Showing papers in "Law & Society Review in 2000"

The Rights Revolution and Support Structures for Rights Advocacy@@@The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective

Abstract: Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998. Pp. xv + 326 pages. $17.00 paper. The American judiciary has dramatically increased its protection for individual rights since the 1950s, when the United States Supreme Court began deciding and supporting a host of new constitutional claims, including freedom of speech and the press; rights against discrimination on the basis of race and sex; privacy rights; and due process rights in criminal and administrative proceedings. Critics and defenders of this dramatic increase in judicially proclaimed individual rights often attribute this transformation in the law to activist judges. In The Rights Revolution, Charles Epp challenges the view that activist judges are primarily responsible for the expansion of judicially protected individual rights in the United States. He also rejects theories that our rights revolution is attributable to the existence of a constitutional bill of rights or to a culture of rights consciousness. Although Epp concedes that all of these factors may contribute to rights revolutions, he asserts that organizations, lawyers, and money are indispensable ingredients. He argues that judicial attention and approval for individual rights grows out of "deliberate, strategic organizing by rights advocates" (p. 2). Strategic rights advocacy succeeds, he says, only when there is a "support structure" for legal mobilization consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing. Epp also ties his argument about the causes of the rights revolution to debates about whether judicially protected rights illegitimately interfere with democratic processes. Epp asserts that the strong support structure for individual rights claims in the United States reflected widespread support (p. 5) for individual rights. Therefore, he concludes, the process that produced the expansion of judicially protected individual rights is not undemocratic. Epp probably is correct that the support structure for rights advocacy was integral to the rights revolution in the United States and that it is essential for mobilizing legal rights in other liberal democracies as well. He makes an important contribution by challenging the conventional emphasis on judicial leadership and by explaining in detail how each element of the support structure-organized groups, willing and competent legal counsel, and financial resources-significantly contributed to strategic rights advocacy. He also introduces a helpful comparative element to the analysis of legal mobilization. His case studies of India, England, and Canada strongly suggest that other favorable conditions-an activist judiciary, a strong bill of rights, and a culture that frames disputes in terms of rights-may not be sufficient to generate a rights revolution in the absence of a strong support structure for rights advocacy. However, several weaknesses detract from the significant achievements of this book. Although Epp marshals substantial evidence suggesting that support structures are crucial for legal mobilization, his definition of legal mobilization excludes a large realm of rights activism that occurs outside the Supreme Court and, indeed, outside the courts altogether. Moreover, he relies primarily on one measure of legal mobilization to reduce and quantify his claim about the relationship between support structures and legal mobilization in the courts. Epp, in trying to isolate support structures from other favorable conditions to prove his thesis, underestimates how these factors are likely to influence one another. Finally, he does not adequately support his intriguing claim that the rights revolution in the United States was not undemocratic because it grew out of a broad-based support structure. Despite these limitations, Epp's book is significant, not only for what it accomplishes directly but also for the new research it is likely to spawn. …

Situating legal consciousness: Experiences and attitudes of ordinary citizens about law and street harassment

