Reform Litigation on Trial

Michael W. McCann

doi:10.1111/j.1747-4469.1992.tb00637.x

1 Scheingold, Stuart, The Politics of Rights (New Haven, Conn.: Yale University Press, 1974) (“Scheingold, Politics of Rights”;).Google Scholar

2 The Preface (at xi-xii) also specifies that the analysis refers only to recent “liberal” court actions. This specification is rarely invoked in later pages to qualify broad generalizations about limited “judicial impact.” The implications of the analysis for past, present, and future “conservative” courts thus remain curiously murky.Google Scholar

3 349 U.S. 483 (1954).Google Scholar

4 410 U.S. 113 (1973).Google Scholar

5 Rosenberg's analysis graciously acknowledges my own earlier work on liberal public interest activists. McCann, Taking Reform Seriously: Perspectives on Public Interest Liberalism (Ithaca, N.Y.: Cornell University Press, 1986). Some of my critical comments about The Hollow Hope in the following pages reflect dissatisfaction with my own previous approach as well.Google Scholar

6 By far the most extensive and useful data concern the civil rights and women's rights movements. Rather less data are offered regarding the politics of environmental, criminal justice, and reapportionment policymaking.Google Scholar

7 E.g., see Blumrosen, Alfred, “The Law Transmission System and the Southern Jurisprudence of Employment Discrimination,” 6 Indus. Rel L Rev. 613 (1984). For a review of the recent literature, see Paul Burstein & Mark Edwards, “Employment Discrimination Litigation and Racial Disparity in Earnings” (delivered at 1992 Western Political Science Association annual meetings, San Francisco).Google Scholar

8 Cited in Henry Hampton & Steve Fayer, eds., Voices of Freedom: An Oral History of the Civil Rights Movement form the 1950s through the 1980s xxvii (New York: Bantam Books,1990). Consider also the reflections of Bernice Reagon, an activist in the Albany Movement coalition of Freedom Riders and desegregation advocates in Georgia, regarding the hopes raised by Brown v. Bd. of Education: “I remember when the 1954 Supreme Court decision came, my father saying, “Now that's the supreme law of the land!” Like the Supreme Court, that's it. I remember him reading from it in the house, and it being a really high time.” From an interview in Dick Cluster, ed., They Should Have Sewed That Cup of Coffee 12, 25 (Boston: South End Press, 1979).Google Scholar

9 Cited in Young, Richard P., ed., Roots of Rebellion: The Evolution of Black Politics and Protest since World War II 336 (New York: Harper & Row, 1970). Valuable evidence exists beyond mere attributions. For example, we might also note that civil rights demonstrations, marches, protests, and the like repeatedly were arranged in conjunction with the anniversary of Brown. This fact struck me as I perused historical studies used in my social movements class.Google Scholar

10 Doug McAdam, Political Process and the Development of Black Insurgency, 1930-1970 at 108 (Chicago: University of Chicago Press, 1982) (“McAdam, Political Process”;). While McAdam's assessment regards federal policy changes in the executive as well as judicial branches, he treats the latter as most important. See at 83–87 and chs. 5–6 generally. See also Aldon Morris, The Origins of the Civil Rights Movement (New York: Free Press, 1984) (“Morris, Civil Rights Movement”); Matthews, Donald R. & Prothro, James W., Negroes and the New Southern Politics (New York: Harcourt, Brace, & World, 1966) (“Matthews & Prothro, Negroes”).Google Scholar

11 The partial exception is environmental politics, for which Rosenberg acknowledges that the courts granted procedural victories but no new comprehensive substantive rights to the environment. In the other major areas, he focuses on the impacts of allegedly “bold” decisions.Google Scholar

12 Morris, Civil Rights Movement 28–29. See also Peltason, Jack W., Fifty-Eight Lonely Men (Urbana: University of Illinois Press, 1971). Rosenberg (at 72–73) simply states that the first constraint was overcome by the NAACP strategy of legal advocacy.Google Scholar

