The Rights Revolution : Lawyers, Activists, and Supreme Courts in Comparative Perspective

Rating:
Summary: Compelling reexamination of rights revolutions
Review: Charles Epp has done something interesting by providing what should have been a self-evident explanation for rights revolution meant to supplement the standard explanations. Conventional wisdom has it that rights revolutions are created either by one or a combination of any of the following: a general rights consciousness in society, a constitutionally entrenched bill of rights, or liberal judges interested in pushing the rights agenda forward. Epp argues that none of these explanations alone sufficiently explain why rights revolutions occur. Instead he argues that a rights revolution depends upon a support structure in civil society able to fund and organize strategic rights litigation. Epp develops this theory by examining the limitations of conventional explanations for the US rights revolution, which began around 1917. After revealing these limitations, Epp examines the creation of the support structure and demonstrates how this more adequately explains the developing rights revolution. Prior to the development of rights oriented groups, the only persons or groups that were able to sustain strategic litigation were businesses. But, beginning in the early 20th century, rights groups developed sufficient funding and organizational capabilities necessary to allow sustained rights litigation. The judicial rights agenda, Epp demonstrates, is directly responsive to these types of litigation strategies.

After developing his theory in the US context, Epp tests it through examination of three countries: India, Britain, and Canada. In India we see a country that should, under conventional theories, have experienced a radical rights revolution. Yet, as a result of the weak support structure, no sustained rights agenda emerged. The British example is interesting in that conventional explanations suggest no rights agenda should have emerged, but a limited rights revolution has emerged as a result of the development of specialized rights litigation groups. Epp's examination of Canada debunks the myth that the rights revolution resulted solely from adoption of the Charter in 1982.

I said above such an explanation should have been self-evident because the seminal cases defining and creating rights have to start with litigation choices. Yet academic studies have routinely ignored the litigation side of things and focused on courts. This is probably a result of the focus in constitutional studies upon the cases and their results rather than the litigation process that brought the cases up in the first place. Epp's study supplements the conventional explanations for rights revolution and provides a fuller picture than the typical claim that activist judges alone cause such revolutions.