Benched.

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 Group in the tobacco litigation. Moreover, Smith & Wesson probably hoped to use the plaintiffs as a cat's paw, as Brooke successfully did, to enrich itself and damage its industry rivals as they continued to litigate. (Interestingly, Smith & Wesson, having reaped few of the expected benefits, is

now rethinking the deal that it made.)

The state governments' suits against tobacco show two things: Legal rules can hobble a case even when the facts seem compelling, and lawsuits need not prevail in order to be politically effective. Consider the tobacco litigation. Even though smoking can cause cancer and even though the industry may have misled regulators and smokers, those facts alone would not suffice to win the case. A government would also have to prove that, like smokers, it was a direct victim of this deception and suffered direct financial harm as a result--a particularly daunting task given that governments may actually have gained a net financial benefit from smoking due to their vast tax revenues from the sale of tobacco products and their reduced pension liabilities from premature smoking-related deaths. The legal claims of individual smoker-plaintiffs, who do not face these problems, are not much stronger. For decades, smokers lost all suits against the tobacco industry because juries penalized them for their choices to smoke, while the courts found the mandated cigarette warnings legally sufficient to put the onus back on the plaintiffs. These "free-will" defenses will probably grow stronger over time unless juries accept smokers' claims that the companies addicted them as minors. Smokers did manage to overcome these defenses in two recent cases in Florida and California, a rare event. These victories, however, may not stand up on appeal--especially in Florida where the smokers brought a class action, which most courts reject in such cases.

Even so, tobacco litigation documents have already succeeded in demonizing the industry, affecting its stock prices and future prospects, and transforming the political landscape. The gun litigation, targeting a much weaker industry, may ultimately do the same. Much of the public, not to mention public-health agencies, favors these outcomes, and it seems beside the point, even churlish, to note how weak the plaintiffs' legal positions are. Impact litigation of this kind seems to vindicate the ironist's axiom that nothing succeeds like failure.

So What's the Problem?

If even legally weak impact litigation helps to make powerful social actors more accountable, reinforces the rule and prestige of law, and produces both educational and entertainment value, what is the problem? Where one stands on this question depends to some extent on where one sits politically. The left tends to favor suits against cigarettes, guns, prison systems, and welfare agencies while the right rallies behind legal challenges to environmental regulation, mandatory school busing, and restrictions on school prayer and abortion. Sometimes even those who claim to oppose impact litigation on principle buy into it, as when conservatives support a balanced-budget amendment to the constitution that would move the most technical, highly-politicized fiscal issues into the courts.

Why should a conscientious citizen of any political persuasion worry about using the courts, as impact litigation aims to do, to make large-scale public policy? Begin with a low-visibility problem: the potential for lawyer-client conflicts of interest. Although an ethical lawyer must always subordinate her own interests, including using the case to advance her social or political agenda, to the client's narrow goal of securing a favorable outcome, the special incentives and dynamics of "cause lawyering" encourage such conflicts--over litigation strategy, settlement offers, fees, and other factors. This risk may be smaller in class actions because of the court's legal duty to supervise the conduct and fees of the lawyers representing the class. Even there, however, the risk remains because of judges' limited ability to monitor aggressive lawyers.

This concern helps to explain why the Supreme Court recently overturned several asbestos class-action settlements that trial judges had approved. Impact litigation on behalf of the mentally retarded engendered conflicts between the lawyers, who sought to close the hospitals and move patients to community facilities, and the desire of many families to keep their relatives institutionalized (albeit under better conditions). A different kind of conflict is occurring in the tobacco litigation, where state plaintiffs poised to collect billions of settlement dollars now must compete with smokers and their lawyers whose recoveries, which might include huge punitive damage awards, could bankrupt the manufacturers before the states can collect.

