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Document 80 of 121.


Copyright (c) 1993 The Curators of The University of Missouri
University of Missouri at Kansas City Law Review

Fall, 1993

62 UMKC L. Rev. 171

LENGTH: 7643 words

LAW AND SOCIAL CHANGE

Martha Minow*


 
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* Professor of Law, Harvard University. Presented at the Law and Social Change Lectures at the University of Missouri-Kansas City, School of Law as a University of Kansas City Trustees visiting professor on April 14, 15, and 16, 1993.
 
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SUMMARY:
  ... I also think there tend to be two kinds of people when it comes to the topic of "law and social change"-those who believe that law is an important instrument of social change and those who think not. ... Quite in contrast are those who argue that law does not or should not produce social change. ... For example, my former colleague, Derrick Bell, who worked for the NAACP on school desegregation, has more recently written searing books and articles maintaining that law reform for racial justice has failed. ... In this view, customs and other day-to-day practices that continue to exclude or degrade non-whites fairly belong in an assessment of social change sought by law reform. ... Consider the results of a recent survey of employment discrimination cases reported by the federal courts in 1987. ... This distinction looms large in Neier's own evaluation of where law reform efforts have succeeded and where they have failed. ... This contrasts, in Neier's view, with the racial justice crusade, which did concern morality. ... But deinstitutionalization of persons with mental illness or mental retardation is a reform by one generation that could well be the scandal of the next. ... "Social" should be read to include the contexts of politics and culture in which people forge consciousness of their society and their aspirations for it; "social" also includes the arenas for debates over what morality and economic justice should entail. ...  

TEXT:
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I cannot help but note that today is tax day, and as many of us scramble to finish our taxes, I am reminded of the saying, "there are two kinds of people in the world: those who finish what they start, and so forth." Actually, what I really believe is, "there are two kinds of people in the world: the kind who think there are two kinds of people and the kind who don't."

I also think there tend to be two kinds of people when it comes to the topic of "law and social change"-those who believe that law is an important instrument of social change and those who think not. Carolyn Heilburn once commented: "Thinking about profound social change, conservatives always expect disaster, while revolutionaries confidently anticipate utopia. Both are wrong." n1
 
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n1. The Beacon Book of Quotations by Women 299 (Rosalie Maggio ed., 1992) (quoting Carolyn Heilburn, Toward a Recognition of Androgyny (1973)).
 
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When it comes to the relations between law and social change I am not ready to announce who is wrong. There we find variations on the two basic positions. Some people think the law basically lags behind changes in society and gradually catches up. An example would be the change from divorce laws requiring demonstrations that one spouse was to blame for the break-up of the marriage to what is commonly called "no-fault divorce," available if either party just wants out. Given how many thousands of people manufactured evidence under the blame system, the adoption of no-fault divorce could be viewed basically as an acknowledgment of actual practice. n2
 
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n2. See Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985).
 
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Some believe in contrast that law can occasionally prompt changes in society but only occasionally, and often unintentionally. For people with this view, Brown v. Board of Education n3 stands as a remarkable and unusual moment of judicial leadership in advance of public opinions and practice. n4 Others emphasize the unintended consequences of law reform efforts. For them, no-fault divorce is a striking example of a reform that unintentionally eliminated protection for women and has become associated with dramatic drops in economic well-being for women and children  [*172]  following divorce. n5 Another example is Roe v. Wade, n6 a success for the pro-choice movement which inspired and mobilized the counter pro-life movement.
 
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n3. 347 U.S. 483 (1954).

n4. A refined version of this view appears in Aryeh Neier, Only Judgment: the Limits of Litigation in Social Change (1982), which argues that courts are sometimes appropriate and sometimes less well-suited to pursue social change. His analysis contrasts the competence of courts in eight different areas of public policy.

n5. Weitzman, supra note 2.

n6. 410 U.S. 179 (1973).
 
