Their own petard - The New York Times's columnist Bob Herbert

Reason, Jan, 1998 by Walter Olson

Fans of activist litigation discover the other guy can sue too.

Any enumeration of surviving pterodactyls in op-eddom would have to accord a high perch to The New York Time's Bob Herbert, whose form of class-warfare rhetoric was already wearing thin in the days of Harry Truman. "The Republican jihad against the poor, the young and the helpless rolls on," wrote Herbert in February 1995. "The United States has entered a nightmare period in which the overwhelming might of the Federal Government is being used to deliberately inflict harm on the least powerful people in the nation."

Having wrongly forecast that NAFTA would be the ruin of American workers, Herbert at the end of 1994 saw disaster ahead for the nation's cities as well: "When the next Congress is sworn in the Republicans will resume their war on urban America with a vengeance.... 'You will see that this will be a dark time for the cities,' said a high-ranking national Democrat, who asked not to be identified," which was in retrospect prudent of that high-ranking personage, since American cities were about to enter their biggest renaissance in decades.

Usually the only surprise in a Herbert column is that his editors once again failed to tone down the vehemence, but one of his columns this October did deserve wider notice. It showed the beginnings of a new skepticism on the important subject of lawsuits as a vehicle for social change.

In the familiar model of such a suit, ideologue-lawyers line up a sympathetic client and sue a government agency or other institution with the aim of securing new legal doctrine that will apply in many other cases - in effect, aiming a lobbying campaign at judges rather than legislators. What is "particularly perverse" about this process, Herbert now writes, is that "the case is argued from first to last by representatives of the plaintiff and the institution." Other persons whose rights and obligations will be profoundly affected by the case's outcome have "absolutely no say," being "shut out of the proceedings."

Moreover, a well-organized offensive team can pick and choose its issues and where and when to sue, while the sued defendants scramble to react. "Often they are lawyers representing government agencies, school boards or universities. Their cases are not coordinated and there is no overall strategy. And when they lose, they often appeal willy-nilly, without due consideration of their likelihood of success, or of the much wider effect that an adverse higher court ruling can have." To make matters worse, the lawyers defending the institutions "are not necessarily strong believers...themselves" in the policies under attack. In short, social-reform lawsuits are neither a fair nor a neutral way of obtaining sweeping changes in policy.

What accounts for Herbert's hard-won wisdom? Funny you should ask. It turns out he has come up with this critique in reaction to the success of conservative and libertarian opponents of affirmative action who've been challenging racial preferences in cases like Taxman v. Piscataway. He says nothing about applying the same critique to 30 years of liberal reformist lawsuits demanding system-wide school busing and school-finance equalization, judicial takeovers of prison systems and social-service agencies, or even suits in which a single New Mexico jury second-guesses the temperature at which McDonald's coffee can be served in every other state. When Herbert next writes about those topics, we can expect him to show new concern for the bystanders in litigation - students in schools deemed "too good" in so-called Robin Hood funding cases, shopkeepers robbed by prisoners freed pursuant to overcrowding orders, buyers of January New Hampshire take-out coffee who'd rather get it hot and take their chances. Right?

Whether or not that happens, when even Bob Herbert begins to express doubts about the ideology of Better Living Through Litigation, you know it's in trouble.

Social-reform litigation is thriving these days in Egypt, of all places, but it emanates from an unexpected quarter. According to a Wall Street Journal news account, a cadre of Islamic-militant lawyers have "filed countless lawsuits against Egypt's government ministries and leading cultural and intellectual figures to get sharia, or Islamic law, implemented."

In one of the best-known such lawsuits, militants invoked the right to sue on behalf of "God's rights" - an officially recognized concept in Egyptian law analogous to the progressive American law notion of "citizen standing" - and secured a ruling branding Professor Nasr Hamid Abu-Zaid a heretic on account of his "perverse," "atheistic" view that some Koranic passages were best interpreted metaphorically. The court proceeded to order Abu-Zaid to divorce his wife, who wished to remain married to him; the couple fled to the Netherlands. Other suits have succeeded in restoring the controversial practice of female genital mutilation/circumcision (choose your own term) and in securing bans on numerous movies and books deemed insufficiently respectful of Islam. "We have no guns, no bombs, no knives. We have only pen, paper, the law and the courts," one activist told the Journal. "Look what we've done with them." Indeed. We could compare notes.