Two more fundamental critiques often heard in law school classrooms, courtrooms, and legislative chambers go to the legitimacy and institutional competence of judges to decide institutional reform cases. The legitimacy critique notes that the United States. is organized constitutionally around separation of powers and majority rule. In such a polity lawmaking power must be lodged in representative and democratically accountable institutions. Thus the courts, being neither, may not legitimately exercise such lawmaking power and will erode their stock of legitimacy if they seek to do so. By contrast, the institutional competence critique argues that quite apart from any illegitimacy, the courts are poorly equipped to make law because of their training, access to information, the constraints of the adversary process, the limited efficacy of judicial remedies, and other inherent institutional attributes.

Judicial Legitimacy

Although the legitimacy critique lends itself to rhetorical flourish, it is far from clear what judicial legitimacy means. I define it as a sense that one is morally obliged to obey a judicial decision because it is law even if one strongly opposes it. A decision that fails to elicit this kind of moral response--or worse, elicits moral revulsion or rebellion--is illegitimate. One may treat a decision as legitimate out of ignorance, indifference, or habitual deference to authority, not just out of a considered moral duty. By the same token, viewing a decision as illegitimate does not necessarily spur one to any particular kind of action.

Consider Roe v. Wade, a notorious impact case that many thoughtful Americans denounce as illegitimate and a small number even confront with violence. Even so, the vast majority, including many who oppose it as wrongly decided or bad public policy, still treat it as law and obey it accordingly. Is Roe an illegitimate decision? The answer seems to depend on how many people view it not merely as bad law but as usurpation (a distinction not made in public opinion surveys) and how willing they are to act on that conviction.

The legitimacy critique also over simplifies the nature of our law and politics. As every law student knows, the distinction between interpreting law and making it is a fuzzy one, especially when (as in much impact litigation) the judge must interpret open-ended phrases like "equal protection" and "due process of law." American politics is a remarkably fluid mixture of principle, discretion, pragmatism, competition, and raw power. Legislators who wish to curb "runaway judges" have many levers that, for sound political or other reasons, they often decline to use. By the same token, judges who decide "political" questions (as they often cannot avoid doing in our system) must expect harsh criticism or even reprisals (within constitutional bounds) intended to hold them politically accountable.

The legitimacy critique is also replete with interesting but unintended ironies. First, public esteem for the courts has been remarkably stable (and relative to other government institutions, remarkably high) over a long period during which impact litigation came of age and judicial activism (another ill-defined but rhetorically robust notion) both waxed and waned. Changes in the kinds of cases that the courts hear and how they decide them seem to have little effect on perceived legitimacy.

A second irony is even more striking. The Supreme Court's most controversial decisions rested on constitutional arguments that many commentators rejected at the time, Brown included. In each case, friendly critics strongly warned the Court not to enter what Justice Felix Frankfurter (in one of these cases) called a "political thicket." He was referring to social reform issues disguised as lawsuits, and he thought that courts could not adjudicate such policy disputes and still preserve their legitimacy. Yet these very reform projects--school desegregation, control of police misconduct, legislative reapportionment, limitations of presidential prerogatives, abolition of school prayer, and regulation of abortion, to name just a few--have in fact burnished the Court's public prestige. For different reasons, these cases have helped the Court to prevail at the "bar of politics" (in the phrase of the great constitutional scholar Alexander Bickel), and its political success has buoyed the prestige of lower courts as well.

A final irony: the Court's secure stock of legitimacy from these earlier battles has encouraged attacks on it. Now that we possess the advantages of living in a society in which Jim Crow is dead, legislatures must reapportion themselves, police must warn suspects of their rights, religious groups cannot directly receive government subsidies, and abortions are widely available to women who do not wish to bear children, it is seductively easy to complain that the Court should have left these issues to the politicians, that it went too far, or that (as political scientist Gerald Rosenberg has argued) these important social gains would have occurred anyway had the courts not entered the fray. With these gains firmly entrenched--thanks in part to the Court--we can criticize it now for what it did then without any risk of losing the gains if we err in our counte-rfactual judgments. Because we can never know if we erred, we can never be refuted.

