How does policy surrounding equal rights develop, and what role do courts play in this development? This book argues that legal development is due to a discourse between high courts and elected officials, whereby courts offer a legal interpretation and elected officials signal their acceptance or rejection of that interpretation. This book seeks to explain seemingly contradictory or inconsistent court judgments through a “deliberative partnership” theory that focuses on the discourse between judges and aligned elected officials (p. 223). Stephan Stohler’s Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States offers qualitative case studies based upon judicial opinions, legislative debates, and legal briefs, showing how high courts often initiate legal development yet revise their interpretations when elected officials reject their legal innovation.
For example, U.S. litigation following the Voting Rights Act of 1965 (VRA) pushed the Supreme Court to determine evidentiary standards for vote dilution lawsuits. Congress had not provided clear guidance, so Justice Byron White introduced a new doctrine that compromised between the previously established discriminatory intent and discriminatory effect doctrines. Progre
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