Legal mobilization and policy change : the impact of legal mobilization on official minority-language education policy outside Quebec

The doctoral thesis investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy outside Quebec using a model of judicial impact derived from New Institutionalism theory. The New Institutionalism (NI) model of judicial impact synthesizes the dominant approaches to judicial impact found in the US literature, which are reviewed in Chapter Two, and transcends them by placing them within a framework based on the New Institutionalism. The model, as developed in Chapter Three, proposes that certain factors will increase the probability of judicial decisions having a positive influence on policy, such as whether incentives are provided for implementation. The model argues that institutions---as structures and state actors---have important influences on these factors. Furthermore, the NI model recognizes that institutions play a partial and contingent role in the construction of policy preferences and discourse and in mediating the political process more generally over time. Chapter Four demonstrates that the NI model can be applied usefully to reinterpret existing accounts of how legal mobilization and judicial decisions impacted the struggle over school desegregation in the US---a case that provides a heuristic comparison to OMLE policy as it concerns the question of how and where minorities are educated. Chapters Five through Seven describe OMLE policy development in Canada from the latter 1970s until 2000, with case studies of Alberta and, to a lesser extent, Ontario and Saskatchewan. Chapter Eight reveals that legal mobilization by Francophone groups cannot be understood without reference to institutional factors, particularly the Charter of Rights and funding from the federal government. The policy impact of legal mobilization was influenced strongly by the Supreme Court's 1990 Mahe decision and by federal government funding to the provinces for OMLE policy development, while public opinion appeared to be a least a moderately constraining force on policy change. Chapter Eight further reveals that legal mobilization and judicial decisions helped Francophone groups gain access to the policy process and shaped the policy goals and discourse of actors within the process over time. Chapter Nine bolsters confidence in the conclusions generated in Chapter Eight by demonstrating how the explanations provided by the NI model, which emphasize the direct or mediating influence of institutional factors, are superior to explanations generated by a Critical Legal Studies (CLS) approach, a "systems" approach, a "dispute-centered" approach, and by Gerald Rosenberg's model. The thesis concludes by suggesting avenues for future research on judicial impact, particularly research that is focused on comparative institutionalism.

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