Institutional Competence

If the legitimacy critique is overblown, the institutional competence critique is insufficiently appreciated. Impact litigation maximizes the gap between a court's functional disabilities and the demands placed on its capacities. Although these disabilities are numerous, many of the most important can be reduced to three--information, incentives, and rights--which have bedeviled impact cases initially considered stunning victories for reform.

In our adversary system, a judge must base her decision almost exclusively on admissible evidence proffered by the lawyers and measured against the law. Her task is to resolve specific disputes, not solve social problems. The information she needs is usually quite limited in scope, historical in nature, of a familiar kind, and accessible through conventional evidence. Yet, most institutional reform cases seek to change social structures, practices, and values, that are created by a vast number of individuals interacting in intricate, opaque ways with incomplete information. Reforming an urban police department or school system is an exceedingly complex kind of problem in which a change in one relationship or factor will trigger hard-to-predict ripple effects elsewhere in the system, effects that judges cannot anticipate and usually lack authority to control. This is especially true where powerful contrary incentives motivate and constrain the institutions and individuals the court seeks to reform. Impact litigation to mandate low-income housing, for example, has foundered on market interests (not to mention bureaucratic and political ones) that neutralize and distort the courts' rulings and sometimes make shortages even worse.

A conscientious judge, working alone with only a generalist's training, must analyze problems like these in all of their technical detail, diagnose them, and fashion solutions that will be effective--not only here and now but over time, and in contexts quite different from the often atypical ones that the lawyers select for their test cases. The judge receives her information from partisan advocates and their hired experts. Within broad ethical limits, each side works to provide incomplete and one-sided (if not misleading) information, depicting both problems and solutions as far simpler than they really are. Unlike a legislature, a judge has very few tools for shaping the behavior of the numerous actors who must be induced to comply with her solution.

Indeed, a judge wields only two tools, both of them coercive: She can issue an injunction and then punish violators, and she can order wrongdoers to pay money. These tools, although ostensibly strong, are in reality pathetically weak; they affect only a narrow band on the broad spectrum of human motivation--and only the litigants at that. In contrast, legislatures and agencies can coerce everyone in society. More important, they can gain compliance through a variety of more flexible and positive inducements such as subsidies, bargaining, coalition building, information, public education, insurance, bureaucracies, and many more. The Brown decision alone produced little school desegregation until more than a decade later when Congress passed a statute providing federal agencies with a variety of fiscal and administrative sanctions to implement it. (Whether the desegregation that was ultimately achieved actually improved black children's education is a complex question that is hotly debated everywhere, including in black communities.)

Impact litigation seeks a judicial declaration of new legal rights. But although rights are among the most precious of human endowments, they are crude instruments for accomplishing most of what a complex society attempts to do collectively. A right is binary; one either has it or one doesn't. In contrast, sound social policy is a matter of finding the right point along a continuum; it is a matter of degree, of more or less, and of striking a nuanced balance. Once rights are recognized, they are difficult to change, whereas effective policy demands constant flexible adjustment in light of changing conditions. Rights are costly to define, defend, and challenge, yet policy needs to minimize the social costs of getting things done. Rights magnify the role of judges and lawyers but successful policy largely depends on non-legal institutions and competencies.

Under these conditions, one would expect judicial solutions to the kinds of problems that impact litigation takes on to be misconceived, impractical, or even perverse--and they often are. Consider Brown, the paradigm of successful impact litigation. Although desegregation has helped to achieve a more balanced racial mix in some school districts, in many communities, public schools--especially those in the largest cities outside the South--remain at least as racially segregated as they were before Brown, though no longer by force of law.

