Law as an Instrument of Social Reform

Abstract

This article examines why groups seeking social reform in the United States (and elsewhere) commonly have resorted to litigation, and whether (and how) court-made law is an instrument of social reform. First, what is “law” and what is “social reform?” These definitions take on significance in light of the ongoing debate over judicial role and capacity generated first by the Supreme Court's social-policy interventions under the leadership of Chief Justice Earl Warren in the 1950s and 1960s, and, more recently, by the growing role of courts virtually worldwide and its close link with civil rights and civil liberties litigation. In this context, when scholars have examined whether “law” may be used as a tool of “social reform,” they generally have meant whether judge-made law, particularly in cases brought by social movement litigators, improves the conditions of the disadvantaged groups targeted by such litigation, particularly racial minorities, women, inmates, and people living in poverty.

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“…[McCann, 2008] However, whether legal mobilization is viewed as effective or successful may depend upon the evaluation time frame selected. [Epp, 2008] The highly fragmented, federalist system in the United States creates substantial incentives for legal mobilization. However, while the inability of the courts to enforce or implement their decisions (expansion or extension of rights to a new group) is very real as is the often well orchestrated [98] mobilization backlash by opponents, the "myth of rights" may be a short-term phenomenon, disappearing if a longer-term evaluation timeframe is taken.…”

“…However, while the inability of the courts to enforce or implement their decisions (expansion or extension of rights to a new group) is very real as is the often well orchestrated [98] mobilization backlash by opponents, the "myth of rights" may be a short-term phenomenon, disappearing if a longer-term evaluation timeframe is taken. [Epp, 2008] That is, the social policy impact of the courts may be realized through processes such as those articulated by the Advocacy Coalition Framework or the Punctuated Equilibrium Theory as well as what some scholars have termed the "administrative professions": the translation of judicial decisions to real and palpable changes in [social] policy is virtually entirely dependent upon intermediariescoalitions, subsystem actors, bureaucrats, policy or cause advocates, or other motivated experts who are both aware of and insist upon the realization of legal decisions in policies, programs, and regulations and are prepared to re-engage the legal system (or threaten to do so) if their requirements are not met. [Epp, 2008]…”