ABSTRACT
For more than three decades scholars and other analysts have debated whether the benefits of resorting to courts to pursue social change outweighed the costs of litigation to litigants, litigators, the economy, and society. Critics have questioned the net benefits of litigating as opposed to changing policies or practices through markets or in legislative, bureaucratic, electoral, or other non-judicial arenas (Horowitz 1977; Melnick 1983; Rosenberg 1991; Sandler and Schoenbrod 2003). Some of these criticisms have been general, system-wide if not always systematic, and even cultural (Glendon 1993; Kagan 2001). Other critiques have focused on specific cases or issues and have assessed concrete benefits and, especially, demonstrable costs (Derthick 2010a; Schuck 1986). Of course, legal scholars and practitioners have answered such questions and such questioning vigorously, especially by emphasizing advances and setbacks beyond winning or losing trials and other calculable, concrete outcomes (Bogus 2001; Feeley and Rubin 1998; Koenig and Rustad 2001; McCann 1994; Mather 1998; Rubin and Feeley 2003; Scheingold 1974; Wagner 2007).
