About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

52 UCLA L. Rev. 477 (2004-2005)
Courts as Forums for Protest

handle is hein.journals/uclalr52 and id is 491 raw text is: COURTS AS FORUMS FOR PROTEST Jules Lobel 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 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 from the traditional, private dispute model and the institutional law reform model, the two models traditionally described by legal scholars. The reduced emphasis on winning or losing and the lesser role of the judge are two features that distinguish this model from the others. Our nation has seen 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, up until modern instances where private citizens and public officials have attempted to challenge governmental actions, our system's courts have been used as forums to stir debate by the citizenry. 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 II or other similar rules to stifle popular debate stirred by lawsuits that may be considered * Professor of Law, University of Pittsburgh Law School. I want to thank my research assistants, Jason Hess and Maggie Schuetz, for their research help, and the University of Pittsburgh Document Technology Center for invaluable assistance in preparing this Article. The feedback I received from my presentations at faculty colloquia at Stanford Law School, Boston University School of Law and New York Law School also was incredibly helpful. I also want to thank Karen Engro, Jeffrey Fogel, Susan Koniak, Staughton Lynd, John Parry, Michael Ratner, and Rhonda Wasserman for their helpful comments on a draft of this Article, and Dean David Herring of the University of Pittsburgh Law School for his generous support. Portions of this Article draw upon my previous work, Success Without Victory: Lost Legal Battles and the Long Road to Justice in America.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most