No wonder some leading civil rights figures like Derrick Bell and former congressman (now minister) Floyd Flake have concluded, sadly, that the great courtroom victory in Brown ill-served most black schoolchildren. Despite the Supreme Court's best efforts, it could neither understand nor control the complex social dynamics driving Americans' residential decisions and schooling choices. In a vicious cycle of frustration all too often unleashed by impact cases, a determined federal judge relied on Brown to order the Missouri legislature to enact a tax to support his decrees to reform the Kansas City school system. Two decades and $2 billion dollars of judicially mandated and supervised reforms later, the city's schools are an utter shambles--without accreditation, only 25 percent white, and draining scarce state funds from other needy districts. When the Supreme Court eventually reversed the unfortunate decision, it was too late; the damage had already been done.

Countless other examples could be cited, each with its unique and complex story and its surprising, often unhappy ending. Deinstitutionalization of the mentally ill, hailed by reformers as a triumph of enlightened judicial policy, has contributed to much homelessness, substance abuse, and menacing disorder in the public spaces in which ordinary citizens must often live. Decades after the landmark Mount Laurel and Yonkers decisions mandated affordable housing for the poor, the affected communities have built little of it. Common Cause's litigation effort to bolster campaign finance reform produced a Supreme Court decision, Buckley v. Valeo, that the group has been fighting ever since because it granted First Amendment protection to the very campaign expenditures Common Cause had hoped to restrict. Litigation to guarantee black representatives in Congress by drawing district lines helped to reduce the number of black members and fortified conservative control of surrounding districts. By many political scientists' accounts, court victories by civil rights groups demanding single-member (rather than at-large) districts in state and local assemblies have in fact reduced black voter influence in those assemblies. Successful litigation on behalf of undocumented aliens helped fuel a political and bureaucratic backlash that has produced a much harsher, unfair enforcement system.

Many experts now view the Warren Court's Gault decision, once celebrated as a victory by juvenile justice reformers, as misguided and itself in need of fundamental reform. Shortly after the litigation campaign against the death penalty succeeded, the states enacted new laws further entrenching it, so that litigators are now reduced to trying to delay executions in the hope that exculpatory DNA evidence will turn up or governors will issue pardons, both rare events. Conservative groups cheered when courts invalidated some forms of affirmative action in public universities, failing to anticipate that this would simply spawn new forms of preference, such as automatically admitting the top tier from all secondary schools in the state, that many conservatives may find even more objectionable because the new preferences will force the admission of more ill-prepared students.

Occasionally Good News

The story of impact litigation, of course, is by no means a uniformly bleak one. The civil rights revolution, a precondition for social justice, would not have occurred when it did without some judicial prodding and protection. School busing has worked better in smaller communities than in large metropolitan areas. The courts forced some prison and community mental health systems to be far more humane and eliminated their worst abuses. By most accounts (though not all), court-driven reapportionment has been a valuable and enduring reform. A structural challenge to the New York City foster care system produced worthwhile changes, and other cases have prompted desirable reforms in some other public services.

Even when impact litigation fails to gain its explicit ends through the courts, moreover, it can ease grid-lock and invigorate social processes that produce desirable changes. Litigation against the tobacco industry, although unsuccessful in legal terms, unearthed documents that have galvanized anti-smoking efforts. Similarly, gun litigation has improved the prospects for sensible regulatory controls and new technological fixes. Death penalty litigation has focused public attention on previously obscure patterns of enforcement that profoundly trouble even capital punishment advocates; as a result, the public debate is taking a new turn. Impact litigators recently forced Swiss banks to restore funds to Holocaust survivors and their descendants. Judicial judgments against individuals who have committed atrocities have not yet produced compensation for the victims but have succeeded in making life much more difficult for the perpetrators, hopefully deterring future violations.

History Lessons

The history of impact litigation suggests some recurrent features. First, these and other examples suggest that impact litigation is likely to be most effective in seizing media and public attention at least momentarily, moving certain issues higher on the policy agenda, turning up evidence of abuses that policymakers have not pursued, and casting a lurid but revealing spotlight on corners of social life that the rest of us might otherwise ignore. Whether such litigation can frame workable, flexible, and politically sustainable remedies to complex problems, however, is far more doubtful.

