Vol. 9 No. 6 (June 1999) pp. 221-223.
THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE by Charles R. Epp. Chicago: The University of Chicago Press, 1998. 328 pp.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
The rights revolution accomplished in the United States through decisions of the U.S. Supreme Court--reaching its peak levels between 1961 and 1975--was largely contingent upon on concerted pressure from well-organized rights advocates. That is the argument of this book. There is great virtue in a book that contains analysis so cogent that its conclusions seem quite obvious and familiar, even though they have not been previously expressed so clearly in this form. This is such a book. It should be required reading for every scholar of law and politics and for undergraduate students, who need a solid foundation for understanding the politics of judicial review. It clearly demonstrates findings that we should have known years ago—and in general terms we possibly did.
Thus, the central question of the book is, "Why did the rights revolution occur?" Professor Epp begins by asking that question about the rights revolution in the United States that began possibly in 1937, in 1954, or in 1961 (a precise date is more clearly evident by hindsight, but is subject to dispute even then). His answer to his central question is solid and persuasive, but he generalizes it beyond the United States by examining the comparable experiences of India, the United Kingdom, and Canada to see whether his answer suffices also in other systems. Thus, his book is among the few successful genuinely comparative works by American law and politics scholars.
His hypothesis is that rights revolutions occur where there is political pressure consisting of "deliberate, strategic organizing by rights advocates" whose work is possible because of the presence of a "support structure for legal mobilization" (pp. 2-3: all page references are to the paper edition). This constitutes his "support structure" explanation.
Epp acknowledges also the contributions of three other elements, so his "support structure" consisting of rights advocates with sufficient resources represents a necessary but not a sufficient condition. The other elements include "constitution-centered" and "judge-centered" points that work in concert with sponsored litigation to make a "rights revolution" possible. Together they represent the traditional wisdom that proposes that 1) the presence or absence of constitutionally-embedded individual rights provisions, 2) the presence or absence of independent-activist judges, and 3) the level of popular support for civil rights and liberties, altogether determine whether a rights revolution may occur. But his book demonstrates persuasively that even where all three of these are present, they may not be sufficient by themselves.
His analysis cases rests on data reflecting the aggregate civil rights agenda of the relevant highest national appellate court, its agenda on criminal justice cases, and its agenda on women’s rights cases. For the United States, case frequencies from the 1932 term forward reveal the beginnings in the 1930s of both the U.S. rights revolution in the aggregate and for criminal justice cases in particular, and in the 1970’s for women’s rights cases.
A particularly interesting point is derived from Richard Abel’s research on the American legal profession. Epp’s suggestion is that the diversification of the American bar did not come until after 1910. As late as then, the bar remained, "overwhelmingly Protestant and native born" (Abel, 1989, 201). Thus as new Jewish and Catholic immigrants and African-Americans became lawyers, they the formed the cadres who represented previously unrepresented groups. The same thing occurred, though much later, with women becoming attorneys in ever increasing numbers in the 1960s and after (pp. 55-57).
Another key element is the money for litigation support. For one example, in the U.S. the support provided by the American Fund for Public Service beginning in the 1920s made the work of the ACLU possible. And the symbiotic relationship between the Howard University Law School and the NAACP is another example. Support for litigation to protect women’s rights was one consequence of the women’s rights movement of the mid-1960s.
Dedicated lawyers and money provided the support structure for rights litigation in the United States. Together they were responsible both for landmark decisions and for quick reactions to the openings offered by those decisions.
India:The Indian Constitution seems to offer the basis for a rights revolution in its manifold rights provisions, and the Indian Supreme Court clearly has the power of judicial review. However, the prestige of the Court was seriously eroded during Indira Gandhi’s emergency rule from 1975 to 1977, and it was not until after that period that the Indian Supreme Court began to assert its powers relative to the enforcement of equality provisions and of due process. Even so, Epp finds that as the Court asserted its powers there was "no substantial increase in the incidence of such claims" (p. 91). He argues that the "Indian interest group system is fragmented, the legal profession consists primarily of lawyers working individually, not collectively, and the availability of resources for noneconomic appellate litigation is limited" (p. 95).
United Kingdom: Epp suggests that a convergence of factors seems to make the U.K. to be an "especially inhospitable site" for a rights revolution. Most of the reasons are familiar, such as the absence of a constitutionally-based rights document, the conservative nature of the British judiciary and the British legal culture, and the strength of the tradition of parliamentary sovereignty. Yet he finds that a modest rights revolution has come to Britain. For example, he shows a steady upward trend, beginning in 1960, in the number of appellate cases involving civil rights and liberties. In his estimation the rights agenda reflects the "nature and strength of the support structure for legal mobilization" (p. 140). He reviews the rise of interest groups such as Liberty (formerly the National Council for Civil Liberties) and Justice (a non-partisan civil rights and law reform group) and the development of Community Law Centres as key elements of the support structure. Another element was the change in English legal education, with many university law departments offering courses on civil rights and liberties for the first time in the 1970s. He concludes that what "changed in Britain to produce an emergent rights revolution was neither the constitution nor the judges but the growing availability of resources and the growing aggressiveness of legal activists" (p. 155).
Canada: The Canadian rights revolution offers a test of Epp’s hypothesis, since the advent of the Canadian Charter of Rights and Freedoms (1982) seems to present a simple explanation for its origin. However, he finds that a rights support structure contributed both to the development of the Charter and to the "steadily growing number of rights cases after. The takeoff on most issues occurred in the early 1970s. So once again he finds that a rights revolution was largely contingent on the "growth of a support structure for legal mobilization" (p. 196).
The world rapidly moves one. The Blair government has moved a bill through the Parliament that provides for the domestic application in the U.K. of the European Convention on Human Rights, and even before that legislation was passed, the European Court of Human Rights had already begun to serve the function of a "constitutional chamber" for enforcement of certain rights. And now the creation of a permanent International Criminal Court
offers the prospect of criminal prosecutions of genocide, war crimes and crimes against humanity within a new institution to be created for the enforcement of human rights. But these developments do not tarnish Epp’s findings for in the enactment of the U.K.’s Human Rights Act 1998, in the litigation before the European Court of Human Rights, and in the efforts to create the ICC, non-governmental organizations have played an important role—and perhaps the key role—in making these outcomes possible. So the support structure suggested by Epp is evident once again. By any measure his book is an important contribution to our understanding of "rights revolutions."
References
Abel, Richard L. 1989. AMERCIAN LAWYERS. New York: Oxford University Press.