1 I began this limited project in an earlier article; see Hutchinson, Alien Thoughts: A Comment on Constitutional Scholarship, 58 S. Cal. L. Rev. 701 (1985).Google Scholar

2 L. Tribe, American Constitutional Law (1978).Google Scholar

3 L. Tribe, God Save This Honorable Court (1985).Google Scholar

4 L. Trilling, The Liberal Imagination 61 (1950).Google Scholar

5 For my understanding of and contribution to that debate, see Hutchinson, Power and Interpretation, 63 N.Y.U. L. Rev. (forthcoming 1986).Google Scholar

6 See P. Bobbitt, Constitutional Fate (1982).Google Scholar

7 See F. C. S. Northrop, The Complexity of Legal and Ethical Experience 6 (1959).Google Scholar

8 See M. Foucault, The Archaeology of Knowledge (1972), and Hutchinson, supra note 5.Google Scholar

9 A few years ago, Mark Tushnet's review of Tribe's American Constitutional Law caused a minor furore by suggesting that Tribe was making a grandstand play for future elevation to the Supreme Court. Although Tushnet was castigated for making such a tasteless suggestion, any reader of God Save This Honorable Court, supra note 3, could be forgiven for thinking Tushnet was right. See Tushnet, DiaTribe, 78 Mich. L. Rev. 694 (1980).Google Scholar

10 U. Eco, Semiotics and the Philosophy of Language 45 (1984).CrossRefGoogle Scholar

11 Tribe, Seven Deadly Sins of Straining the Constitution Through a Pseudo-scientific Sieve, 36 Hastings L. Rev. 155, 170.Google Scholar

12 Tribe, supra note 3, at xviii.Google Scholar

13 Id. at 111.Google Scholar

14 Id. at 139–40.Google Scholar

15 For a more detailed discussion of these issues, see my essay on the equivalent problem in Canadian jurisprudence: Charter Litigation and Social Change: Legal Battles and Social Wars, in Constitutional Litigation (R. Sharpe ed. forthcoming 1986). Also, 1 make no particular claims of originality for my views. As 1 hope will be obvious from the footnotes, I rely heavily on and am grateful to the law and society literature.Google Scholar

16 Suffice it to say that I fall within that Critical camp of writers that gathers under the banner “Law Is Politics.” See Hutchinson & Monahan, Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199 (1984); Hutchinson, From Cultural Construction to Historical Deconstruction, 94 Yale L.J. 209 (1984); id., The Rise and Ruse of Administrative Law and Scholarship, 48 Mod. L. Rev. 293 (1985). In general we hold that doctrinal patterns can never be objectively justified and amount to nothing more than contingent choice. Legal doctrine is a haphazard cluster of ad hoc and fragile compromises; it comprises a small and unrepresentative sample of conflictual problems and their contingent solutions. The central thrust of Critical critique is that there is no position of theoretical innocence. Any act of interpretation, in both its practical and theoretical performance, has indissocialable political and historical dimensions. The question of what amounts to valid knowledge about legal phenomena is itself a political matter; legal epistemology is ideological warfare fought by other means. See Hutchinson, Part of an Essay on Power and Interpretation (with Suggestions on How to Make Bouillabaisse), 60 N.Y.U. L. Rev. 201 (1986); id., Telling Tales (or Putting the Plural in Pluralism), 23 Osgoode Hall L.J. (forthcoming 1986). At bottom, the categories of “fact” and “truth” cannot be divorced from ideological presupposition to achieve some ahistorical or universal standpoint. As Arthur Leff so characteristically put it, “to ask ‘what really happened’ of a reported case is something like trying to find the mood of a centerf ielder by reading a box score.” Leff, Law and, 87 Yale L.J. 989, 1008 n.46 (1978). In any discussion of data about social behavior and activity, we must remind ourselves constantly about the intimate and inseparable relationship between the interpreter and the data to be interpreted. The scholarly community as such must be understood as a collective order of normative beliefs and cultural values. Any attempt to chart the impact of judicial decisions on social behavior is destined to be as much art as science. The social data do not simply stand out there waiting to be collected and collated. The identification and selection of data must be carried out within a conscious theoretical framework; a way of seeing is always a way of not seeing. Reflection must precede research. Data are constituted ideologically when they are empirically collected and should be similarly reconstituted when they are conceptually deployed.Google Scholar