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Some people believe that law's biggest impact on society comes in the form of symbols that affect consciousness, human hopes and perhaps ultimately, conduct. n7 From this vantage point, the adoption of no-fault divorce is most important for its gradual effect on the meaning of marriage; more people may enter marriages believing they will be temporary, and American culture more generally replaces moral language with images of inevitability to describe the demise of marriages, be these their own or those of others. The legal language of "irretrievable break-down," used in some no-fault divorce statutes, seems to treat the broken marriage like a lemon of an automobile; gone is the language of personal failure or responsibility for the end of the relationship. n8 The role of law, for some, is most significantly a cultural medium that influences people's modes of expression and everyday hopes and fears.
 
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n7. See Mary Ann Glendon, State, Law and Family: Family Law in Transition in the United States and Western Europe (1977); see also Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (1974); Clifford Geertz, Local Knowledge: Fact and Law In Comparative Perspective in Local Knowledge 218 (1983) (discussing law as a system of symbols for perception, understanding, judgment and manipulation of the world).

n8. Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 Vand. L. Rev. 1665 (1990) (When we speak of domestic violence, we imply a personal, private affair, something not to be intruded upon; conversely, spousal battery-that's a real crime, something deserving of prosecution.)
 
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Quite in contrast are those who argue that law does not or should not produce social change. Some raise empirical doubts. For example, some researchers have challenged the claim that Brown v. Board of Education produced significant legal or political gains in civil rights or school reform. n9 Many of these critiques come from people aligned with political conservatism. But not all of the critics fit that description. n10 For example, my former colleague, Derrick Bell, who worked for the NAACP on school desegregation, has more recently written searing books and articles maintaining that law reform for racial justice has failed. He argues that racism and black poverty persist, and that civil rights professionals are too invested in their strategies to admit they have failed. n11 Bell further compares civil rights reform efforts to Prohibition, the turn-of-the century effort to ban liquor sales, and concludes that both failed because too many people in both instances wanted to evade the law. Others raise a  [*173]  different kind of doubt about the relationship between law and social change; they especially question the legitimacy of judicial action to produce changes in society. n12
 
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n9. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (1991).

n10. See Karl E. Klare, Judicial Deradicalization of the Wagner Act & the Origins of the Modern Legal Consciousness, 1937-1941, 62 Minn. L. Rev. 265 (1978); Alan Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978). Klare and Freeman both take the position that the episodic victories in the civil rights movement ultimately limited its transformative impact.

n11. See Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992); Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1987).

n12. See, e.g., Martin H. Redish, The Federal Courts in The Political Order: Judicial Jurisdiction and American Political Theory 10 (1991) ("Short of a finding of constitutional invalidity ... it is democratically illegitimate for an unrepresentative judiciary to overrule, circumvent, or ignore policy choices made by the majoritarian branches.")
 
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I do not plan to adjudicate among these or other competing conceptions of law and social change. Instead, I would like to urge attention to the key terms underlying these conceptions. Although it may seem an academic enterprise, looking at words can influence social change. Author Carmen Martinez Ten said recently that "language is neither innocent nor neutral. Linguistic habits condition our view of the world and hinder social change." n13 Meaningful evaluation of law and social change requires careful understandings of the possible range of meanings for "law," "social" and "change."
 
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n13. The Beacon Book of Quotations By Women, supra note 1, at 181 (quoting Carmen Martinez Ten, In Espana (1991)).
 
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Let me explain each of these points.

I. MEANINGS OF "LAW"

Many studies of law and social change treat the courts, and especially the United States Supreme Court, as the only legal game in town. One recent book, for example, dubs faith in law to achieve social change "The Hollow Hope" and proceeds to focus exclusively on the United States Supreme Court in the areas of racial justice and women's rights. n14 This approach is short-sighted and erroneous. The Supreme Court, however illustrious and powerful it may seem, is simply one of many legal institutions in this country. It considers fewer than 200 cases a year, recently fewer than 120, and most of these concern technical legal matters with little broad social significance. n15 The occasional case before the Court that involves social issues of general interest may be as much a catalyst for legislative debate or state response as it is for direct social consequences.
 
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n14. Rosenberg, supra note 9.

n15. See generally David M. O'Brien, Storm Center: The Supreme Court in American Politics (3d ed. 1993).
 
