By Richard Delgado[*]
Gerald Rosenberg’s new edition of The Hollow Hope[1] repeats his earlier book-length argument against the prospects of social reform through law.[2] Complete with tables, charts, and updated statistics, the new edition replies to his critics and extends his analysis to a number of new areas, including same-sex marriage.[3] The new material reinforces his original conclusion that legal rulings fail to spark social progress not already underway.[4]
Therefore, reformers with limited resources and energy should direct their efforts to avenues such as electoral politics, grassroots organizing, and street activism. Nothing is wrong, according to Rosenberg, with pressing for favorable legal rulings,[5] but one should not hold out unrealistic hopes for their efficacy. Roe v. Wade,[6] for example, did little to increase a woman’s access to abortion services.[7] Brown v. Board of Education[8] produced a negligible increase in the proportion of black schoolchildren attending integrated schools, and rulings upholding gay marriage, according to the new edition, have yielded similarly unimpressive results.[9]
If Rosenberg is right, as I believe he is, regarding the difficulty of achieving social reform through the judicial branch, why is his thesis so counterintuitive? In this Essay, I aim to accomplish two goals: explain why Rosenberg’s analysis seems to fly in the face of common knowledge, and, second, why his argument is nevertheless sound. Doing so will entail explaining a number of mechanisms that inhibit social change.
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