13 On the negative social impact of judicial logic, see Bumiller, Kristin, The Civil Rights Society: 7% Social Construction of Victim (Baltimore: Johns Hopkins University Press, 1988)(“Bumiller, Civil Rights Society”).Google Scholar

14 Rhonda Copelon, “Beyond the Liberal Idea of Privacy: Toward a Positive Right of Autonomy,” in Mc, Michael W.Cann & Houseman, Gerald L., eds., Judging the Constitution: Critical Essays on Judicial Lawmaking (Boston: Scott, Foresman/Little, Brown, 1989) (“McCann & Houseman, Judging the Constitution”;).Google Scholar

15 Rosenberg does acknowledge in half a paragraph some feminists' complaints that the “equality standard is flawed” (at 213), but this is more an aside than a topic of analysis. The literature on this theme is endless. See, e.g., Schultz, Vicki, “Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the “Lack of Interest” Argument,” 103 Haw. L Rev. 1749 (1991); Williams, Joan C., “Deconstructing Gender,” 87 Mich L Rev. 797 (1989).Google Scholar

16 Of course, limited judicial capacity may make judges reluctant to act boldly. But Rosenberg does not directly advance and substantiate this case, much less consider alternative explanations.Google Scholar

17 This includes not only the copious critical evaluation of ideological biases in court decisions themselves but the ways in which those logics actually compound citizen experiences of powerlessness. See Bumiller, Civil Rights Society. Google Scholar

18 It is relevant to speculate about how both the will and capacity of executive branch civil rights regulators surely would have been undermined by an indifferent or even hostile judiciary. Indeed, this points to one reason why litigation often is important for progressive groups—i.e., to challenge judicial deference to unjust actions or court invalidation of just actions by other institutions. Rosenberg alludes to this defensive role, but discounts its significance for political struggles (at 342).Google Scholar

19 A illuminating discussion of this point is provided by Jonathan Casper, “The Supreme Court and National Policy Making,” 70 Am. Pol Sci Rev. 50 (1976).Google Scholar

20 Consider, eg, Olson, Susan M., Clients and Lawyers: Securing the Rights of Disabled Persons (Westport, Conn.: Greenwood Press, 1984) (“Olson, Clients and Lawyers”;); Peter Irons, Justice at War (New York: Oxford University Press, 1983); Timothy J. O'Neill, Bakke and the Politics of Equality: Friends and Foes in the Classroom of Litigation (Middletown, Conn.: Wesleyan University Press, 1985); Neal Milner, “The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation Groups,” 8 Law & Pol'y 105 (1986). A relevant theoretical argument grounded in political experience is Schneider, Elizabeth M., “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” 61 N.Y.U.L. Rev. 554 (1986).Google Scholar

21 The retorts of minority legal scholars to CLS scholars apply here to Rosenberg's top down analysis as well. As Kimberlé Williams Crenshaw notes, “Removed from the reality of oppression and its overwhelming constraints, the Critics cannot fairly understand the choices the civil rights movement confronted or, still less, recommend solutions to its current problems.”“Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” 101 Haw. L Rev. 1352 (1988).Google Scholar

22 It is hardly surprising that Rosenberg cites far more critics than defenders of the dynamic court view. In fact, both his model and judgments closely parallel earlier impact studies finding that courts have only small effects and require support from nonjudicial actors to matter. See Johnson, Charles A. & Canon, Bradley C., Judicial Policies: Implementation and Impact (Washington, D.C.: Congressional Quarterly, 1984). Critical Legal Studies scholars are one of the better publicized exemplars of “hopelessness” regarding the efficacy of legal strategies.Google Scholar