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Even famous cases like Brown v. Board of Education and Roe v. Wade only partially reflect on the Supreme Court's capacity to influence social change for they both grew out of mass movements with legislative, regulatory and protest dimensions. Many contemporary reformers file test case lawsuits with the goal of gaining a place on the evening news and influencing legislative agendas, regardless of whether or not they prevail in court. n16 Evaluating such efforts, thus, requires a considerably broader view of law than a narrow focus on Supreme Court results or even the relation between judicial action and real people's conduct.
 
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n16. See Nan Aron, Liberty and Justice for All: Public Interest Law in the 1980's and Beyond (1989).
 
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So a focus on all federal courts, state courts and both federal and state legislation, would better frame evaluations of social change efforts. Derrick Bell's criticisms of civil rights initiatives to some extent admit this broader definition of "law." He includes federal civil rights statutes in his critique, and cites as evidence the continuing presence of racism and the enduring patterns of poverty among so many African-Americans. In essence, he treats the "law" that matters as the informal social and economic practices of whites and dominant institutions such as corporations and universities. I think there is an important point here; the law on the books ultimately takes its meaning from the law in practice. In this view, customs and other day-to-day practices that continue to exclude or degrade non-whites fairly belong in an assessment of social change sought by law reform.

Nonetheless, I think that Bell underestimates the effects of law reform to date. Relevant here, I submit, is the degree of consciousness of their rights manifested by African-Americans-as well as the degree of successful legal claims. Consider the results of a recent survey of employment discrimination cases reported by the federal courts in 1987. n17 The survey found that seventy-seven cases dealt exclusively with racial discrimination, and sixty-five of those cases were filed by African-American plaintiffs; five cases were filed by members of other minorities and seven by whites. n18 This pattern does suggest wider perceptions of discrimination against African-Americans than any other groups-but it also suggests a sense that the legal system is a meaningful way to challenge that discrimination.
 
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n17. Roy Brooks, Shelby Steele and the Subtext of Our Developing Civil Rights Laws, 9 Law & Ineq. J. 359 (1991) (reporting results of his survey based on Westlaw research).

n18. Id. at 363-64.
 
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After judicial consideration, African-American plaintiffs won fourteen of the cases they brought; white plaintiffs won none of their cases. n19 This second finding could support competing conclusions. Perhaps it suggests that the judiciary is inhospitable to African-Americans, since the selection of reported cases are presumably non-frivolous ones. Perhaps the finding indicates that actual employment discrimination remains largely a burden for African-Americans. Yet neither interpretation alters the evidence that at least those plaintiffs believed that they had legal rights that had been violated and that they had an entitlement to plead their cases in court. Moreover, employers and their lawyers around the country all read both filed and decided cases closely and monitor employer conduct accordingly.
 
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n19. Id. at 365.
 
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"Law" should be read to include each of these elements: the norms about which individuals come to have consciousness, whether that consciousness derives from judicial decisions, statutes or more general sources of rights to object to mistreatment. n20 "Law" should also include actual use of the courts in this vein, whether or not the result favors the complainant and prospective changes in conduct by employers who watch the pattern of filed and litigated cases.
 
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n20. See Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988).
 
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We should also understand one further possible dimension of "law." That is the concerted voluntary efforts by and on behalf of disenfranchised people to create services and programs denied to them by the formal legal system. I am thinking particularly of the social services for children, widows and other dependents sponsored by women's organizations during the 19th and early 20th centuries, before women obtained the right to vote. Even during the period that law assigned to husbands control over married women's property, women's private volunteer organizations pragmatically appointed single women to positions of secretary and treasurer. n21 Through those organizations, women devised schools, libraries and orphanages. n22 The Woman's Parliament, convened in 1869 by a New York women's club, debated the development of a parallel government to implement women's concerns for good schools, clean government and public virtue. n23
 
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n21. Barbara J. Berg, The Remembered Gate: Origins of American Feminism, The Woman and the City, 1800-1860, 161 (1978).

n22. See Martha Minow, Forming Underneath Everything That Grows: Toward a History of Family Law, 4 Wis. L. Rev. 819, 878-87 (1985).

n23. Paula Baker, The Domestication of Politics: Women and American Political Society, 1780-1920, 89 Am. Hist. Rev. 620, 633-34 (1984).
 
