Benched.

• Author: SCHUCK, PETER H.

The pros and cons of having judges make the law

IMPACT LITIGATION--LAWSUITS THAT seek to use the courts to effect widespread social changes--enjoys a very good press. Impact litigation is a weapon brandished primarily by groups on the political left, as in the cases against Big Tobacco and the gun manufacturers. But even conservatives applaud it when their groups are doing the suing, as in challenges to affirmative action programs or environmental regulations.

We need to understand why impact litigation has come to play so central a role in our public life, and also why Americans of all ideological stripes should be wary of it. Reformers, I believe, expect too much from impact litigation, and even its critics often aim at the wrong target. Like war, impact litigation is a continuation of politics by other means, and like war it sometimes accomplishes good things. In the end, however, two practical and closely related concerns provide the strongest grounds for skepticism. First, judges' tools and capacities are not equal to the task, and, second, their well-intentioned rulings tend to aggravate the problems they seek to solve and often create new ones.

Two icons of impact litigation are Brown v. Board of Education, the 1954 school desegregation decision, and Roe v. Wade, the controversial abortion rights decision. Both were carefully designed by advocacy groups to bring an important constitutional issue before the courts that the groups felt the politicians were ignoring or mishandling. Sometimes impact cases are brought as class actions (as in Brown), sometimes as individual claims with broad social ramifications (as in Roe). Most impact cases seek a judicial order mandating that the defendant do, or refrain from doing, certain things (an "injunction") and rely on the U.S. Constitution. Many, however, seek money damages and invoke state law--for example, challenges to exclusionary zoning and property-tax-based school finance systems.

What is Impact Litigation's Appeal?

The mother of all impact litigation, of course, was Brown. The NAACP lawyers, led by Thurgood Marshall, launched a long, carefully orchestrated campaign to gain a court order invalidating segregation in the public schools. The ruling's logic encompassed all forms of state-supported discrimination against racial minorities, not just schools. Subsequent decisions enforced this ruling in many ways--by limiting freedom-of-choice plans, by requiring busing, by equalizing expenditures, and so forth--and the political branches and the states fell into line. Many post-Brown impact cases--for example, those asserting the rights of women, gays, illegitimates, prisoners, the disabled, the mentally ill and retarded, and undocumented immigrant children--have been squarely based on it. Today, almost 50 years later, only a few hard-line conservatives are willing to say that Brown was wrongly decided. The decision is widely hailed as the Warren Court's greatest, most unexceptionable legacy to American social justice, and many aspiring causes have sought to wrap themselves in Brown's mantle.

The appeal of impact litigation, however, goes well beyond Brown's reflected glory. The often stirring social drama it presents lies not simply in the clash of lofty ideals, competing interests, warring parties, and jousting lawyers. Impact cases also enact cherished American myths that ordinary politics often seems to mock: the little guy against the big system, the right to a day in court, principle's triumph over expediency, the taming of corporate power, the disciplining of rogue or heartless bureaucracies, and the possibility of fundamental and structural social change.

Courts, law firms, the American Bar Association, law schools, and the rest of the legal establishment tend to boost impact litigation. It not only generates more high-profile activity and fees for lawyers but also projects an idealized and idealistic image of the profession. Most people view representing the rights of minorities, the downtrodden, and the voiceless (if they are not criminal defendants) as more admirable than the more mundane, common activities of trolling for paying clients and litigating commercial disputes. Lawyers see impact litigation in much the same way athletes see the Olympics--a vivid showcase for their talents and proof of both their social importance and their selfless endeavors.

The mass media increasingly look to litigation for entertainment programming. Impact litigation meets that need while also being genuinely news-worthy. Skilled journalists can turn impact litigation into gripping theater, as exemplified by the many documentaries about Brown and civil rights, and by feature films like Gideon's Trumpet (on the right to counsel), Dead Man Walking (on death penalty litigation), A Civil Action (on environmental litigation), and The Insider (on tobacco litigation), along with a steady stream of newspaper and magazine articles. Leading foundations on both left and right fund impact cases, hoping to nourish social reform movements that are not yet politically ripe.

None of this could explain impact litigation's appeal unless it seemed effective, which it often does. I discuss many examples below. Indeed, impact litigation can achieve some goals even when the legal merits are weak. Consider the flurry of governmental lawsuits against gun manufacturers. To most legal experts these cases are non-starters; most judges will not even submit them to a jury because, among other things, the governmental plaintiffs, unlike shooting victims, have not suffered the kind of direct harm that courts require. These cases, however, are better understood less as solid legal claims than as political ploys--intended to spotlight issues and to embarrass and pressure the industry into adopting safer designs and marketing practices that the government either cannot or will not mandate itself.

In the gun litigation, this tactic has already borne some fruit. Smith & Wesson has agreed to a number of changes as the price of a settlement. This is a common goal and outcome of impact cases--about 95 percent of all civil cases settle before trial--and one likely result will be more safety locks. What might have led the company to surrender rather than litigate its strong legal position? Embarrassing documents might surface and the adverse publicity ginned, up by public agencies and their allies could tarnish its image. It also wanted to minimize the high costs of a protracted litigation against a coalition of deep-pocket governments. The company doubtless thought that, as the first defector from the industry defense, the plaintiffs would reward Smith & Wesson with a relatively painless settlement, just as they did with the Brooke...