23 Notable scholars identified with one or more of these approaches are too many to mention. My own quick list includes, in alphabetical order: John Brigham, Kristin Bumiller, David Engel, Marc Galanter. Joel Crossman, Joel Handler, Christine Harrington, Lynn Mather, Sally Engle Merry, Neal Milner, Martha Minow, Susan Olson, Austin Sarat, Stuart Scheingold, Elizabeth Schneider, Susan Silbey, Barbara Yngvesson, Zemans, Frances K. Many “minority” scholars are relevant as well, including Derrick Bell, Kimberlé Williams Crenshaw, Richard Delgado, Mari Matsuda, and Patricia Williams. See references in this review for relevant writings, few of which are cited in Rosenberg's book.Google Scholar

24 “There must be a clear standard for what counts as change. Usually the standard is obvious. The Court sets out goals to be achieved and the evidence is examined to determine if those goals were achieved” (at 269). The first two contingent conditions in Rosenberg's model specify the equation of “compliance” with impact, while the other two imply action in conformity with judicial will. Judicial impacts on issue “salience” are also considered, but only in very narrow ways.Google Scholar

25 See Zemans, Frances Kahn, “Legal Mobilization: The Neglected Role of the Law inthe Political System,” 77 Am Pol. Sci. Rev. 690 (1983); Lynn Mather & Barbara Yngvesson, “Language, Audience, and the Transformation of Disputes,” 15 Law & Soc'y Rev. 775 (1980-81 Richard Lempert, “Mobilizing Private Law: An Introductory Essay,” 11 Law & Soc'y Rev. 173 (1976); Marc Galanter, “The Radiating Effects of Courts,” in Boyum, Keith D. & Lynn Mather, eds., Empirical The wies of Courts (New York: Longman, 1983) (“Galanter, ‘Radiating Effects' “); William L. F. Felstiner, Richard Abel, & Austin Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …,” 15 Law & Soc'y Rev. 631 (1980-81).Google Scholar

26 See sources cited in note 25. See also Miller, Richard E. & Austin Sarat, “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” 15 Law & Soc'y Rev. 525(1981).CrossRef Google Scholar

27 John Brigham in The Cult of the Court 204 (Philadelphia: Temple University Press, 1987) (“Brigham, Cult of the Court”). To limit court impact to positive terms of compliance—whether by command, providing incentives/costs, persuasion, or inspiration-has “the conceptual richness of a toggle switch,” argues Brigham (id at 205). See Becker, Theodore L. & Feeley, Malcolm M., eds., The Impact of Supreme Court Decisions 212 & 211–229 generally (Oxford: Oxford University Press, 1973) (“Becker & Feeley, Impart”;).Google Scholar

28 Galanter, “Radiating Effects” at 126. See generally Brigham, Cult of the Court ch.7.Google Scholar

29 In my view, Rosenberg is on solid ground in questioning widespread assumptions that court decisions tend to “legitimate” (by moral persuasion) certain norms, values, and policies among the general public, and especially among marginalized groups.Google Scholar

30 Brigham, Cult of the Court 196. See also Klare, Karl E., “Law-Making as Praxis,” 40 Telos 123 (1979). Such practical legal knowledge differs from Rosenberg's terms in two ways. First, it does not require direct familiarity with official court acts but often is mediated by more proximate institutional relations and authoritative associations. Citizen action on judicially generated information thus does not require ability to name cases, judges, or technical terms, much less the details of specific opinions. Second, practical legal knowledge infuses material activity and ongoing social relationships. Mass surveys measuring abstract opinions, attitudes, and preferences (such as emphasized by Rosenberg) reveal little about such working knowledge. See John Brigham. “Bad Attitudes: The Consequences of Survey Research for Constitutional Practice,” 52 Rev. Politics 582 (1990). See also my forthcoming book, Mc, Michael W.Cann. Rights at Work: Law and the Politics of Pay Equity ch. 1 (Chicago: University of Chicago Press, 1994) (“McCann, Rights at Work”;).Google Scholar