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Women's organizations also advocated the adoption of new legislation including child labor laws, creation of juvenile courts, sanitation regulations and women's suffrage. n24 Having an effective network to disseminate and advocate ideas for new forms of governance, women's voluntary organizations not only produced specific law reforms but also altered the norms and practices of the official government. n25 In a recent book examining social support policies in the United States, Theda Skocpol demonstrates that women's organizations produced maternalist welfare policies to assist American mothers and children where the official governmental channels proved otherwise resistant to the social legislative ideas adopted in Europe during the same period. n26 The women in these organizations in essence produced an alternative legal regime. This alternative regime, as well as the specific reforms it pushed through, changed society and also altered the status of the women who participated.
 
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n24. Minow, supra note 22, at 881.

n25. Minow, supra note 22, at 885-90.

n26. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States 321-523 (1992).
 
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Could analogous activities alter or expand the meaning of law today? A contemporary example might be privately financed shelters for battered women, created by formerly battered women, supporting law reforms to deter and control domestic violence. Several observers have recently warned against public funding of shelters which can co-opt the movement and undermine the social change needed to stop the violence itself. n27 Nonetheless, public funding of shelters marks a level of political success, turning a private initiative into one bucked by the state. Another contemporary example is private, volunteer community policing efforts. Consider ostensibly private volunteer efforts such as the Guardian Angels who in some  [*176]  New York City blocks are more present and effective than police officers. I would be interested to hear of other candidates for this expanded notion of law.
 
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n27. See, e.g., Merle Weiner, From Dollars to Sense: A Critique of Government Funding for the Battered Women's Shelter Movement, 9 Law & Ineq. J. 185 (1991).
 
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Law in this sense is not merely the formal official rules adopted by legislatures, courts and executives nor solely the procedures of those institutions. Law is also the practices of governance and resistance people develop behind and beyond the public institutions. Those practices may alter formal, public law; they also alter the meaning and shape of law and provide a potentially rich context for social change.

I am reminded here of Gloria Steinem's comment, "If the shoe doesn't fit, must we change the foot?" n28 It is an illuminating comment about social practices and public institutions, and a good reminder that disempowered people may march with their feet and remake the legal and political order that way.
 
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n28. The Beacon Book of Quotations by Women, supra note 1, at 300 (quoting Gloria Steinem, Outrageous Acts and Everyday Rebellions (1983)).
 
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II. MEANINGS OF "SOCIAL"

Let's turn to the meanings of "social" when we talk about law and social change. Typically, the term is unexamined. For example, in a book subtitled The Limits of Litigation in Social Change, Aryeh Neier never defines the term "social" but instead proceeds to consider lawsuits in ten areas: racial equality; voting rights; sexual equality; abortion; poverty; foreign policy; national security; institutions such as prisons, mental hospitals, and schools for persons with mental retardation; capital punishment; and environmental protection. n29 These topics mirror the agendas of such cause-oriented groups as the American Civil Liberties Union, the Center for Constitutional Rights, the Mental Health Law Project and the Southern Poverty Law Center.
 
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n29. Neier, supra note 4.
 
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The topics also satisfy the broad dictionary definition that identifies social as "of or relating to human society." n30 That definition would seem to apply to any human experience. Yet my suspicion is that the "social" part of "law and social change" usually is conceived too narrowly. For example, conceptions of the "social" may treat morality as a given, n31 when instead the "social" could be the realm for debates over what counts as moral.
 
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n30. Webster's Third New International Dictionary 2161 (1967).

n31. Richard A. Posner, Sex and Reason (1992). Also see virtually anything else he has written since The Economics of the Baby Shortage, 7 J. Legal Stud. 323 (1978) (Co-Author Elisabeth M. Landes).
 