17 Although there are no official statistics in this area, it is estimated that fewer than 5% of possible disputes involve any contact with the formal system of litigation. Of these, only about 2–3 % ever proceed far enough to require a court verdict and fewer than 5% of these are appealed. The estimates here are based on data drawn from a wide range of reputable but unofficial sources. See Hutchinson, The Formal and Informal Schemes of the Civil Justice System: A Legal Symbiosis Explored, 19 Osgoode Hall L.J. 473,477 (1981).Google Scholar

18 The analysis that follows draws heavily upon the excellent work of Marc Galanter. See Galanter, Justice in Many Rooms, 19 J. Legal Pluralism 1 (1981) (hereinafter cited as Justice); id., Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4 (1983) (hereinafter referred to as Landscape). In this work, Galanter draws upon a wide range of sources.Google Scholar

19 Galanter, Justice, supra note 18, at 34.Google Scholar

20 For instance, despite extensive media coverage, Americans know little about the work of the U.S. Supreme Court. Less than half the population can name a single decision or select as many as three correct topics from a list of areas in which the Court may have made a decision. See Murphy & Tanenhaus, Public Opinion and the United States Supreme Court, 2 Law & Soc'y Rev. 357 (1968); Sarat, Studying American Legal Culture: An Assessment of Survey Evidence, 11 Law & Soc'y Rev. 47 (1977). And there is even less public awareness of lower court activity. Lehne, & Reynolds, , The Impact of Judicial Activism on Public Opinion, 22 Am. J. Pol. Sci. 896 (1978).Google Scholar

21 Cultural heritage may operate to encourage the informal resolution of disputes and discourage resort to a public and official forum. See J. Auerbach, Justice Without Law (1982). Japan is often cited as a legal system in which this cultural inhibition operates. However, it has recently been revealed that their relatively low litigiousness has more to do with strictly enforced institutional barriers, such as the small number of courts and lawyers, than with any indigenous disinclination to sue. See Haley, , The Myth of the Reluctant Litigant, 4 J. Japanese Stud. 359 (1978). Some preliminary studies suggest that urbanites show a greater willingness to litigate than do their rural counterparts. In part, this stems from the fact that “a crowded, competitive urban society creates more conflicts than a diffuse, rural, largely self-sufficient society.” Hufstedler, The Future of Civil Litigation, 1980 Utah L. Rev. 753, 755.Google Scholar

22 E.g., creationists recently have tried to change the teaching of evolutionary studies in schools. Although their litigation attempts have been unsuccessful, the publicity the movement obtained may have more than compensated for the judicial setback.Google Scholar

23 The growing literature on this process is collected in Galanter, Justice, supra note 18, at 11–36.Google Scholar

24 E.g., privacy is seen very differently now than it was a few generations ago; in the recent years the concept of invasion of privacy has taken on new meaning.Google Scholar

25 Felstiner, Abel, & Saral, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …. 15 Law & Soc'y Rev. 631 (1980); Miller & Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 Law & Soc'y Rev. 525 (1981).Google Scholar

26 See B. Curran, The Legal Needs of the Public: The Final Report of a National Survey 126 (1976); M. Silberman, The Civil Justice Process: A Sequential Model of the Mobilization of Law (1985).Google Scholar

27 See Miller & Sarat, supra note 25, at 537.Google Scholar

28 S. Krislov, The Supreme Court and Political Freedom 116 (1968).Google Scholar

29 See Griffiths, , Is Law Important? 54 N.Y.U. L. Rev. 339, 351–56 (1979).Google Scholar

30 The extensive literature on the enforcement of Miranda is usefully and succinctly summarized in Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 Mich. L. Rev. 1, 9–10 (1984).Google Scholar

31 See Note, The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change, 84 Yale L.J. 1338 (1975). After a thorough survey of changes in conditions in mental institutions in Alabama a decade later, Leaf and Holt concluded: “The history of the Wyalt case also demonstrates that structural changes within psychiatric and retardation facilities are not sufficient to generate a humane and effective system of care. The Alabama experience suggest while vast improvements can be made in the manner in which society deals with the mentally ill, humane treatment can only exist when there is concern about the needs of an individual, not a concern about procedures.” Leaf & Holt, How Wyatt Affected Patients in Wyatt v. Stickney: Retrospect and Prospect 49, 50 (1981).Google Scholar

