Rosenberg’s Methodology

1. 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.

2. 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.]

3. 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. • The limited nature of constitutional rights; • The lack of judicial independence; • The judiciary's lack of powers of implementation.

4. 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.

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 Education:The Impotent Court • For a decade after Brown virtually nothing happened. • 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 • Then beginning in the late 1960s, the courts seemed to have greater impact. • 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. 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)