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Compare the more narrow view that undergirds Neier's own analysis. He draws a distinction between morality and policy. This distinction looms large in Neier's own evaluation of where law reform efforts have succeeded and where they have failed. For example, he concludes that litigation worked to win specific advances for recipients of public welfare benefits, such as the elimination of residence requirements and the establishment of more fair procedures for terminating benefits. n32 Yet Neier pegs the  [*177]  political backlash to the moment when law reformers asserted that welfare is a right, not merely a gift or privilege. n33 At that moment, he argues, the reformers hit the point at which most Americans do not find morality in the cause. This contrasts, in Neier's view, with the racial justice crusade, which did concern morality. n34
 
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n32. See Neier, supra note 4.

n33. Neier, supra note 4, at 139.

n34. Neier, supra note 4, at 140.
 
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Perhaps his description correctly tracks past experiences. But treating the distinction between morality and policy as fixed and given makes the term "social" when used in the phrase, "law and social change," seem never to engage the personal and political contexts in which people debate morality. n35
 
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n35. Perhaps policy is at issue when governmental practice is the target and morality is at stake when governmental practice is challenged only as the means for in other realms, such as private employment, families or corporate conduct. This rationale would place voting rights, capital punishment, foreign policy and national security on the side of governmental practices and racism, sexism and the attitudes toward poor or disabled persons on the morality side. But this approach takes as a given the very attitudes that some would seek to change. Moreover, Neier seems here to separate instances of government action from instances of government inaction. Scholars have devoted much ink to challenging that distinction, and finding government action in inaction or vice versa.
 
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I suggest instead that "social" includes attitudes held by private individuals. For example, crucial to the feminist movement is the notion that "the personal is political." Closely related are the methods of consciousness raising and personal transformation. These ideas are seldom discussed in conjunction with law and social change. And yet debates over reproductive freedom, sexual harassment, the right to die and interracial adoption crucially involve renovations in personal attitudes and intimate behavior.

The same can be said about recycling and environmental consciousness. The changes behind environmental reforms, and the changes produced by environmental reforms, importantly involve how people view such matters as paper napkins. n36 The executive director of the Sierra Club, for example, reported that the organization, committed to environmental quality and natural beauty, found a whole new orientation when people attending one meeting said, "Oh, we're not using paper napkins anymore" because of "the new ecology movement." n37
 
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n36. Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 119 (1993).

n37. Id. at 118-19 (quoting Michael McCloskey).
 
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Indeed, many thinkers planning the future of the environmental movement focus on changes in individual consciousness as the crucial goal precisely because the government will never have sufficient power to protect the environment. Ralph Nader, for example, has argued that the government's regulatory apparatus has the authority to halt pollution and environmental degradation, but not the power to do so. Real power would require store-front environmental groups located in every community. In Nader's words, "That would be a shift of power, focusing the concerns of people into cutting-edge advocacy-political, economic, legal-all kinds  [*178]  of advocacy, which can then trigger authority into doing its job." n38
 
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n38. Id. at 244 (quoting Ralph Nader).
 
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This bold vision echoes populist democratic visions that inspire many divergent political movements. But it also acknowledges as significant the shift in attitudes held by ordinary people.

What engages people, together and alone, what really alters emotions and attitudes-this should be part of what we mean by the "social." Nadine Gordimer, the South African novelist, offered this powerful insight:

It is not the conscious changes made in their lives by men and women-a new job, a new town, a divorce-which really shape them, like the chapter headings in a biography, but a long, slow mutation of emotion, hidden, all-penetrative; something by which they may be so taken up that the practical outward changes of their lives in the world, noted with surprise, scandal or envy by others, pass almost unnoticed by themselves. n39
 
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n39. The Beacon Book of Quotations By Women, supra note 1, at 43 (quoting Nadine Gordimer, The Lying Days (1953)).
 
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I think that Gordimer would agree that political change is intertwined with personal change. Many others, however, still neglect their connection. A useful meaning of the "social" could refer to the context for bridging these two realms. Addressing the settings where private attitudes are forged and reinforced becomes critical in this understanding of the social realm.

