Rosenberg’s 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.
Rosenberg’s 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.]
Rosenberg’s 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.
1. The limited nature of constitutional rights;
2. The lack of judicial independence;
3. The judiciary's lack of powers of implementation.
Rosenberg’s 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.
Constraint I
“The limited nature of constitutional rights”
This constraint can be overcome if “there is ample legal
precedent for change.”
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.”
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:
1. Positive incentives are offered to induce compliance.
2. Costs are imposed to induce compliance.
3. Court decisions allow for market implementation.
4. 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.
Brown v. Board of Education:
The 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).
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.
Constraint I
“The limited nature of constitutional rights”
This constraint can be overcome if “there is ample legal
precedent for change.”
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.
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.”
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.
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:
1. Positive incentives are offered to induce compliance.
2. Costs are imposed to induce compliance.
3. Court decisions allow for market implementation.
4. 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.
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.
Rosenberg’s 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)