Stoddard 97 Thomas B. Stoddard, attorney and adjunct professor at the New York University School of Law
New York University Law Review November, 1997 72 N.Y.U.L. Rev. 967 ESSAY: BLEEDING HEART: REFLECTIONS ON USING THE LAW TO MAKE SOCIAL CHANGE
"Rule-shifting" cannot possibly become "culture-shifting" without public awarenessboth that a change has taken place, and that that change will affect daily life. Ordinary citizens must know that a shift has taken place for that shift to have cultural resonance. Most lawmaking - legislative, judicial, or administrative - takes place quietly, influencing a limited universe of the interested and connected. In order for "rule-shifting" to become "culture-shifting," however, a change must be generally discerned and then absorbed by the society as a whole.
Even many obviously important changes in law lack this element of public knowledge. In 1983 the New York State Board of Regents, which has legislative power over all the schools, public and private, in the state, promulgated a new regulation forbidding corporal punishment in schools. The change had potential for "culture-shifting." It made a fundamental - indeed, daring - change in rules that affected (at least hypothetically) all families in the state with children of school age, and it dealt with a subject of universal concern - whether children should be disciplined by bodily force, or not. Yet the new regulation received little attention, perhaps because it came through the speedy and quiet deliberations of a body that is itself little known or understood. A measure with "culture-shifting" potential became a mere shift in rules. Teachers and administrators took note of it, as did some interested parents, but the public by and large overlooked the change. What might have been the occasion for a statewide discussion of child-rearing was lost.
Changes that occur through legislative deliberation generally entail greater public awareness than judicial or administrative changes do. Public awareness is, indeed, a natural concomitant of the legislative process. A legislature - any legislature - purports to be a representative collection of public delegates engaged in the people's business; its work has inherent public significance. Judicial and administrative proceedings, by contrast, involve private actors in private disputes. Those disputes may or may not have implications for others, and they are often subject to the principle of stare decisis, but they are not public by their very nature. (Administrative rulemaking is a diff- [*981] erent animal, akin - at least in theory - to legislative activity, but it isstill typically accorded less attention than the business of legislatures.)
Legislative lawmaking is, by its nature, open, tumultuous, and prolonged. It encourages scrutiny and evaluation. Thus, it is much more likely than other forms of lawmaking to promote public discussion and knowledge. For that reason alone, such lawmaking possesses a special power beyond that of mere rulemaking. Indeed, the real significance of some forms of legislative lawmaking lies in the debate they engender rather than the formal consequences of their enactment.