I agree with Mark that litigation is no substitute for activism and with Doug that the courts are limited as a venue for social change. Gerald Rosenberg has a nice book called The Hollow Hope in which he argues based on case studies that the courts do not initiate but in fact tend to follow political trends that originate elsewhere, mainly in the streets. Still, one has to remember that short of revolution progressive reforms have to be written into law and interpreted by the courts if they are to be effective. In fact even after the revolution this is true. But on this side of that divide litigation plays an important role in institutionalizing the successes of the movements. As to rights-fetishism and Constitution-worship, Doug is correct about the liberals. But there's no particular percentage in Constitution-bashing outside the context of a political theory class. In practical terms the Constitution means what the Supreme Court says it means and not what the Founders might have thought it meant. Constitutional law is not-very veiled politics. So the struggle ought to be over what we want it to mean and how to get the courts to follow our lead on this. A small point. Whether politics is a bad word in law school must depend on where you are. It doesn't seem to be here at OSU. My Con Law professor is worried that Con Law might be politics and not law, but I don't think he thinks taht politics is bad per se. Anyway, better that law should be politics than economics, at least of the econ and law sort so popular here and elsewhere! Perhaps Mark F or I should post something about that: would pen-l=ers be interested? --Justin On Tue, 30 Jan 1996, Mark Fenster wrote: > Doug Henwood wrote (in response to Justin Schwartz): > > >>Hey, Doug, go easy on us (future) radical lawyers. Litigation isn't so > >>bad. You got a problem with Brown v. Board of Education or Roe v. Wade, to > >>start with? > > > >Obviously not their substance, but there's a deep, largely unexamined > >elitism behind liberal litigationism, in which the courts are used as a > >substitute for mass organization. The liberal elite shares the Founders' > >(and talk about a cult of personality, the thing about the Founders and > >their sacred text, the Constitution!; for a fine debunking of all that see > >Dan Lazare's new book, The Frozen Republic) distrust of the masses, seeing > >them as a volatile force to be contained. So when the political tide > >reversed, and a bunch of troglodytes were appointed to the federal bench, > >the liberals were caught short, with nowhere to turn but Anthony Lewis. > > > >Doug > > > > A number of folks have made this argument, including Cass Susstein and > Bonnie Honig in her fine book _Political Theory and the Displacement > of Politics_ (Cornell UP, 1993). Much instruction in "elite" law schools > simultaneously celebrates and wanly problematizes such "judicial activism" > (in order to be properly "unbiased" in approach); students, however, > as is the tendency of budding elites, tend to embrace this "distrust > of the masses" in favor of their chosen profession in a rather knee- > jerk way. Show them _Brown v. Board of Ed_ and their chests fill; > raise the possibility that tomorrow the Court could rule the other > way on an equally controversial issue and their eyes glaze. > "Politics" in law school is a term of derision (ie, "That > [wrong] decision was political"). "Mobilization" does not compute. > > I wouldn't want to go so far as to say that litigation is mere > ideology, as it not only can be used (given sympathetic hearing from a > "reasonable" judiciary) to make substantive gains (eg, for > labor, for racial minorities) but also to demonstrate ideological contra- > dictions (eg, the rash of lawsuits in the 70s against the Vietnam > War and government secrecy which were bound to lose but forced the Burger > Court into bizarre gyrations to justify their decisions). > > But on the whole, I certainly agree that litigation is no substitute > for and indeed can hinder mass mobilization. > > Mark Fenster > [EMAIL PROTECTED]
