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Rosenberg

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Rosenberg s Methodology Rosenberg s Hypothesis Rosenberg s Hypothesis (continued) Constraint I Constraint II Constraint III What about Roe v. Wade? – PowerPoint PPT presentation

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Title: 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 to 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
What about Roe v. Wade?
9
Constraint I
The limited nature of constitutional
rights This constraint can be overcome if there
is ample legal precedent for change.
10
Roe v. WadeOvercoming Constraint I
  • The Limited Nature of Constitutional Rights
    overcome by well established line of cases on
    marital and procreative privacy--cases already
    used to strike down abortion laws in lower and
    state courts

11
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.
12
Roe v. WadeOvercoming Constraint II
  • Lack of Judicial Independence overcome by
    widespread elite support and little popular
    opposition to reform of abortion laws prior to
    Roe.
  • After Roe there was significant new opposition
    from elites
  • 68 constitutional amendments proposed in Congress
  • a variety of anti-abortion riders
  • the Hyde Amendment
  • states rewrote laws hostile to abortion
  • proliferation of right to life groups
  • Aggregate public opinion did not shift that much

13
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.

14
Roe v. Wade Overcoming Constraint III
  • Lack of Enforcement Powers overcome by support
    from some citizens AND
  • (Condition 2) the accident that the courts
    decisions allowed for market implementation

15
Rosenbergs Conclusion
  • Courts can almost never produce significant
    social reform. Problems unsolvable in the
    political context can rarely be solved by the
    courts. Litigation drains energy that could be
    better spent on political efforts.
  • Reliance on court substantially weakened
    pro-choice forces. They failed to organize
    politically (we won). They helped to pass the
    Hyde Amendment assuming the court would overturn
    it. Symbolic victories are mistaken for
    substantive ones.
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