The notion of the "social" has been too limited in another way. It has tended to exclude the economy. Studies show that African-Americans and whites who have the same years of schooling still do not earn the same when employed; findings range from a wage gap of ten to thirty percent for comparably educated people across the two races. n40 To many, the central issue in racial disparity is access to resources, and this remains untouched by existing civil rights law reforms. n41 Useful here, I think, is Roy Brooks' distinction between racism-a belief that race is the primary determinant of human capacities in fixed racial patterns of superiority and inferiority-and race discrimination-treating members of different races differently, regardless of whether racism is the antecedent. n42 Efforts to use law to change society's treatment of race seems to have focused more on racism than on the economic opportunities foreshortened or foreclosed for members of racial minorities. This may reflect resistance by judges or politicians to the larger vision of some law reformers or it may reflect the law's own tendency to distinguish corrective and distributive justice. n43 For example, many northern school desegregation efforts halted when they challenged class divisions affecting residential patterns and boundaries between cities and suburbs. Until economic opportunity is  [*179]  located squarely within the realm of the social, legal efforts to produce change in the status of race will not make much difference.
 
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n40. See Brooks, supra note 17 (citing studies by Rand & Money magazine).

n41. Derrick Bell, Faces at the Bottom of the Well, supra note 11; Mari Matsuda, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). Derrick Bell and Mari Matsuda have expressly considered respectively a taxation on discrimination and reparations for discrimination as responses to this problem.

n42. Brooks, supra note 17, at 362-63.

n43. See Neier, supra note 4, at 108-98; see also Milliken v. Bradley, 433 U.S. 267 (1977).
 
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III. MEANING OF "CHANGE"

The meaning of "change" may seem obvious. The goal is to alter, revise, renovate, substitute, move. And yet simply shifting from one static position to another, whether the topic is race relations, treatment of persons with disabilities or domestic violence, neglects a deeper notion of change. It is the difference in aiming for results and aiming for a continuing process of change.

This contrast explains why some people oppose reliance on government funds in running shelters for battered women. The danger is that strings attached to government funds will professionalize and bureaucratize the shelters, depriving them of their usefulness in promoting political critique and consciousness shifts in and beyond the shelters. n44 Yet a similar contrast between result-orientation and process-orientation could influence a choice between types of governmental support. For example, in contrast to the usual federal agency approach to environmental protection enforcement, the 1986 amendments to the federal Superfund toxic waste clean-up statute require businesses that make or use toxic substances to inform local communities about their activities. n45 The statute also makes federal money available to help community-based organizations acquire scientific and technical assistance needed to participate in a local process for managing health and safety risks. n46
 
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n44. See Weiner, supra note 27.

n45. 42 U.S.C.A. 9601 et seq. (Law. Co-op. 1989).

n46. See Shabecoff, supra note 36, at 243-44.
 
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Attention to the ongoing process of change would point toward initiatives that have the capacity to elicit constituencies that can support them in the future. On this basis, Theda Skocpol has advocated social welfare programs that are universal rather than targeted to the most needy. n47 Similarly, Susan Sturm has argued for judicial reform of prisons that does not merely set standards for decent conditions but instead sets in motion processes for more profound organizational and group change, altering the relationships between inmates and administrators. n48
 
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n47. Theda Skocpol, Targeting Within Universalism: Politically Viable Policies to Combat Poverty in the United States, in The Urban Underclass 411 (Christopher Jencks & Paul E. Peterson, eds., 1991); see also, Theda Skocpol, Universal Appeal: Politically Viable Policies to Combat Poverty, 9 Brookings Rev. 28 (1991).

n48. Susan Sturm, Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons, 138 U. Penn. L. Rev 805 (1990).
 
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I would like to explore legal initiatives on behalf of people with mental disabilities in this light. In barely twenty years, mental health law reforms have criticized and exposed failures in public institutions and commitment practices, called for better procedures and expanded participation by patients, and profoundly challenged the status quo. The accomplishments in a short time have been enormous. One measure of this is the recent indication that the upcoming reforms in national health care  [*180]  will include serious commitment to finance mental health services. Other measures include statutory successes, notably the adoption of the Americans with Disabilities Act n49 and the Fair Housing Amendments Act. n50 Still others are the casting of a person with Down's Syndrome in a leading role on a major network television show, and the legal protection against health care discrimination for persons with mental disabilities.
 
