notes on THE HOLLOW HOPE - Title The Dynamic and the...

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Title: The Dynamic and the Constrained Court Thesis: Sets out the Dynamic Court and Constrained Court views. Incorporates constraints from the Constrained Court view, and general insights from the Dynamic Court view, to develop a list of conditions and constraints on courts producing significant social reform. Courts may produce significant social reform when There is ample legal precedent for change, and There is support for change in Congress and in the executive, and There is support from some citizens or at least low levels of opposition, and One of the following: There are positive incentives for compliance, or Costs for non-compliance, or Decisions allow for implementation by the market, or The court provides leverage for individuals willing to act. The logic of the Constrained Court view The Constrained Court view suggests that courts will generally not produce significant social reform. There are three reasons supporting this view: (a) the limited nature of constitutional rights, (b) the lack of judicial independence, and (c) the judiciary’s inability to develop appropriate policies and its lack of powers of implementation. The limited nature of constitutional rights When making their case, claimants have to make there claim on the basis that some putative constitutional right is being denied them. However, constitutional rights are limited in nature. This has four important consequences. First, it limits the sorts of claims that can be made, “for not all social reform goals can be plausibly presented in the name of constitutional rights”. There is no “right to clean air”, for example. Second, even where claims can be made, claimants need the court to interpret existing rights in such a way as to produce new rights. This desire for ‘expansive readings’ of the Constitution is thwarted by (a) a dominant legal culture that sets bounds on interpretation through anticipation of reversal, and (b) the constraining influence of precedent. Third, claiming a right in court means accepting the constraints of the legal system in producing a remedy. There are certain procedural hurdles – standing, class action, etc., - and also ‘output’ hurdles: the court deals with specific cases and their remedies, not with underlying problems that gave rise to the rights-claim. Fourth, pursuing rights-claims in legalistic fashion robs them of their political appeal and diverts
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This note was uploaded on 10/22/2007 for the course POSC 130g taught by Professor Below during the Fall '06 term at USC.

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notes on THE HOLLOW HOPE - Title The Dynamic and the...

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