32 Ives v. South Buffalo Ry., 201 N.Y. 271 (1911).Google Scholar

33 New York Cent. R.R. v. White, 243 U.S. 188 (1917). See Epstein, , The Social Consequences of the Common Law, 89 Harv. L. Rev. 1717, 1738 (1982).Google Scholar

34 See Griffiths, supra note 29, at 357.Google Scholar

35 410 U.S. 113 (1973).Google Scholar

36 See Note, Abortion: The Five-Year Revolution and Its Impact, 3 Ecology L.Q. 311 (1973); Movers, Abortion laws: A Study in Social Change, 7 San Diego I. Rev. 237 (1970).Google Scholar

37 See Allan Guttmacher Institute, Planned Parenthood Federation of America, Abortion (1974-1975): Needs and Services in the United States, app. Ill, at 122–23 (1976).Google Scholar

38 All this, of course, has not been without problems. The judicial decision has provided a focus for anti-abortion groups and may have galvanized these conservative forces. For a general account of Roe's effect on antiabortion groups, see Williams, The Power of Fetal Politics, Saturday Rev., June 9, 1979, at 12. Even a committed instrumentalist like Choper admits that the Supreme Court might have been riding a tide of established social change. He contents himself with the conclusion that, at least, the Roe decision “hastened the drive toward abortion legalization.” See Choper, supra note 30, at 189. Also, it is interesting to note that within three years o(Roe, 32 states had passed legislation that sought to restrict or regulate access to abortions. See Witherspoon, The New Pro-Life Legislation: Patterns and Recommendations, 7 St. Mary's L.J. 637, 646 (1976).Google Scholar

39 Brown v. Board of Edue., 347 U.S. 483 (1954).Google Scholar

40 See supra note 5.Google Scholar

41 For a critical summary of this literature, see Bachmann, Lawyers, Law and Social Change, 13 N.Y.U. Rev. L. & Soc'y 1 (1984); Auerbach, The Relation of Legal Systems to Social Change, 1980 Wis. I. Rev. 1227.Google Scholar

42 Recent cases before the American courts include Brown v. Board of Educ, 84 F.R.D. 383 (1979) (seeking intervention in an original Topeka desegregation ease on behalf of a class represented by Linda Brown's daughter). Clarke v. Board of Educ., 705 F.2d 265 (1983) (continuation of Little Rock desegregation case). The issue of whether Brown worked a more indirect but significant effect by acting as a catalyst is postponed until later. See infra at 91–92.Google Scholar

43 See J. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change 105–18 (1978); R. Kruger, Simple Justice (1976).Google Scholar

44 For an excellent discussion of this problem, see Colloquium: Employment Discrimination in the 1980s, 13 N.Y.U. Rev. L. & Soc'y 230(1985). Some hard facts make for distressing reading; the poorest fifth of the population receives a smaller percentage of total after-tax income than almost anywhere else in the industrial world; the poverty rate for black Americans is three times that of the rate for white Americans; earnings for full-time working women are less than 60% of men's and this percentage has actually decreased over the last 30 years; nonwhite American men earn about 80% of the earnings of equivalent white Americans; the income gap between white and black American families has widened since 1977. Further, the unemployment rate among black Americans, which is more than double that for white Americans, has itself doubled in the last 30 years. See J. Cohen & J. Rogers, On Democracy 30–32 (1983).Google Scholar

45 Sec Auerbach, supra note 41, at 1308.Google Scholar

46 Speaking of the Brown decision, Alexander Bickel eloquently summarized the dominant view of the courts' role: Like poetry, then, as a verse by Auden tells us, the great [Brown] decision … made nothing happen. But only like poetry. Only as it may sometimes seem that nothing but power, purposefully applied, can affect reality, only thus could it be said that this first decision had no consequences…. In fact, announcement of the principle was in itself an action of great moment, considering the source from which it came…. Very edifying, a demonstration of the spell the Court is capable of casting, a manifestation of its prestige, of the force of its mystique, and of the dominion of ideas. But the Court does not sit to make precatory pronouncements. It is not a synod of bishops, nor a collective poet laureate. It does not sit …“to compose for the anthologies.”… The Court is an organ of government. It is a court of law, which wields the power of government in disposing of concrete disputes. Therefore, although pronouncement of the [Brown] principle … was in itself not an ineffectual act, it did not alone discharge the function of the Court. A. Bickel, The I east Dangerous Branch 245 (1962).Google Scholar

