Rosenberg

1
Rosenbergs Methodology

• Topic My aim is to understand to what extent
  courts helped and can help produce liberal
  change. xi
• Research Question Can courts produce
  significant social reform? and carefully
  defines all the terms
• Literature Search There appear to be two
  competing views dynamic court, constrained
  court. He investigates each view carefully and
  concludes that they are mutually exclusive, so
  one of them has to be wrong.

2
Rosenbergs Methodology

• Hypothesis He states a clear hypothesis that is
  capable of being tested with empirical evidence
  and capable of being refuted.
• Hypothesis Testing He examines carefully all
  the evidence relevant to his hypothesis. Note
  this is not the same as providing evidence
  consistent with his hypothesis. The fundamental
  difference between science and propaganda is to
  be found in this distinction.

3
Rosenbergs Hypothesis

• The conditions enabling courts to produce
  significant social reform will seldom be present
  because courts are limited by three separate
  constraints built into the structure of the
  American political system.
• The limited nature of constitutional rights
• The lack of judicial independence
• The judiciary's lack of powers of implementation.

4
Rosenbergs Hypothesis(continued)
However, when certain conditions are met, courts
can be effective producers of significant social
reform. These conditions occur when EACH of the
three constraints are overcome.
5
Constraint I
The limited nature of constitutional
rights This constraint can be overcome if there
is ample legal precedent for change.
6
Constraint II
The lack of judicial independence This
constraint can be overcome if there is support
for change from substantial numbers in Congress
and from the executive.
7
Constraint III

• The judiciary's lack of powers of
  implementation
• This constraint can be overcome if there is
  either support from some citizens, or at least
  low levels of opposition from all citizens, AND,
  at least one of the following four conditions are
  met
• Positive incentives are offered to induce
  compliance.
• Costs are imposed to induce compliance.
• Court decisions allow for market implementation.
• Administrators and officials crucial for
  implementation are willing to act and see court
  orders as a tool for leveraging additional
  resources or for hiding behind.

8
Brown v. Board of EducationThe Impotent Court

1. For a decade after Brown virtually nothing
   happened.
2. This can be explained primarily by the 3rd
   Constraint (the judiciary's lack of enforcement
   power).

9
Brown v. Board of Education Overcoming the
Constraints

1. Then beginning in the late 1960s, the courts
   seemed to have greater impact.
2. This too can be explained by the theory.

10
Constraint I
The limited nature of constitutional
rights This constraint can be overcome if there
is ample legal precedent for change.
11
Brown v. Board of Education Overcoming
Constraint I

• The Limited Nature of Constitutional Rights
  overcome by Brown itself, which expanded the
  constitutional right and built on precedent even
  if the opinion didn't emphasize the point.

12
Constraint II
The lack of judicial independence This
constraint can be overcome if there is support
for change from substantial numbers in Congress
and from the executive.
13
Brown v. Board of Education Overcoming
Constraint II

• Lack of Judicial Independence overcome by
  renewed support of national elites and weakening
  resistance from state and local elites, but not
  until the middle to late 1960s.

14
Constraint III

• The judiciary's lack of powers of
  implementation
• This constraint can be overcome if there is
  either support from some citizens, or at least
  low levels of opposition from all citizens, AND,
  at least one of the following four conditions are
  met
• Positive incentives are offered to induce
  compliance.
• Costs are imposed to induce compliance.
• Court decisions allow for market implementation.
• Administrators and officials crucial for
  implementation are willing to act and see court
  orders as a tool for leveraging additional
  resources or for hiding behind.

15
Brown v. Board of Education Overcoming
Constraint III

• Lack of Enforcement Powers overcome by a change
  in the culture of race that muted controversy,
  AND
• (Condition 1) incentives for compliance came into
  play
• federal financial aid for local schools, but not
  if they are segregated
• requirements of business for relocation to your
  community, e.g., racial peace and good schools
  AND
• (Condition 4) courts used as cover by politicians.

16
Rosenbergs Conclusion

• The theoretical framework of the constraints and
  conditions successfully explains the varying
  patterns of judicial efficacy. . . .
• Courts can matter, but only sometimes, and only
  under limited conditions. (106)