Document Type

Article

Publication Date

2004

Abstract

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the hein"public law" or "institutional reform" model.

The ongoing debate between these two views of the judicial role has obscured a third model of the role of courts in a democratic society. This model has been largely ignored by legal scholars and viewed as illegitimate by some courts. The third, alternative perspective views courts as forums for protest. Under this model, courts not only function as adjudicators of private disputes, or institutions that implement social reforms, but as arenas where political and social movements agitate for, and communicate, their legal and political agenda. The courts as forums for protest model differs in key respects from the traditional, private dispute model and the institutional law reform model. The reduced emphasis on winning or losing and the lesser role of the judge are two features that distinguish this model from the others. Although under-theorized, this model has deep roots. Our nation has a long tradition of litigators and movements using the courts as platforms for arguing controversial positions and garnering public support for them. From the Revolutionary period, through this country's struggle with the issues of slavery and women's suffrage, and up to and including modem instances where private citizens and public officials have attempted to challenge governmental actions, our courts have been used as forums to stir debate by the citizenry.

This article builds a theory of courts as forums for protest and develops several implications for lawyers and judges involved in such litigation. First, because of the importance of encouraging people to engage in discussion about current social issues, and because of the implications for freedom of speech, courts should not allow sanctions under Federal Rule of Civil Procedure 11 or other similar rules to stifle popular debate stirred by lawsuits that may be considered "frivolous" in that they argue against precedent or are viewed as losing cases. Bringing a lawsuit to generate publicity for one's cause should not be viewed as an improper or frivolous purpose under Rule 11. Second, under the courts as forums for protest model, judges will often find themselves in a difficult position: They will be faced with a situation where legal precedent and social and political reality collide. Though articulating a legal principle while deciding a case without enforcing that principle may seem problematic, judges should feel comfortable doing so when it is necessary in order to encourage society and governmental actors to remedy an injustice that will otherwise continue unchecked. Finally, progressive attorneys should adapt to this model as well. Realizing that litigation is part of an overall strategy that should include publicity and other forms of political action, they should become involved with the groups and movements they represent, and shape their litigation strategies so that they will dovetail with the overall goals of those movements.

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