47 I-:. P. Thompson, Whigs and Hunters: The Origin of the Black Act 262 (1975). Also see Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575, 613–15 (1984).Google Scholar

48 See Weber, M., The Theory of Social and Economic Organization 324–63 (A. Henderson & T. Parsons trans. 1947); Balbus, , Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law, 11 Law & Soc'y Rev. 571 (1977). There are many other theories of legitimation, but the Weberian notion is most dominant in legal scholarship. Furthermore, this is not the place to discuss the merits of competing theories of legitimation; sec, e.g., J. Habermas, Legitimation Crisis (1975). Some of the ideas expressed in the text provide a strong challenge to my own views on the role of adjudication; see supra note 16. Like Alan Hyde, 1 believe that the law is ideological in intent, but I remain agnostic about its effectiveness; see Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. Rev. 379, 385.Google Scholar

49 See supra at 83–84.Google Scholar

50 Adamany, & Grossman, , Support for the Supreme Court as a National Policymaker, 5 Law & Pol'y Q. 405 (1983).Google Scholar

51 For an attempt to use such data to undercut various theoretical claims about the democratic benefits of judicial review, see Hutchinson & Monahan, Democracy and the Rule of the Law, in The Rule of Law: Ideal or Ideology (A. Hutchinson & P. Monahan eds. forthcoming 1986).Google Scholar

52 The relevant evidence is collected and presented in Hyde, supra note 48, at 412–17.Google Scholar

53 See H. L. A. Hart, The Concept of Law (1961); Griffiths, supra note 29, at 362.Google Scholar

54 See J. Casper, The Politics of Civil Liberties 169 (1972).Google Scholar

55 See L. Lomax, The Negro Revolt 73–74 (1962); E. Cleaver, Soul on Ice 3 (1968).Google Scholar

56 Quoted in Jeffries & McGahey, Equity Growth and Socioeconomic Change: Anti-discrimination Policy in an Era of Economic Transformation, 13 N.Y.U. Rev. L. & Soc'y 233, 236 (1985).Google Scholar

57 See Giles, & Gatlin, , Mass-Level Compliance with Public Policy: The Case of School Desegregation, 42 J. Pol. 722 (1980).Google Scholar

58 See National Opinion Research Center (Chicago) os Quoted in Harper's, Aug. 1985, at 11.Google Scholar

59 C. Dickens, Bleak House 4–5 (1853).Google Scholar

60 Gordon, , Critical Legal Histories, 36 Stan. L. Rev. 57, 89 (1984).Google Scholar

61 Handler, supra note 43, at 232–33.Google Scholar

62 M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1 (C. Gordon ed. 1980).Google Scholar

63 See Griffiths, supra note 29, at 363–69.Google Scholar

64 See Cover, Nomas and Narrative, 97 Harv. L. Rev, 4 (1984); C. Geertz, Local Knowledge: Further Essays in Interpretative Anthropology (1984).Google Scholar

65 Sec Gordon, supra note 60, at 103–5.Google Scholar

66 Tribe, supra note 2, at 576.Google Scholar

67 Tushnet, , An Essay on Rights, 62 Tex. L. Rev. 1363, 1387 (1984).Google Scholar

68 See Carey v. Brown, 447 U.S. 455, 467 (1980).Google Scholar

69 Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).Google Scholar

70 See Buckley v. Valeo, 424 U.S. 1 (1976); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).Google Scholar

71 See Safeco, 447 U.S. 616 (1980).Google Scholar

72 Kairys, Freedom of Speech, in The Politics of Law 136 (D. Kairys ed. 1982).Google Scholar

73 See Minnesota St. Bd. for Community Colleges v. Knight, 104 S. Ct. 1058 (1984); I.L.A., 456 U.S. 212 (1982). For a general discussion of this maneuver, see Pope, The Three-Systems Ladder of First Amendment Values: Two Rungs and a Black Hole, 11 Hastings Const. L.Q. 189 (1984).Google Scholar

