15 - Lecture 11/15/07 Revisiting La Fleur Factor Doctrinal...

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Lecture 11/15/07 Revisiting La Fleur Factor DCV CCV Doctrinal -Constitutional law inherently vague -Same facts, same law, different results depending on the judge -Any real counter- argument? -Probably not, but the CCV is an “or” argument Institutional - WEAL provided courts policy-making opportunities - Supreme Court directly shaped the outcome - Court Set the political agenda and sparked coalition - Shifting interpretations reflect appointment power -Power had the last say Cultural - Legalistic culture frames employment issues in terms of individual rights as opposed to social benefits -Court decisions ebbed and flowed with the fortunes of the women’s movement Brown revisited: Why turn to the federal courts Doctrinal factors “good” factors under existing “separate but equal” standard Institutional factors - No clear legislative strategy given disenfranchisement -federal courts insulated from electoral pressures Cultural factors - Cold war imperatives arguably created favorable elite environment Brown v. Board and the DCV/CCV Debate DCV view: o Doctrine did not mater—Court eschewed separate but equal doctrine o Judicial Activism based on policy considerations not precedent o Entrepreneurial lawyers turning to the corts seeking social change o System of fragmented government often drives groups to the courts o Brown as a catalyst for changing political discourse and building coalitions CCV View: o Brown did not make changes on the ground
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15 - Lecture 11/15/07 Revisiting La Fleur Factor Doctrinal...

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