Second thoughts on "law as an instrument of social change."

Abstract

In a diverse and thought-provoking series of papers, the contributors to this issue seem to agree on at least one point: a significant change has occurred in the role of the judicial process in our society. Courts now take a leading part in the design or administration of many state services-including services for the mentally ill and the retarded, for prison populations, for public welfare recipients, and for abused children, adjudicated incompetents, and other dependent persons. One could ask if this is merely some faddish or eccentric episode in our legal culture. To the contributors writing above, clearly, the trend is now well enough established to warrant careful documentation and analysis. This is also an excellent occasion to make a more general assessment of the judicial process and to ask what contributions it can make to the solution of social problems. Of course, change may lead in any direction. In contrast to the celebratory spirit of the papers by David Rothman and Owen Fiss, I will argue that we are witnessing the end of an era rather than the beginning. The current trend toward court management of some state services is not, in my view, the dawn of a new period of judicial ascendancy but rather the awkward collapse of a period in our history when judicial processes were viewed, at least by some, as the dominant force for progressive social That period began with the 1954 Supreme Court school desegregation decision, an event that captured the imagination of liberal thinkers and brought forth the somewhat grandiose vision of law [i.e., the judicial process] as an instrument of social change. Although this phrase may now sound dated, during the early 1960s it was a sober manifestation of the movement for social reform based on progressive values-social meliorism, optimism, and confidence in the efficacy of change introduced from the top of the social structure. As we know, much of this movement came under heavy attack during the