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n49. 42 U.S.C.A. 12101 (Law. Co-op. Supp. 1993).

n50. 42 U.S.C.A. 3601 (Law. Co-op. Supp. 1993).
 
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But some of the reforms themselves have produced considerable controversy. I know that it is easier to be a critic than a reformer. I once saw a cartoon that showed a balloon filled with hot air, tied to a sandbag-and in the cartoon, the liberals were the hot air and the conservatives were the sandbag. n51 Whether liberal or conservative, critics can blow hot air and sandbag change. But deinstitutionalization of persons with mental illness or mental retardation is a reform by one generation that could well be the scandal of the next. n52 My former boss, Judge David Bazelon, was a long-time advocate for the rights of persons with mental disabilities. But he warned that deinstitutionalization in many states simply moved people "from the back wards' to the back alleys' [and the] promise of freedom' has often proved to be as chimerical as the promise of treatment."' n53
 
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n51. James T. Pendergrast, Object Lessons: drawings by James T. Pendergrast 68 (1988).

n52. John Q. La Fond & Mary L. Durham, Back to the Asylum: The Future of Mental Health Law and Policy in the United States 100 (1992) (quoting David Rothman: "reforms of one generation become the scandals of the next").

n53. Judge David Bazelon, Foreword to Kenneth Donaldson, Insanity Inside Out: The Personal Story Behind the Landmark Supreme Court Decision xi (1976). I provide a further discussion of these issues in Martha Minow, Questioning Our Policies: Judge David L. Bazelon's Legacy for Mental Health Law, 82 Geo. L. J. (forthcoming Issue 1).
 
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The conditions of so many state mental institutions and schools for persons with mental retardation have been nothing short of abominable. Reformers have developed legal arguments that people have a right to treatment in the least restrictive possible environment, and that living in the community is itself a right and a therapeutic or habilitative practice. These arguments coincided with public budget crises and the result has been a massive movement of people from institutions. Where have they landed? The link between homelessness and deinstitutionalization has been exaggerated in the press and in public imaginations, but studies do indicate that some thirty to forty percent of homeless people have some kind of mental illness. n54 It is difficult in this light to challenge the widespread public perception that reformers have granted people with mental disabilities a right to live on the sidewalk. n55
 
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n54. Rael Jean Isaac & Virginia C. Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill 4 (1990).

n55. Id. at 340.
 
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More troubling still is that many of the ostensibly deinstitutionalized people have become reinstitutionalized. Some move to nursing homes, some to private clinics, many into the criminal justice system. Some may be threatened with return to the now vacant large-scale mental institutions.  [*181]  For those who are "in the community," at best they face fractionalized care, or often, no treatment at all. n56
 
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n56. La Fond, supra note 52, at 109.
 
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Is deinstitutionalization, then, a failure? If so, the failure reflects more on the larger society than on the reformers. Stigma and disrespect for people who seem different predate deinstitutionalization, and unsurprisingly persist. n57 It reminds me of the old joke: How many psychiatrists does it take to change a light-bulb? There are two punch-lines possible. One is, "What makes you ask this question?" The other is, "Just one, but the light bulb has to really want to change." By analogy, (if one can analogize to a punch line), how much can deinstitutionalization change society? Answer, it can, if society really wants to change.
 
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n57. Martha Minow, When Difference Has its Home, 22 Harv. C.R.-C.L. L. Rev. 111 (1987); see also, Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Patient, 103 Harv. L. Rev. 1201 (1990).
 
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Aye, there's the rub. Society hasn't really wanted to change much. Reformers, I submit, have to take this basic fact into account in devising reforms. If the goal was to open opportunities for decent lives for people with disabilities, it is far from achieved. n58 If the means chosen emphasized visibility, on the assumption that the community would respond to the actual sight of people in need, the astonishing capacity for human callousness needs to be acknowledged.
 
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n58. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (The Supreme Court has refused to treat the mentally disabled as a suspect class, perhaps because there have been political movements which have created social change on their behalf.)
 
