Thomas F. Burke

Is There an Empirical Literature on Rights

The empirical literature that attempts to study rights is at an impasse. It can demonstrate that big claims about how some rights structure politics are overblown, but it has struggled to go beyond this step. This is in large part because studying rights is much more difficult than is commonly appreciated. A study of rights promises implicitly to be a study of how rights politics differs from other kinds of politics. But rights are so ubiquitous and so diverse in form that it is often unclear what the excluded other is. We examine three books on rights that we admire: two by political scientists, Gerald Rosenbergs The Hollow Hope and Michael McCanns Rights at Work, and one by an anthropologist, Sally Merrys Human Rights and Gender Violence. These books conceptualize rights in diverse ways, in diverse settings, using diverse methodologies; yet they run up against similar difficulties in trying to think beyond the cases they study. At the conclusion, we make some humble suggestions for how researchers might try to overcome these problems.

Political Regimes and the Future of the First Amendment

Fifty years ago the political scientist Robert Dahl concluded that courts are usually in sync with “the policy views dominant among the lawmaking majorities” and thus offer little help to aggrieved minorities (Dahl, 1957, p. 285). In recent years, Dahls classic formulation has received renewed attention. This chapter uses the example of the Rehnquist Courts First Amendment decisions to analyze “regime politics” theory. On religion cases the Rehnquist Court was generally in sync with the socially conservative strain in the Republican Party, but in other First Amendment areas the pattern is far more complex, raising questions about the relationship between conservative judges and the political movements that brought them to office.