Second, it is difficult to trace the actual effect of a case beyond the court decision (or settlement) itself. After all, the same forces that propel a case onto a court's docket also operate in other social domains where those forces might have produced the change anyway. (One can always say this, of course, but that does not mean it is necessarily wrong.) For impact litigation enthusiasts, it is enough that the case seemed to achieve its goal or even that one cannot prove the contrary, while skeptics can point to other possible causes and to unanticipated effects. In the case of Brown, for example, political scientist Gerald Rosenberg argues that evolving public attitudes, civil rights protests, economic growth, and other causal factors were already in motion, and that Brown in itself contributed little to the changes that ensued a decade later.

Indeed, impact litigation may undermine its successes by strengthening the hands of its opponents--another recurrent feature. Although Roe v. Wade's survival seems secure for the time being, the decision clearly galvanized a conservative movement that ever since has stymied liberal reforms in many policy areas far beyond abortion. Even Justice Ruth Bader Ginsburg, perhaps the leading women's rights litigator at the time of Roe, now believes that Roe derailed the movement to liberalize abortion. By generating an immediate and powerful political backlash, Roe prompted more restrictive state laws, reversing a strong pre-Roe trend toward more liberal access to abortion. Congress responded to the judicial supervision of prison systems with a law limiting the continuing court supervision of those systems.

Although we cannot clearly delineate all the impacts of a complex litigation, numerous case studies establish that a decision's consequences will almost always differ both from what the plaintiffs originally sought and from what the court envisioned. The social and educational effects of Brown and its progeny are warning enough that impact litigation often produces unexpected and perverse results. This is especially likely in the institutional reform line of impact cases where a court's order is directed at, and must be implemented by, large bureaucracies such as school systems and police departments whose incentives and behaviors are opaque and whose operating routines are shaped by realities on the ground that are hard to grasp, much less change. An endemic feature of such cases is that a legal success here simply creates or aggravates problems over there, much as pushing against a pillow at one point causes it to puff out elsewhere.

A common and well-documented example is prison litigation. When courts order states to spend more to improve prison conditions--often with the connivance of the defendant prison officials who can use the lawsuit as leverage to pry more funds, staff, and authority from the state legislature--states usually allocate less to public schools, hospitals, or police, or must raise taxes that are already regressive.

More generally, impact litigation's fragmented first-come-first-served approach to resource allocation and policy effectively empowers unelected advocates and judges to set the public priorities that the citizenry elected officials to determine, and then to deflect criticism by saying that a disembodied law required this. In our political system, accountability is already elusive precisely because responsibility is so hard to locate. Impact litigation makes it that much easier for everyone--legislators, bureaucrats, judges, lawyers, and litigants--to disclaim it. The buck stops nowhere; impact litigation keeps it moving.

Finally, experience with impact litigation confirms the limited effectiveness of top-down legal rules in regulating complex social behavior. Much top-down law, of course, is unavoidable--criminal and tax law, for example. But reformers could often achieve their goals more effectively by relying more on other techniques such as decentralized rules (as in allocating scarce organs), rights trading (as in environmental protection), auctions (as in allocating valuable broadcast spectrum), moving public funds from providers to citizens (as with vouchers), self-regulation (as in Internet policy), and improved information (as with hospital malpractice).

These alternative forms, however, can only succeed if reformers repose less confidence in the problem-solving capacity of judges and more in that of elected politicians, bureaucrats, and the private sector--a confidence that many reformers think has not yet been earned. So long as impact litigation remains a valuable political resource--one that moves issues onto and up the public agenda, intimidates and even coopts opponents, unearths documents that gain media attention, and does all of this in the still-prestigious name of law--it will be part of the reformer's arsenal. For better and for worse, impact litigation has become an entrenched part of our rights-oriented, individualistic, legal-political culture.

PETER H. SCHUCK is the Simeon E. Baldwin professor at the Yale Law School. His most recent book is The Limits of Law: Essays on Democratic Governance, Westview Press, 2000.