Silverstein, Law’s Allure
Jan 18, 2016
Silverstein, Law’s Allure
Policy-making (adapted from Barnes)Mobilization
Information Gathering (discovery)
Rulemaking (decision)
Implementation/Enforcement
Juridification because effective
Lower costs to access courtsStrike down state laws
across countryMay not need to
compromiseBrown as example?
Juridification because mobilizing
Distills larger controversy into easily recognized case(s)
Language of law creates larger sense of rights
Creates larger movement through fundraising and publicity
Brown as example?
Juridification because normativeLegitimacy of Courts, possibly
ConstitutionLaw creates clarity in midst of
normative conflictLegal language of use in
mobilization: Bakke and language of diversity
Brown as example?
Juridification because blame avoidance
Courts as unelected have greater freedom
Legislators delegate tough decisions to others (“legislative deferrals”)
Example: Americans with Disabilities Act of 1991
ADA DefinitionsDisability is: “a physical or mental
impairment that substantially limits one or more major life activities of such individual”
Employers are required to provide disabled with “reasonable accommodation”
Don’t Ask, Don’t Tell (2009-2010)• Recent Federal District Court Action: –Reinstatement of one officer in WA– Injunction against policy (nationally) in CA
• Presidential Action: –Study and partial support of DoD hierarchy–Support of policy in courts
• Congressional Action:–Deference to DoD by DADT supporters–Race against time by critics
• Ultimate Revision by Congressional Act
Wm. Wayne Justice, Two Faces of Activism
Appointed to bench by LBJMost well-known for decisions
1. Requiring TX to improve prison conditions 2. Improving TX juvenile detention facilities3. Desegregating TX school systems4. Desegregating TX public housing5. Requiring bilingual education6. Striking tuition requirements for children
of aliens in public schools
Wm. Wayne Justice, Two Faces of Activism
Two Faces:
Jurisprudential ActivismRemedial Activism
What is difference between two and should it make a difference?
Lynn Mather, “The Fired Football Coach”
What is importance of Yukica v. Leland?Not all policy-making at appellate levelFraming of issues in novel fashionCommunity-wide discussionPrecedent for future cases
Broader framework regarding termination: Value of work lies beyond compensation, but in “collateral opportunities”