Evaluating Law Reform

Abstract

The proliferation of "law reform" litigation over the last two decades confirms again Tocqueville's famous comment on our national character: There is scarcely a political issue that we neglect to turn into a question for the courts. The term "law reform" by itself suggests legislation, or perhaps even revolution, rather than adjudication. Faced with one regulation that trenches too deeply on religion or another that upholds too rigidly the more lupine practices of established wealth, other peoples might turn to the legislatures or to the streets. We, however, rustle together our lawbooks and our briefs, and head for the courthouse. There is, of course, nothing new in using the courts to change the law. Litigation always "reforms" the law at least minutely; even the most routine personal injury or contract case raises some slight new bump on the corpus juris. But law reform is a matter of degree. The sort of case we have come to identify with this movement is a kind of political drama: the big-issue litigation, wide-ranging, bold and exciting, affecting broad classes of persons and confronting huge government bureaucracies. Moreover, such cases purport to represent the unrepresented—the poor, the oppressed minorities or women, the aged and the children, the scattered nature-lovers—in short, those who through ignorance or despair, skepticism or poverty or inertia, would not be heard at all if not for the enterprise of the public interest lawyer. Though law reform is more than melodrama, the basic elements are there: the downtrodden victim, the heroic defender, the giant villain, well-heeled and heedless to need and virtue; and of course, the courtroom as the stage. The drama is very much a part of law reform, and win or lose, the law reformers have used litigation to focus our attention on some of our most pressing national needs.