Legal Commentary

The University of Chicago Press has just published a second edition of Gerald Rosenberg?s The Hollow Hope. Rosenberg argues forcefully in this careful study of constitutional litigation that ?U.S. courts can almost never be effective producers of significant social reform,? and that litigation is a drain on the scarce resources of reform advocates who could achieve more through the political process. He also asserts that ?courts are in a weak position to produce change [since] . . . [o]nly a minority of Americans know what the courts have done on important issues.? Rosenberg?s claims are based on careful empirical and historical analysis of U.S. Supreme Court decisions regarding racial segregation, abortion, environmental protection, electoral reapportionment, and criminal procedure reforms. The second edition of The Hollow Hope adds a new study on same-sex marriage.

Rosenberg?s sweeping claims about the inefficacy of litigation as a strategy for social change are based exclusively on his analysis of constitutional litigation. Surprisingly, Rosenberg ignores civil litigation, where lawsuits have been an engine of social change in areas such as product safety, environmental protection, and risk management. Perhaps the most dramatic example of the power of litigation to prompt social reform is the recent wave of clergy sexual abuse litigation. This litigation exposed the scandal in the first place; focused attention on the need for institutional reform; and prompted Church officials, law enforcement, and state legislatures around the country to take action. Clergy sexual abuse litigation compensated thousands of victims, held bishops publicly accountable for their misconduct, spurred these same bishops to institute nationwide training programs to prevent abuse and to report it when it happens, prompted law enforcement to investigate allegations and prosecute wrongdoers, and fueled law reform efforts in state legislatures around the country that strengthen enforcement of existing laws designed to protect children.

I make a more detailed case for the power of civil litigation as a strategy to address pressing social problems in Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press, 2008).

One might be temped to say that when one looks beyond Rosenberg?s study of a handful of high-profile examples of constitutional litigation?to the much more common activity of civil claims?it is Rosenberg?s thesis, rather than the promise of litigation, that appears hollow.