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Realizing the Rights Revolution: Litigation and the American State

Published online by Cambridge University Press:  27 December 2018

Sarah Staszak
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Abstract

The implementation and enforcement of civil rights laws in the aftermath of the mid-twentieth-century rights revolution has been a prominent concern for a multidisciplinary group of scholars. This article reviews a recent literature that is devoted to better understanding the dynamics of judicial authority and enforcement power and, in particular, how courts are frequently empowered to enforce laws through complex interactions with an array of public and private actors. The article emphasizes new books by Charles Epp and Sean Farhang, which each examine different features of this enforcement process. In The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), Farhang explores the frequency with which Congress has chosen to enforce its civil rights statutes through incentivizing private litigation. In Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (2010), Epp examines how civil rights are enforced and transformed through the relationship between administrators, activists, and lawmakers within bureaucratic organizations. Together, these books expand our understanding of the politics and processes of implementing rights in practice and, more broadly, challenge and enrich our perspective on the effectiveness of the American state in enforcing rights. The often complex series of self-conscious legislative, judicial, and administrative choices and interactions necessary in order to deliver rights protections requires that we view policy enforcement from a broader institutional and political perspective. From that perspective, we can see that effective implementation is far from automatic.

Type
Review Essay
Information
Law & Social Inquiry , Volume 38 , Issue 1 , Winter 2013 , pp. 222 - 245
Copyright
Copyright © American Bar Foundation, 2013 