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Some observers suggest, though, that the very disgust and controversy over deinstitutionalization sets in motion a process of continuing change. Commenting on deinstitutionalization efforts in Italy, Professor Ota de Leonardis writes that some problems don't fit the pattern of problem and solution. n59 She further claims that challenges to institutions also challenge the picture of a problem met by a solution. She concedes that deinstitutionalization creates ongoing problems, even crises. But she argues that this is a good result. It mobilizes many people, including patients, to act. It prompts experiments, complete with trial and error, and stimulates a continuing process of reform and reaction. From this vantage point, the failure in result is itself a success in the process of ongoing change.
 
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n59. See Ota de Leonardis, Deinstitutionalization, Another Way: The Italian Mental Health Reform, 1 Health Promotion 151, 153 (1986).
 
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If the effort is to catalyze larger social responses to people who seem different, however, I think we can do better than the pattern of homelessness, criminalization and reinstitutionalization we now see in most places. The hope is to set in motion a process of societal engagement with people who seem different and engaging the task of remaking society so that the costs of difference do not fall on the most vulnerable people.

For many reformers in this area, the commitment to ongoing change itself poses a dilemma. Will the advocates challenge the very notion of difference, but then lose the foothold for justifying special services and protection for people with mental disabilities? Or will the advocates  [*182]  emphasize difference, and then risk retrenchment, reinstitutionalization and rigidifying negative attitudes and stigma?

As a middle child, I have always hated either/ors. I think both/and is much more likable and much more likely. Stanley Cohen has commented that the difference claim could be used to justify services, not just social stigma. n60 Classifying people may have drawbacks, but it may also help mobilize resources. n61 Moreover, he claims, the weakest, least powerful members of society may be better served by having professionals and advocates attached to them by a labeling process than by dispersing them into the general sea of human misery. Those professionals and advocates, in turn, can keep the process of change ongoing.
 
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n60. Stanley Cohen, Visions of Social Control: Crime, Punishment and Classification 263 (1985).

n61. Id. at 268-70.
 
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A similar idea would acknowledge that the conception of people with disabilities as "different" is dominant and therefore a fruitful handle for changing society. n62 This idea must, I believe, be held in tension with Audre Lorde's powerful insight, "the master's tools will never dismantle the master's house." n63 Similarly, the notion of change should combine Adrienne Rich's image: "not as a leap/but a succession of brief, amazing movements/each one making possible the next," n64 with the Hasidic saying, "You cannot leap a chasm in two leaps." And one more thought with a twist: "When you are out on a limb, you've got the world below your feet." The "change" in law and social change needs these kinds of paradoxes, tensions and twists; it needs to connect the past with an unfolding future, results with process, and ends with means.
 
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n62. The Beacon Book of Quotations By Women, supra note 1, at 299 (quoting Jenny Holzer, Truisms (1977-79) ("use what is dominant in a culture to change it quickly")).

n63. Audre Lorde, Sister Outsider 112 (1984).

n64. Adrienne Rich, From a Survivor, in Diving into the Wreck, Poems 1971-72, 50 (1973).
 
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IV. ENDS

Speaking of ends, it's time for one. I admit I have not answered many of the questions that may have led you to attend this talk. I have proposed conceptions of "law," "social" and "change" that may seem surprising or unfamiliar. "Law," I suggest, includes judicial, legislative and regulatory action, but also their inaction, and the contrasting activities of private groups and individuals who pursue law enforcement or otherwise seek to alter the way the society is governed. "Social" should be read to include the contexts of politics and culture in which people forge consciousness of their society and their aspirations for it; "social" also includes the arenas for debates over what morality and economic justice should entail. "Change" includes not only specific, discrete alterations, but also processes of renovation and continuing challenge of the status quo.

You may not agree with these definitions. If I spark a debate over them, I will be delighted, for my most fundamental concern is the way  [*183]  the terms of "law," "social" and "change" have largely remained unexamined in debates over law and social change. And now I'll offer one more way to identify two kinds of people: those who leave without saying good-bye and those who say good-bye without leaving. I'm in the second group, so farewell, but I'll stick around now in hopes of further conversation.



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