The Hollow Hope Summary

Gerald Rosenberg, Stuart Scheingold, and Charles Epp are three influential voices in the debate over law’s capacity to achieve social change. When speaking of law in this context, the authors are focused on court decisions and look to the Supreme Court for most of their case studies of interest. Although each avoids a simple “Yes, courts are effective” or “No, they are not” theory of social change, there are both overlaps and disparities among their respective claims. Not only do they fall on different points on the spectrum of whether or not courts are effective change makers, they also stress different reasons for why or why not this is this case –how court action can be meaningful for progress. Taken together, their arguments address both

the material and cultural, or symbolic, resources that must be present in order to further progressive social change using the law. Also related is the often mythical nature of these legal rights and to what extent this myth has any bearing on reality.
Rosenberg most strongly refutes claims of the courts’ efficacy for social change, as suggested by the title of his book, The Hollow Hope.

He recognizes that two prevailing views of courts’ roles are each insufficient explanations: the “dynamic court” view that the judiciary can act for the otherwise politically disadvantaged in the face of opposition and the “constrained court” view that the court is by its nature largely unable to do so. He does conclude that the latter is a more accurate description of reality. He directly relates the dynamic court view to the “myth of rights” – the belief in rights’ intrinsic existence and power – described by Scheingold. Although Scheingold also approaches rights with skepticism, he ultimately gives more weight than does Rosenberg to their power, as far as the myth itself can serve as a political resource. In his more contemporary preface, Scheingold acknowledges Rosenberg’s evidence of the impotence of the courts. However, he counts it as irrelevant to the development of a new politics of rights. Scheingold does, however, consider Epp’s work as building toward what a new iteration of the politics of rights would ideally look like. Epp’s primary claim is that support structures – which can include the provision of financial support and specifically the ability to afford legal aid – are necessary to facilitate the actual impact of formal, symbolic

rights.
The connections among the three authors go beyond their explicit attributions to one another and include the relative importance given to both material and immaterial resources in pursuing social change through legal channels. This conversation also overflows to connect with other important works in this field of study. For instance, in terms of necessary material conditions, each of their arguments in some way supports the claim of Marc Galanter that the “haves” – those with wealth and/or power – come out ahead when interacting with the law. Scheingold also notes that resources are necessary for winning the litigation game. Although Rosenberg critiques Galanter for neglecting what happens after a decision, Galanter’s classifications are in fact useful for understanding how advantages continue into the enforcement stage. Epp’s central support structure claim is about the necessity of resources in bringing actual success ¬– a rights revolution – through implementation. However, it is important to note that this support structure is only rarely created or strengthened by the courts themselves.
Epp also recognizes the closely related necessity of being a “repeat player” who is able to engage in sustained litigation. Rosenberg uses Brown v. Board of Education (1954) as one of his key examples of the Court’s failure to bring about substantive change, despite the case’s reputation. However, for Epp, the achievements of Brown must be understood in the context of the cases that followed it. Large law firms and advocacy organizations bring benefits such as economies of scale that can allow for such an ongoing campaign. The NAACP-LDF, the Justice Department, and the ACLU enabled the success of the individual litigants in Monroe v. Pape (1961) and the subsequent strengthening of civil rights. Scheingold also stresses the importance of evaluating the legal success of desegregation within the larger context of the growing strength of the civil rights movement, with some of this strength coming from successful litigation itself. Rosenberg would add that both “haves” and “repeat players” are also in a better position to resist the practical impositions of formal legal progress that does not benefit them, as has been the case with large polluters and environmental protection laws.
The benefit of being a have and a repeat player may extend beyond this more observable power. For example, Scheingold notes the importance of collective identities and the role that organizing and litigation can play in shaping these identities and drawing attention to shared grievances. Lawyers themselves bring not only technical expertise but also a sense of significance and gravity. A lawyer can turn an individual problem into a political one. The converse, noted elsewhere, is a lawyer’s power to act as a gatekeeper by “cooling out” legitimate problems. More generally, the conversation surrounding the ability of law to change society should recognize that change is a cultural, not simply technical, project. In Scheingold’s more recent preface, he notes that the literature on patterns of legal consciousness, such as the work of Patricia Ewick and Susan Silbey, would be informative for a new articulation of the politics of rights. Their conception of legality is closely related to his discussion of popular understandings about rights, obligations, and guilt. The decision in Brown was a statement about the political significance of the grievances regarding segregation. Scheingold’s theory recognizes that rights granted or affirmed in the courtroom can affect perceptions, which can subsequently affect reality. A significant obstacle to progressive social change is acceptance of the status quo by those suffering injustice.
Although Epp is centrally concerned with the necessity of a support structure in actually giving voice to and ensuring impact of legal rights, he does also recognize the symbolic foundations underlying rights revolutions. For example, even though the formal passage of the14th Amendment itself did not have immediate effects, it did change conceptions about rights, which laid some long-dormant groundwork for the eventually rights revolution in the U.S. For Epp, popular rights consciousness alone will certainly not produce change, but it is necessary for it, largely because rights revolutions are bottom-up rather than top-down processes.
Not only can court action legitimize a desire for social change, but it can also instill hope about what change is possible by sending signals about potential outcomes. Scheingold similarly discusses how validation by a court spurns future mobilization. This signaling process is documented elsewhere in regard to both formal law and law-like sets of rules. Laura Beth Nielson noted in her study of street harassment that experience with how the law responds, or fails to respond, to a harm shapes willingness to use the law in the future as a means of social change. The women in Anna-Maria Marshall’s piece also stopped bringing claims under their workplace harassment policy when they observed that they would not be taken seriously.
Rosenberg does not completely negate the importance of social attitudes in helping or hindering social progress, but he does not find that court action itself plays a role in this cognition process.

In the case of civil rights, what happened in the courtroom was merely a reflection of the growing pressure outside; the court itself did not help build this pressure. Using evidence on popular attitudes, Rosenberg largely dismisses the claim of the dynamic court view that courts are “educators” able to influence the hearts and minds of society. In terms of implementation, compliance is achieved when there are tangible costs for noncompliance such as loss of federal funding or competitive edge in the

market.
Rosenberg takes his critique of the symbolic victory even further. Not only are symbolic wins ineffective, but they also contribute to myths that mask inequalities. Formal rights can lure people into believing that they have fulfilled their moral obligations or serve as covers for injustice. For example, the Miranda warning and environmental protections are often used as procedural “check boxes” and hide a lack of substantive change. Neither Scheingold nor Epp is oblivious to this danger. For example, Epp tells of an early proponent of legal aid who saw it as a way to enhance the perceived fairness of the legal system and keep new immigrants from taking more radical action. Scheingold also notes that symbolic change can sometimes be wrongly confused with substantive change. Rosenberg concludes that the distant myth of rights should be sacrificed for strategic benefit. Advocates for same-sex rights would have been better off going after civil unions rather than marriage, even if marriage equality feels more symbolically meaningful. Even in the absence of backlash or pacification, Rosenberg points to limited resources as a reason for abandoning litigation to pursue other avenues of change.
None of the authors proffer that courts can independently orchestrate progress – each unpacks a certain set of external conditions and constraints, to use Rosenberg’s language, that facilitate or hinder it. However, Scheingold and Epp at least offer a glimmer of hope for the role of legal rights (though Scheingold is a bit more cautious in presenting his argument in the later edition). In any case, change is likely to be incremental, largely because of the weakness of the courts in enforcement. Epp challenges critics, putting on them the burden of explaining why we should return to a pre- “rights revolution” state, before access to court became more democratic and when only the “haves” had any reason to hope.