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that discriminate against gays and lesbians with particular focus on marriage equality (Part 3). The book examines both direct effects (whether change occurred) and indirect effects such as changes in public opinion, political organizing, and legislative action. Rosenberg maintains that the efforts made by women's rights, pro-choice, and civil rights activists to use the courts to produce progressive social change have not been very effective. To support this claim, he examines a great deal of data. In looking at the effects that
255:(1973), and asserts that in each examined situation, the Court was largely unable to attain any tangible, empirically-measurable change. Rosenberg names three constraints that preclude the US Supreme Court from being truly effective, and arrives at the conclusion that although the Court is indeed capable of accomplishing significant change, such change can only occur when these three constraints are overcome.
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imposition of costs by non-court actors for non-implementation. The third condition for judicial efficacy is the existence of a market that can implement the decision. The fourth condition hypothesizes that if there is both public and elite support, and support from administrators and those actors whose support is necessary for Court decisions to be implemented, then change can occur.
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had on desegregation, for example, Rosenberg looks at the percentage of black schoolchildren attending mixed schools in the South in the years preceding this landmark decision, and the years following it. He finds almost no measurable change in the ten years following this decision. Indeed, it is not
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In the third edition
Rosenberg presents in-depth case studies of Supreme Court decisions requiring the end of racial segregation in schools and racial discrimination throughout society (Part 1), creating the right to abortion access and ending gender discrimination (Part 2), and striking down laws
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The First
Constraint is that the nature of constitutional rights precludes the Court from hearing or effectively acting on many significant social reform claims and lessens the chances of popular mobilization. This Constraint can be overcome if there exists sufficient precedent for change based on
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is able to affect widespread progressive social change. Naturally, such a drastic departure from conventional beliefs drew the ire of many critics, both within and beyond academia. Others praised the book. In 1993 it was awarded the Gordon J. Laing Prize by the
University of Chicago Press (for a
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put it, the Court controls neither the sword (Executive branch) nor the purse (Legislative branch), it must rely on cooperation from the other two branches in order to enforce its decisions. This
Constraint can be overcome either by securing support of citizens or at least not having significant
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Some critics argue that the empirical data that
Rosenberg presents is not fine-grained enough to identify subtle yet important changes. Others suggest that his constraints and conditions are imprecise, meaning that the argument lacks predictive power. Some critics claim that the Court is most
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If the first and second constraints are overcome, Rosenberg hypothesizes that the third constraint, the Court's lack of power, can be overcome if at least one of four conditions is met. The first condition is that non-court actors offer incentives for implementation. Condition 2 highlights the
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Rosenberg examines two views of the United States
Supreme Court: the view of the Dynamic Court and the view of the Constrained Court. The Dynamic Court view maintains that the United States Supreme Court is indeed capable of affecting widespread progressive change, often citing cases such as
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is likely, in the long run, to make little difference in the number of legal abortions. In Part 3 on marriage equality
Rosenberg finds that the Supreme Court followed public opinion and elite support. It was that support that allowed the
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book written by a
University of Chicago faculty member that brings the greatest distinction to the University of Chicago Press). In 2003 the American Political Science Association gave
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branches to affect significant social reform. This
Constraint can be overcome by securing support from substantial numbers in Congress and securing the support of the executive branch.
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and published in 1991. A highly controversial work, it produced labels ranging from "revolutionary" to "insulting." A Second
Edition of the book was published in 2008 by the
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The Third Constraint is that the Court does not have the power to develop necessary policy and implement decisions that could affect significant reform. Because, as
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Rosenberg sides largely with the Constrained Court view. He studies several landmark cases that have been handed down from the Court, such as
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as examples. The Constrained Court view, on the other hand, holds that because of the existing constraints imposed upon the Court by the
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doesn't address. Finally, critics have alleged that progressives are more sophisticated in their approach to change than
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that the percentage begins to increase annually. In the 3rd edition he presents data showing that despite
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the Wadsworth Award (for a publication ten years or older that has made a lasting contribution).
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suggests, litigating only when judicial victory is likely to produce the change they desire.
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In his book, Gerald Rosenberg questions the validity of the commonly accepted axiom that the
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The Second Constraint is that the Court does not have sufficient independence from the
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The American Political Science Review, Vol. 86, No. 3 (Sep., 1992), pp. 812–813.
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decision invalidating restrictions on marriage equality to be implemented.
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The Hollow Hope: Can Courts Bring about Social Change?
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The Hollow Hope: Can Courts Bring About Social Change?
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