Christine B. Harrington (NYU) has posted 'Administrative 'States' of Judicial Policy on Gender-Motivated Violence' (chapter in The Legal Process and the Promise of Justice (eds., R. Greenspan, H. Aviram, and J. Simon). NY: Cambridge University Press, 230-258, 2019) on SSRN. Here is the abstract:
The paper focuses on a decade-long battle (1990–2000) involving feminist lawyers/activists, members of Congress, and the federal courts over creating a civil right to be free from “gender-motivated violence,” as defined by the 1994 Violence Against Women Act (VAWA). It offers an interpretative sociolegal analysis of civil rights policymaking in a political time when judicial conservatism re-emerges (late twentieth century) and effectively competes for control over the administrative state, from the bench as well as off the bench.
In this political time, judicial conservatives mobilize “judicial administration” norms for the purpose of expanding the judiciary’s institutional role in shaping civil rights legislation. Conservative judges and Justices frame/reinterpret “gender-motivated violence” through a series of administrative justifications (e.g., caseload crisis, originalism). Rather than “weakening” the New Deal – Great Society administrative state, as much of the “judicial backlash” literature suggests, I argue that judicial administration resources, as deployed by the judicial branch, leveraged a historic challenge to the entrenched “comprehensive rational policymaking” regime that had structured much of U.S. civil rights policy through the 1960s and 1970s.