Vol. 8 No. 9 (September 1998) pp. 356-358.

LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE by David A. Schultz (Editor). New York: Peter Lang, 1998. 354 pp. Paper $32.95. ISBN 0-8204-3492-2.

Reviewed by Stefanie A. Lindquist, Department of Political Science, University of Georgia. Email: cmslind@arches.uga.edu.

 
Since the time of its publication in 1991, Gerald Rosenberg’s THE HOLLOW HOPE has served as a lightning rod for discussion and debate over the role of courts as agents of social reform and change. In this tradition, David Schultz’s edited volume LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE provides some perspectives on the accuracy of Rosenberg’s thesis through a series of essays that evaluate courts’ efficacy as agents of social reform. In addition, the book treats us to a thoughtful essay by Rosenberg himself. In what follows, I briefly describe the essays presented in the book, assess their relative merits, and finally comment on the book’s overall effectiveness.

The essays in LEVERAGING THE LAW generally respond to THE HOLLOW HOPE, although they do so from varying perspectives and with varying degrees of success. According to THE HOLLOW HOPE, structural constraints on the judiciary render the courts virtually powerless to produce significant social reform unless those constraints are somehow weakened and unless certain other favorable conditions prevail. The essays in LEVERAGING THE LAW often challenge these principles, claiming that the courts have a greater impact on social change and on the national policy-making process than conceded by Rosenberg.

LEVERAGING THE LAW begins with an introductory essay by Editor David Schultz, who provides a brief intellectual history of theories of judicial policy-making leading to THE HOLLOW HOPE. Beginning with the Federalist Papers, Schultz takes us through DeToqueville, Wechsler, Bickel, Ely, Bork, Chayes, Horowitz, Rabkin, Cooper, and finally to Rosenberg and his debate with Michael McCann. Following Schultz’s introduction, contributing authors John Bohte, Roy Flemming and B. Dan Wood present an evaluation of the Supreme Court’s power to affect the national agenda setting process by influencing issues considered by the media. The authors develop and estimate several time series models of monthly news coverage in three broad policy areas addressed by major Supreme Court decisions. According to the authors, these models reveal (contrary to Rosenberg’s findings) that "the Supreme Court’s voice in the national dialogue is obviously heard, and its views shift the focus of national discourse" (at 53).

In the second chapter, Kevin McMahon and Michael Paris present two case studies in refutation of Rosenberg’s thesis. First, McMahon analyzes the Montgomery Bus Boycott, drawing upon memoirs of civil rights leaders to argue that BROWN inspired activists like Ralph Abernathy and M.L. King. McMahon concludes that BROWN was critical "in shaping the strategy of the boycott and in producing its victorious outcome" (at 67). Paris similarly argues that, in the area of educational finance, elite advocates of reform at the state level were generally successful in using law and courts to achieve their objectives. In a third case study, Robert Van Dyk’s evaluation of pro-choice legal mobilization and the decline of clinic blockades suggests that litigation can be an effective strategy, especially when it is used to protect the status quo.

Following presentation of these case studies, LEVERAGING THE LAW includes two essays that address the merits of THE HOLLOW HOPE from a more theoretical perspective. The first such essay, written by David Schultz and Stephen E. Gottlieb, presents a broad-ranging critique of Rosenberg’s book. Among other things, Schultz and Gottlieb claim that Rosenberg: misunderstands the nature of judicial policymaking, misconstrues the nature of causal influence and the "power of silence," misinterprets the nature of judicial decrees, and misapplies social scientific techniques. In contrast, Brad Cannon’s chapter "revisiting" THE HOLLOW HOPE presents a more tempered response to Rosenberg’s thesis. Canon’s analysis relies in part on his own model of judicial impact presented in JUDICIAL POLICIES: IMPLEMENTA-TION AND IMPACT (with Charles Johnson). In addition to school desegregation, abortion, reapportionment, and criminal justice reform (areas explored by Rosenberg), Canon evaluates judicial policy making in the areas of schoolhouse religion, advertising by professionals, and the availability of sexually related materials. In these expanded areas, Canon finds some evidence of effective judicial policymaking. Canon also concludes that the Court may have greater impact than attributed by Rosenberg, largely because Rosenberg was willing to find impact only where reformers’ goals were completely implemented. (For example, Rosenberg concludes that BAKER v. CARR and REYNOLDS v. SIMS were unsuccessful because the reapportioned state legislatures did not ultimately enact liberal, urban-oriented policies).

The book also includes two essays that comment on the influence of law more broadly defined. In an essay entitled "Juricide," Marvin Zalman laments the "death of the law" in modern scholarship. Zalman claims that some political scientists and legal theorists view law as "an irrelevant or pernicious process [that] either clouds understanding of what ‘really’ happens in courts and society or retards social progress" (at 294). In his short essay, Zalman ambitiously takes on Segal and Spaeth’s attitudinal model, Rosenberg’s constrained court model, and the postmodern movement in legal scholarship. In the final chapter, Michael McCann makes some observations about how to define law, how to locate law in the "social context," and how to study legal mobilization so as to account for the rich and contextual nature of legal norms.

Rosenberg’s own contribution effectively responds to many of the issues raised in these preceding essays. While it is always easier to have the "last word," Rosenberg’s essay presents a balanced and gracious response. His main point is that an emotional attachment to the vision of courts as agents of social reform often clouds critics’ views of the empirical evidence or leads them to make claims without sufficient empirical grounding. Moreover, much of Rosenberg’s response is devoted to delineating the conclusions his book did not make, since several of the contributing authors overstate the book’s conclusions.

Indeed, although a book of substantial influence, THE HOLLOW HOPE’s conclusions are not as broad as claimed by several of the contributing authors. First, while his theory is applicable to courts at all levels, THE HOLLOW HOPE musters evidence that almost exclusively reflects on the capacity of the United States Supreme Court to achieve social change. Second, Rosenberg focuses only on significant social reform, which he describes as "policy change with nationwide impact." He makes no claims about the ability of courts to make policy effectively on a more modest or local scale. In addition, Rosenberg focuses on courts, not law more broadly defined—he makes no claim that law, as opposed to courts, is "epiphenomenal" or meaningless in the pursuit of social justice. Finally, he acknowledges that courts can achieve significant social reform under certain conditions. This is a much more modest argument than one which claims that courts and law are impotent institutions, period. Yet several of the authors whose essays appear in LEVERAGIN G THE LAW fail to recognize these important qualifications or parameters to Rosenberg’s theory.

These observations lead to my overall assessment of the book. The quality of the essays included in LEVERAGING THE LAW is somewhat mixed, precisely because several of the authors overstate Rosenberg’s objectives and conclusions, thus creating a straw man as their target. Although a number of the authors make sound arguments on the basis of empirical evidence rigorously evaluated or offer helpful methodological suggestions, others are almost shrill in their condemnation of THE HOLLOW HOPE, even when their criticisms lack empirical foundation. People who study law and courts want them to be effective institutions, especially in furthering social justice. On this point, Rosenberg’s observation appears to be correct: emotional reactions to arguments against judicial efficacy may often obscure the quest for empirical verification. Better now to begin working on defining the conditions under which courts can be effective policymakers (for an excellent example, see e.g., Feeley and Rubin 1998). Or, as Rosenberg quips in his essay, let’s put the myths behind us and "get on with it!"
 

REFERENCES

Feeley, Malcolm and Edward L. Rubin. 1998. JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS. Cambridge: Cambridge University Press.


Copyright 1998