31 For review and development of this concept, see McAdam, Political Process (cited in note 10).Google Scholar

32 Galanter, “Radiating Effects” at 136.Google Scholar

33 Scholars thus emphasize that law is an “arena of struggle” rather than a set of commands from judges that citizens either accept or reject. See Scheingold, Stuart, “Constitutional Rights and Social Change,” in McCann & Houseman, Judging the Constitution (cited in note 14) (“Scheingold, ‘Social Change’“); E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975) (“Thompson, Whigs and Hunters”;).Google Scholar

34 Minow, Martha, Making All the Difference: Inclusion, Exclusion, and American Law 310 (Ithaca, N.Y.: Cornell University Press, 1990).Google Scholar

35 This also highlights the point that judicial victories are not always necessary to the success of legal tactics. Legal advocacy can “have political meaning independent of its success or failure in the courts.” Schneider, 61 N.Y.U.L. Rev. 606 (cited in note 20). See also Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” 96 Yale LJ. 1860(1987). Again, Rosenberg's equation of “change” with affirmative compliance is limiting in this regard.CrossRef Google Scholar

36 Mnookin, Robert H. & Lewis Kornhauser, “Bargaining in the Shadow of Law: The Case of Divorce,” 68 Yak L.J. 951 (1979).Google Scholar

37 This framework recalls Carl Friedrich's classic argument regarding the “law of anticipated reactions” in Constitutional Government and Democracy (Boston: Ginn, 1946). See also Malcolm Feeley's insightful discussion of how “anticipated reactions” are ignored inmost judicial impact literature. Feeley, “Power, Impact, and the Supreme Court,” in Becker & Feeley, Impact 225 (cited in note 27).Google Scholar

38 Galanter, “Radiating Effects” 123 (cited in note 25).Google Scholar

39 These categories themselves are not discrete entities but are better understood as ideal types representing end points on a continuum of techniques which, in practice, are indeterminate, shifting, and dynamically interrelated. See Sarat, Austin, “The ‘New Formalism’ in Disputing and Dispute Processing,” 21 Law & Soc'y Rev. 695 (1966).Google Scholar

40 This reflects in large part a reorientation to thinking about power, social struggle, and change that narrows the gap between everyday disputes and large-scale “public” conflicts. See Silbey, Susan S. & Austin Sarat, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 167 (1987); and generally James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, Conn.: Yale University Press, 1985).Google Scholar

41 I would include among these complex works the formidable historical studies by E.P. Thompson, Whigs and Hunters, and Tigar, Michael E. & Levy, Madeleine R., Law and the Rise of Capitalism (New York: Monthly Review Press, 1977). Scheingold's influential discussion of recent legal reform efforts (Politics of Rights, cited in note 1) has been followed by related works on specific policy reform legacies. See Olson, Clients and Lawyers (cited in note 20); Sorauf, Frank J., The Wall of Separation: The Constitutional Politics of Church and State (Princeton, N.J.: Princeton University Press, 1976); Mark Kessler, Legal Services for the Poor: A Comparative and Contemporary Analysis of Interorganizational Politics (Westport, Conn.: Greenwood Press, 1987); Rita Bruun, “The bldt Decision: Legal Victory, Political Defeat,” 4 Law & Pol'y 271 (1982); Staughton Lynd, “Communal Rights,” 62 Tex. L Rev. 1417 (1984); Neal Milner, “The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation Groups,” 8 Law & Pol'y 105 (1986); Jack Katz, Poor People's Lawyers in Transition (New Brusnwick, N.J.: Rutgers University Press, 1982). General interpretive arguments deserving note include Crenshaw, 101 Haw. L Rev. (cited in note 18), on the civil rights legacy, and Schneider, 61 N.Y.U.L Rev. (cited in note 17), on the women's movement.Google Scholar

42 Scheingold, “Social Change” (cited in note 33).Google Scholar

43 Supra note 10.Google Scholar

44 Morris, Civil Rights Movement 32, 34 (cited in note 10). See also Marchews & Prothro, Negroes (cited in note 10).Google Scholar

45 Morris, Civil Rights Movement 39.Google Scholar

46 Id. at 26. Morris acknowledges that “a legal ruling such as the 1954 decision does not a movement make” (id. at 81), but this obvious point does not obscure his emphasis on the important role of legal tactics in movement development.Google Scholar

