articulating concrete and replicable strategies and tactics through which the novel concept of “impact litigation as movement law” can both challenge the power of dominant political and social institutions and build the power of individuals and movements. The analysis is informed in great part through a process of oral history, drawing on interviews of numerous (but certainly not all) critical stakeholders in the Floyd process—lawyers and organizers alike—to bring the strategy, intensity, and high stakes of this fifteen-year struggle into the broader theoretical claims I seek to make.

Specifically, this Article documents how the Floyd legal team integrated community participation and expertise into the trial to further broader organizing campaigns. And it identifies five critical power-shifting strategies in the litigation that were transformational: the power of testifying; the power of watching; the power of evidence; the power of judgment; and the power of winning. Finally, this Article is a cautionary tale about the fragility of legal judgments, and a fresh and hopeful narrative about the power of mobilized movements and conscientious lawyers to achieve and protect successful litigation outcomes. Impact litigation as movement law offers a reimagined and replicable model for future efforts to challenge dominant power structures.

Less than two years after the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the landmark decision recognizing a right to choose abortion, a campaign to reverse Dobbs and reestablish a new right to reproductive autonomy has taken shape. This emerging strategy deploys what this Article calls state constitutional incrementalism: an effort to chip away at a federal precedent by scoring wins in state supreme courts.

This Article explores the promises and perils of state constitutional incrementalism, using reproductive rights, both past and present, as a critical case study. It traces the history of antiabortion incrementalism, with special attention to state courts, and then explores how contemporary abortion-rights advocates have drawn on the lessons of the past (among others) to reverse engineer this campaign in the present day. Two incrementalist strategies have emerged in state court as a result: efforts to secure state constitutional protections for abortion and to highlight the inadequacy of exceptions to state abortion bans. These efforts are incremental in more than one sense. None of them directly challenge federal precedent. In the short term, however, both promise to change the reality on the ground, state by state. And both can set the stage for a later challenge to a federal precedent.

A complicated picture of the costs and benefits of state constitutional incrementalism emerges from this study. State constitutional incrementalism can offer powerful evidence of the internal contradictions and unworkability of state precedents that echo a federal decision or state laws that a federal precedent permits. State constitutional incrementalism also facilitates experimentation with different jurisprudential foundations for constitutional rights. These experiments can afford a rare glimpse of the real-world efficacy of different approaches to liberty and equality. And a critical mass of state constitutional decisions can provide evidence of an “evolving,” popular understanding of the constitutional protections that may also matter in the federal context.

At the same time, however, the success of state reproductive-rights incrementalism, much like the fight to reverse Roe, will depend a great deal on the responsiveness of state courts to popular mobilizations for constitutional change. History shows that the incrementalist campaign to undo Roe owed as much to gerrymandering, efforts to deregulate campaign spending, and strategies to limit access to the vote than it did to lower court victories or incrementalist litigation. A new effort to restore reproductive rights will have to attend as closely to the same kinds of structural change.