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Moving Legal Arguments from "Off the Wall" to the Mainstream:

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Abstract:

This paper seeks to understand the role of advocates in determining which legal arguments are taken seriously by the courts by comparing two case studies: the changing fortunes of arguments in favor of gun rights and gay rights (particularly same sex marriage rights) which have moved from being “off the wall” (in Jack Balkin's terms) to being accepted by the legal establishment. I argue that gaining such acceptance relies on articulating a position in a manner that it can be approached through the norms of constitutional interpretation, and understood as something other than a simple policy preference. While changes in public opinion and court personnel play a role in determining what arguments can be taken seriously by the legal establishment, the role of advocates is also vital, as they determine what issues are brought before the courts and how those issues are articulated in constitutional terms.
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Name: Southern Political Science Association
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http://www.spsa.net


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URL: http://www.allacademic.com/meta/p544197_index.html
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MLA Citation:

Hensley, Jonathan. "Moving Legal Arguments from "Off the Wall" to the Mainstream:" Paper presented at the annual meeting of the Southern Political Science Association, Hotel InterContinental, New Orleans, Louisiana, Jan 12, 2012 <Not Available>. 2012-11-27 <http://www.allacademic.com/meta/p544197_index.html>

APA Citation:

Hensley, J. , 2012-01-12 "Moving Legal Arguments from "Off the Wall" to the Mainstream:" Paper presented at the annual meeting of the Southern Political Science Association, Hotel InterContinental, New Orleans, Louisiana <Not Available>. 2012-11-27 from http://www.allacademic.com/meta/p544197_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper seeks to understand the role of advocates in determining which legal arguments are taken seriously by the courts by comparing two case studies: the changing fortunes of arguments in favor of gun rights and gay rights (particularly same sex marriage rights) which have moved from being “off the wall” (in Jack Balkin's terms) to being accepted by the legal establishment. I argue that gaining such acceptance relies on articulating a position in a manner that it can be approached through the norms of constitutional interpretation, and understood as something other than a simple policy preference. While changes in public opinion and court personnel play a role in determining what arguments can be taken seriously by the legal establishment, the role of advocates is also vital, as they determine what issues are brought before the courts and how those issues are articulated in constitutional terms.

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