47 McCann, Rights at Work (cited in note 30).Google Scholar

48 452 U.S. 161 (1981).Google Scholar

49 See Stone, Diana L., Pay Equity Sourcebook (San Francisco: Equal Rights Advocates, 1987).Google Scholar

50 Legal tactics lost their power in the late 1980s as increasingly conservative courts further narrowed the doctrinal basis for discrimination claims. These changes in judicial decisions greatly contributed to the dissipation of the movement. In short, while only moderate and mixed success provided pivotal resources for advancement early on, consistent losses in court tipped the balance of power dramatically against women workers.Google Scholar

51 Scheingold, Politics of Rights (cited in note l), and “Social Change” (cited in note33). In this regard, I think that Rosenberg's skepticism is warranted but for reasons a bit different than he suggests.Google Scholar

52 Austin Sarat, “… The Law Is All Over: Power, Resistance and the Legal Consciousness of the Welfare Poor,” 2 Yale J.L & Humanities 343 (1990).Google Scholar

53 The classic study in this tradition is Marc Galanter, “Why the ‘Haves' Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Soc'y Rev. 95 (1974).Google Scholar

54 Bumiller, See, Civil Rights Society (cited in note 13); Sarat, 2 Yale J.L. & Humanities.Google Scholar

55 See Scheingold, “Social Change”; Thompson, Whigs and Hunters (cited in note 30); Amy Bartholomew & Alan Hunt, “What's Wrong with Rights,” 9 Law & Inequality 501(1990); Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working-class Americans (Chicago: University of Chicago Press, 1990).Google Scholar

56 This recognition of relevant contingencies shaping law's variable power parallels those Rosenberg assigns to the “tide of history” (chs. 5, 9). As he portrays it, the courts only responded to and reflected these more fundamental changes. This causal perspective is problematic, however, in that it obscures why people often deploy legal options. The reason is that legal tactics often offer one of the few—however limited and risky—feasible options for defiant action. given that large historical trends (changes in productive relations, war, etc.)are uncontrollable and other political options (legislatures, bureaucrats, public opinion)often are inadequate alone or even less mobilirable. Legal tactics can be important to keep challenge alive at some level and to help in some actionable if limited regard in reshaping the overall opportunity structure in ways that may encourage eventual escalation of conflict. This again is, as I read them, the thrust of McAdam's and Morris's interpretations of legaltactics in the civil rights struggle, supra note 10.Google Scholar

57 Frequently invoked theoretical works on this conception of power include Steven Lukes, Ppwer: A Radical View (London: MacMillan, 1974); John Gaventa, Power and Powerlessness:: Quiescence and Rebellion in an Appalachian Valley (Urbana: University of Illinois Press, 1980); Nancy C. M. Hartsock, Money, Sex, and Power: Toward a Feminist Historical Materialism (Boston: Northeastern University Press, 1983).Google Scholar

58 Supra note 27.Google Scholar

59 One reason is that the indirect effects of judicial action are not as amenable to positivist techniques of data gathering as are other manifestations of causal power. “As we move farther away from focusing on direct, tangible results, the use of the theoretical framework and evaluations will become increasingly imprecise. While lack of precision is regrettable, the indirect effects have to be discussed …; they may be the most important part of all,” argues Joel Handler in Social Movements and the Legal System: A Theory of Law Reform and Social Change 210 (New York: Academic Press, 1978). See also McCann, Rights at Work ch. 1 (cited in note 30). At the same time, this opposition should not be exaggerated, for different methods are not mutually exclusive. Many scholars in the dispute-centered tradition (including myself), for example, use conventional quantitative methods. The key difference is in the tendency among the latter to view statistics more skeptically and to emphasize the need for copious qualitative evidence as well. See Harrington, Christine B. & Barbara Yngvesson, “Interpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990).CrossRef Google Scholar

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