Monday, March 5, 2012

Prof. NeJaime reviews Constitutional Redemption: Political Faith in an Unjust World

In a new essay, Constitutional Change, Courts, and Social Movements, to be published in the Michigan Law Review, Professor Doug NeJaime reviews Jack Balkin's influential new book, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011). Balkin is the Knight Professor of Constitutional Law at Yale Law School and is one of the most influential constitutional scholars in the country. In the review, NeJaime argues that by situating courts as important actors in the process of constitutional and social change, Balkin's analysis redeems courts in a field - constitutional theory - that has largely turned away from courts as undemocratic, incapable, and inherently conservative. Ultimately, NeJaime takes his work on law and social movements to Balkin's account of constitutional change, arguing that attention to the way in which social movement lawyers deploy court-based tactics suggests that Balkin's account of courts is more realistic than the pessimistic accounts that have dominated constitutional scholarship recently. While Balkin focuses on social movements' relationship to courts, he does not borrow explicitly from the extensive literature on social movements in sociology. Accordingly, NeJaime suggests a research agenda that uses the theoretical frameworks and empirical insights from social movement theory to develop a more dynamic, context-specific, and contingent account of courts in the process of social change. In the end, NeJaime argues, social movement theory would help constitutional scholars specify both the possibilities and limitations of courts and court-centered tactics.

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