74 See United States Postal Serv. v. Council of Greenburgh Civic Ass'n, 453 U.S. 134 (1981); Widmar v. Vincent, 454 U.S. 263 (1981); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1982); Cornelius v. NAACP Legal Defense & Educ. Fund, 105 S. Ct. 3439 (1985).Google Scholar

75 Cornelius, 105 S. Ct. at 3453–54.Google Scholar

76 Chomsky, The Manufacture of Consent, 17 Our Generation 83, 90–91 (1985).Google Scholar

77 For a fuller account and explanation of the workings and effects of this condition, see Hutchinson, supra note 16.Google Scholar

78 Buckley v. Valeo, 424 U.S. 1 (1976) (invalidation of legislation limiting election campaign expenditure).Google Scholar

79 Bellotti, 435 U.S. 765 (1978) (striking down restrictions on political spending by corporations).Google Scholar

80 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (freedom of the press includes right not to be obliged to publish anything).Google Scholar

81 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding state regulation of broadcasting frequencies).Google Scholar

82 New York Times v. Sullivan, 376 U.S. 254 (1964) (constitutional privilege for criticism, even if false, of official conduct).Google Scholar

83 P. Green, Retrieving Democracy: In Search of Civic Equality 220 (1985).Google Scholar

84 See Chomsky, supra note 76, at 100, 106.Google Scholar

85 See M. Walzer, Spheres of Justice 300–303 (1983).Google Scholar

86 The length and variety of this list of “excludables” is staggering. See Schapiro, The Excludable, 11 Mother Jones 29 (Jan. 1986). The case of Farley Mowat was a recent reminder of this pitiful policy. See F. Mowat, My Discovery of America (1985).Google Scholar

87 Schapiro, supra note 86, at 51.Google Scholar

88 The following comments draw heavily on an excellent essay by my colleague Harry Glasbeek. See Glasbeek, Entrenchment of Freedom of Speech for the Press—Fettering of Freedom of Speech of the People, in The Courts, The Charter and the Media (P. Anisman ed. 1986).Google Scholar

89 See D. Halberstam, The Powers That Be (1979).Google Scholar

90 See Helle, , The Impact of Estate Taxes on Independent Daily News: An Illinois Case Study, 33 DePaul L. Rev. 323 (1984).Google Scholar

91 The complicity by the media in suppressing material opposing American support of military and totalitarian regimes has been heavily documented. See 1 & 2 N. Chomsky & E. Herman, The Political Economy of Human Rights (1979). Without direct encouragement, the media self-censor the news “to serve the important interests that dominate the state and select and suppress facts so as to convey the impression that national policy is well-intentioned or justified.”Id. at 23.Google Scholar

92 The Pundits, on Ideas, CBC-Radio program transcript, at 8–9, May 23, 1984, as quoted in Glasbeek, supra note 88.Google Scholar

93 Almost the same situation prevails in England and Canada where, until recently (at least in Canada), there has been no constitutionally entrenched right to free speech. This ties in with my earlier comments on the lack of the instrumental success of the courts. See supra at 87–92.Google Scholar

94 Relative to its socioeconomic status, the United States stands an abysmal 49th of 158 United Nations member states in general literacy levels. See J. Kozol, Illiterate America (1984).Google Scholar

95 His equivocation is perfectly illustrated by his ambivalent response to Skokie and its judicial resolution (at 219–20).Google Scholar

96 Tribe, supra note 3, at 11.Google Scholar

97 See supra at 87–92. If I am right and Tribe is wrong about the instrumental effect of adjudication, this criticism loses much of its force. If Tribe is right, he opens himself up completely to this criticism.Google Scholar

98 See Hutchinson & Monahan, supra note 51.Google Scholar

99 J. B. Thayer, John Marshall 106–7 (1974).Google Scholar

100 Supra note 92.Google Scholar

101 Tribe, supra note 11, at 159.Google Scholar

102 See Singer, , Radical Moderation (Review Symposium), 1985 A.B.F. Res. J. 329, 330.Google Scholar