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References

Barnes, Jeb. 2007. Bringing the Court Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making. Annual Review of Political Science 10:25–43.Google Scholar
Brown, Michael K. 1999. Race, Money and the American Welfare State. Ithaca, NY: Cornell University Press.Google Scholar
Burbank, Stephen B. 2009. Has the Supreme Court Limited Americans' Access to Courts? Hearing before the U.S. Senate Committee on the Judiciary.Google Scholar
Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle Over Litigation in American Society. Berkeley: University of California Press.Google Scholar
Burke, Thomas F. 2004. Judicial Implementation of Statutes: Three Stories About Courts and the Americans with Disabilities Act. In Making Policy, Making Law: An Interbranch Perspective, ed. Miller, Mark C. and Barnes, Jeb. Washington, DC: Georgetown University Press.Google Scholar
Chen, Anthony. 2009. The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972. Princeton, NJ: Princeton University Press.Google Scholar
Clemens, Elisabeth S., and Cook, James M. 1999. Politics and Institutionalism: Explaining Durability and Change. Annual Review of Sociology 25:441–466.Google Scholar
Dahl, Robert A. 1957. Decision‐Making in a Democracy: The Supreme Court as a National Policy‐Maker. Journal of Public Law 6:279–295.Google Scholar
de Tocqueville, Alexis. 1969. Democracy in America, ed. Mayer, J. P. New York: Knopf Publishing Group.Google Scholar
Derthick, Martha A. 2011. Up in Smoke: From Legislation to Litigation in Tobacco Politics. Washington, DC: CQ Press.Google Scholar
DiMaggio, Paul J., and Powell, Walter W. 1983. The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields. American Sociological Review 48:147–160.Google Scholar
Dobbin, Frank, and Sutton, John, 1998. The Strength of a Weak State: The Employment Rights Revolution and the Rise of Human Resources Management Divisions. American Journal of Sociology 104:441–476.Google Scholar
Dodd, Lynda. 2007. DeShaney v. Winnebago County: Governmental Neglect and the “Blessings of Liberty.” In Civil Rights Stories, ed. Gilles, Myriam and Golubuff, Risa. New York: Foundation Press.Google Scholar
Edelman, Lauren. 1990. Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace. American Journal of Sociology 95:1401–1440.Google Scholar
Edelman, Lauren. 1992. Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law. American Journal of Sociology 97:1531–1576.Google Scholar
Epp, Charles. 1999. The Rights Revolution. Chicago, IL: University of Chicago Press.Google Scholar
Feeley, Malcolm M., and Rubin, Edward L. 1998. Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons. New York: Cambridge University Press.Google Scholar
Frymer, Paul. 2008. Black and Blue: African Americans, Labor Unions, and the Decline of the Democratic Party. Princeton, NJ: Princeton University Press.Google Scholar
Frymer, Paul. 2011. Building an American Empire: Territorial Expansion in the Antebellum Era. UC Irvine Law Review 1:913–954.Google Scholar
Galanter, Marc. 2004. The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Journal of Empirical Legal Studies 1:459–470.Google Scholar
Galanter, Marc, and Cahill, Mia. 1994. Most Cases Settle: Judicial Promotion and Regulation of Settlements. Stanford Law Review 46:1339–1391.Google Scholar
Galanter, Marc, and Luban, David. 1993. Poetic Justice: Punitive Damage and Legal Pluralism. American University Law Review 42:1393–1463.Google Scholar
Gifford, Donald G. 2010. Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription. Ann Arbor: University of Michigan Press.Google Scholar
Gillman, Howard. 2002. How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891. American Political Science Review 96:511–524.Google Scholar
Goluboff, Risa L. 2003. “We Live in a Free House Such as It Is”: Class and the Creation of Modern Civil Rights. Pennsylvania Law Review 151:1977–2018.Google Scholar
Graber, Mark. 1993. The Non‐Majoritarian Difficulty: Legislative Deference to the Judiciary. Studies in American Political Development 7:35–72.Google Scholar
Hacker, Jacob S. 2002. The Divided Welfare State: The Battle over Public and Private Social Benefits in the United States. New York: Cambridge University Press.Google Scholar
Haltom, William, and McCann, Michael. 2004. Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago, IL: University of Chicago Press.Google Scholar
Horowitz, Donald L. 1977. The Courts and Social Policy. Washington, DC: Brookings Institution.Google Scholar
Kagan, Robert A. 2003. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press.Google Scholar
Kalev, Alexandra, and Dobbin, Frank. 2006. Enforcement of Civil Rights Laws in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time. Law & Social Inquiry 31:855–879.Google Scholar
King, Desmond, and Lieberman, Robert C. 2009. Ironies of State Building: A Comparative Perspective on the American State. World Politics 61:547–588.Google Scholar
Klarman, Michael J. 2004. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Cambridge, MA: Harvard University Press.Google Scholar
Lieberman, Robert C. 2002. Ideas, Institutions, and Political Order: Explaining Political Change. American Political Science Review 96:697–712.Google Scholar
Lovell, George I. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. New York: Cambridge University Press.Google Scholar
Mack, Kenneth W. 2005. Rethinking Civil Rights Lawyering and Politics in the Era Before Brown . Yale Law Journal 115:256–354.Google Scholar
Mann, Michael. 1993. The Sources of Social Power: The Rise of Classes and Nation‐States, 1760–1914. New York: Cambridge University Press.Google Scholar
McCann, Michael W. 1994. Rights at Work. Chicago, IL: University of Chicago Press.Google Scholar
McConnell, Grant. 1966. Private Power and American Democracy. New York: Knopf.Google Scholar
McCubbins, Matthew, Noll, Roger, and Weingast, Barry. 1989. Structure and Process, Politics, and Policy: Administrative Arrangements and Political Control of Agencies. Virginia Law Review 75:431–482.Google Scholar
McMahon, Kevin. 2004. Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown . Chicago, IL: University of Chicago Press.Google Scholar
Melnick, R. Shep. 1994. Between the Lines: Interpreting Welfare Rights. Washington, DC: Brookings Institution.Google Scholar
Melnick, R. Shep. 2011. Regulating Rights: Rethinking the Supreme Court's Role Within the Civil Rights State. Paper presented at the Annual Meeting of the New England Political Science Association, Hartford, CT.Google Scholar
Novak, William. 2003. The Legal Origins of the Modern American State. In Looking Back on Law's Century, ed. Garth, Bryant, Kagan, Robert, and Sarat, Austin. Ithaca, NY: Cornell University Press.Google Scholar
Orren, Karen. 1992. Belated Feudalism: Labor, the Law, and Liberal Development in the United States. New York: Cambridge University Press, 1991.Google Scholar
Orren, Karen, and Skowronek, Stephen. 2004. The Search for American Political Development. New York: Cambridge University Press.Google Scholar
Parrillo, Nicholas. 2007. The De‐Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century. Yale Journal of Law and the Humanities 19:1–96.Google Scholar
Pedriana, Nicholas, and Stryker, Robin. 2004. The Strength of a Weak Agency: Enforcement of Title VII of the Civil Rights Act and the Expansion of State Capacity, 1965–1971. American Journal of Sociology 110:709–760.Google Scholar
Resnik, Judith. 2008. Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards of Aggregate Translocal Actions.” University of Pennsylvania Law Review 156:1929–1969.Google Scholar
Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago, IL: University of Chicago Press.Google Scholar
Scheingold, Stuart. 1974. The Politics of Rights: Lawyers, Public Policy, and Political Change. Ann Arbor: University of Michigan Press.Google Scholar
Sheingate, Adam. 2003. Political Entrepreneurship, Institutional Change, and American Political Development. Studies in American Political Development 17:185–203.Google Scholar
Silverstein, Gordon. 2009. Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics. New York: Cambridge University Press.Google Scholar
Skocpol, Theda. 1992. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States. New York: Cambridge University Press.Google Scholar
Skrentny, John David. 1996. Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago, IL: University of Chicago Press.Google Scholar
Skrentny, John David. 2002. The Minority Rights Revolution. Cambridge, MA: Harvard University Press.Google Scholar
Staszak, Sarah. 2010. Institutions, Rulemaking, and the Politics of Judicial Retrenchment. Studies in American Political Development 24:168–189.Google Scholar
Stein, Judith. 1998. Running Steel, Running America: Economic Policy and the Decline of Liberalism. Chapel Hill: University of North Carolina Press.Google Scholar
Teles, Steven M. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton, NJ: Princeton University Press.Google Scholar
Whittington, Keith E. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press.Google Scholar
Wilkinson, J. Harvie. 1981. From Brown to Bakke: The Supreme Court and School Integration, 1954–1978. New York: Oxford University Press.Google Scholar
Witt, John Fabian. 2004. The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law. Cambridge, MA: Harvard University Press.Google Scholar
Zemans, Frances K. 1983. Legal Mobilization: The Neglected Role of the Law in the Political System. American Political Science Review 77:690–703.Google Scholar
Zelizer, Julian E. 2012. Governing America: The Revival of Political History. Princeton, NJ: Princeton University Press.Google Scholar