The Rights Revolution and Support Structures for Rights Advocacy

Abstract

Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998. Pp. xv + 326 pages. $17.00 paper. The American judiciary has dramatically increased its protection for individual rights since the 1950s, when the United States Supreme Court began deciding and supporting a host of new constitutional claims, including freedom of speech and the press; rights against discrimination on the basis of race and sex; privacy rights; and due process rights in criminal and administrative proceedings. Critics and defenders of this dramatic increase in judicially proclaimed individual rights often attribute this transformation in the law to activist judges. In The Rights Revolution, Charles Epp challenges the view that activist judges are primarily responsible for the expansion of judicially protected individual rights in the United States. He also rejects theories that our rights revolution is attributable to the existence of a constitutional bill of rights or to a culture of rights consciousness. Although Epp concedes that all of these factors may contribute to rights revolutions, he asserts that organizations, lawyers, and money are indispensable ingredients. He argues that judicial attention and approval for individual rights grows out of deliberate, strategic organizing by rights advocates (p. 2). Strategic rights advocacy succeeds, he says, only when there is a for legal mobilization consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing. Epp also ties his argument about the causes of the rights revolution to debates about whether judicially protected rights illegitimately interfere with democratic processes. Epp asserts that the strong support structure for individual rights claims in the United States reflected widespread support (p. 5) for individual rights. Therefore, he concludes, the process that produced the expansion of judicially protected individual rights is not undemocratic. Epp probably is correct that the support structure for rights advocacy was integral to the rights revolution in the United States and that it is essential for mobilizing legal rights in other liberal democracies as well. He makes an important contribution by challenging the conventional emphasis on judicial leadership and by explaining in detail how each element of the support structure-organized groups, willing and competent legal counsel, and financial resources-significantly contributed to strategic rights advocacy. He also introduces a helpful comparative element to the analysis of legal mobilization. His case studies of India, England, and Canada strongly suggest that other favorable conditions-an activist judiciary, a strong bill of rights, and a culture that frames disputes in terms of rights-may not be sufficient to generate a rights revolution in the absence of a strong support structure for rights advocacy. However, several weaknesses detract from the significant achievements of this book. Although Epp marshals substantial evidence suggesting that support structures are crucial for legal mobilization, his definition of legal mobilization excludes a large realm of rights activism that occurs outside the Supreme Court and, indeed, outside the courts altogether. Moreover, he relies primarily on one measure of legal mobilization to reduce and quantify his claim about the relationship between support structures and legal mobilization in the courts. Epp, in trying to isolate support structures from other favorable conditions to prove his thesis, underestimates how these factors are likely to influence one another. Finally, he does not adequately support his intriguing claim that the rights revolution in the United States was not undemocratic because it grew out of a broad-based support structure. Despite these limitations, Epp's book is significant, not only for what it accomplishes directly but also for the new research it is likely to spawn. …