Abstract: The legal consciousness of ordinary citizens concerning offensive public speech is a phenomenon whose legal status has been vigorously debated, but which has received little empirical analysis. Drawing on observations in public spaces in three northern California communities and in-depth interviews with 100 subjects recruited from these public locations, I analyze variation across race and gender groups in experiences with offensive public speech and attitudes about how such speech should be dealt with by law. Among these respondents, white women and people of color are far more likely than white men to report being the targets of offensive public speech. However, white women and people of color are not significantly more likely than white men to favor its legal regulation. Respondents generally oppose the legal regulation of offensive public speech, but they employ different discourses to explain why. Subjects' own words suggest four relatively distinct paradigms that emphasize the First Amendment, autonomy, impracticality, and distrust of authority. Members of different racial and gender groups tend to use different discourses. These differences suggest that the legal consciousness of ordinary citizens is not a unitary phenomenon, but must be situated in relation to particular types of laws, particular social hierarchies, and the experiences of different groups with the law. "[H]ey white bitch, come suck my dick!"1 "I hate women; they're all sluts."2 "Monkey for a dollar!"3 "You fucking people need to go back where you came from, I'm sick of this, you come over here and think you can take everything away from us."4 I. Introduction When one experiences remarks such as these in a public place, law may be the last thing that comes to mind. However, ideas about law, both conscious and unconscious, shape how people make sense of such interactions, what types of speech they consider problematic, and what remedies or responses they believe are possible. Examining the links between people's experiences with street harassment and their attitudes about its legal regulation can shed light on the roots and consequences of the "legal consciousness" of different social groups. In this article I analyze the legal consciousness of ordinary citizens by examining how experiences with and legal attitudes toward offensive public speech vary by race, gender, and class. I find that white women and people of color experience dramatically higher levels of offensive public speech and that these experiences significantly affect their daily lives. Yet experiencing harms from offensive public speech does not translate into supporting its legal regulation. Subjects offer a variety of reasons to justify their opposition to the legal regulation of such speech. Members of different racial and gender groups articulate distinctive discourses about offensive public speech and the law that invoke various and competing schemas regarding law. These understandings reflect their prior experiences with the law and their attitudes about the prospects for social change through law. This variation suggests that an explicit comparison of particular legal phenomenon across categories of race, gender, and class provide a more nuanced understanding of legal consciousness. II. Prior Approaches to Offensive Public Speech Racist and sexist speech generate much debate about the proper balance between freedom of speech and protection of historically disadvantaged groups from verbal abuse. First Amendment absolutists argue that speech cannot and should not be legally restricted (Post 1991). Critical race theorists argue that racist speech results in substantial harms for its victims (Matsuda 1993), perpetuates inequality, and must therefore be legally limited to realize the equality guaranteed by the Fourteenth Amendment (Lawrence 1990). Cultural theorists contemplate how the performative aspects of speech translate into harms (Butler 1997). …

Racialized Policing: Residents' Perceptions in Three Neighborhoods

Abstract: One of the most controversial issues in policing concerns allegations of racial bias. This article examines citizens' perceptions of racialized policing in three neighborhoods in Washington, D.C., that vary by racial composition and class position: a middle-class white community, a middle-class black community, and a lower-class black community. In-depth interviews examined residents' perceptions of differential police treatment of individual blacks and whites in Washington and disparate police practices in black and white neighborhoods. Findings indicate, first, that there is substantial agreement across the communities in the belief that police treat blacks and whites differerently; and secondly, there is racial variation in respondents' explanations for racial disparities. On the question of residents' assessments of police relations with their own community relative to other-race communities, a neighborhood difference is found, with the black middle-class neighborhood standing apart from the other two neighborhoods. An overwhelming majority of blacks and whites in America believe that the criminal justice system should operate in a race-- neutral fashion and favor federal government intervention to ensure that minorities and whites receive equal treatment by the courts and police. Three-quarters of whites and 9 out of 10 blacks subscribed to this view in a recent poll (Washington Post 1995). But a person's support for the principle of equal justice does not mean that he or she believes the system actually dispenses unequal justice. Surveys consistently show, for example, that whites are less inclined than blacks to believe that police discriminate against minorities (Gallup 1997; Hagan & Albonetti 1982; Henderson et al. 1997; NBC News 1995; Time 1995; Weitzer & Tuch 1999). Blacks are more likely to believe that the police generally treat blacks more harshly than whites and that police racism and prejudice against blacks is common. At the neighborhood level, blacks are more likely than whites to believe that blacks living in the respondent's own community are treated unfairly by the police, and that black neighborhoods receive inferior treatment by the police. With respect to respondents' personal experiences of discrimination, blacks are much more likely than whites to report that they have been treated unfairly by police because of their race. There may be more to the story, however, than racial differences. Large aggregate studies of public opinion may mask important differences within racial groups. One such variable is neighborhood context. A small body of research suggests that neighborhood-related factors can influence citizens' relations with police. Such factors include local crime rates, demographic composition, economic conditions, subculture, and patterns of policing (Alpert & Dunham 1988; Apple & O'Brien 1983; Jacob 1971; Klinger 1997; Sampson & Bartusch 1998; Schuman & Gruenberg 1972; Smith 1986; Weitzer 1995). The relative importance of these interrelated factors has not been determined, nor has the literature established whether neighborhood racial makeup or neighborhood class level is more strongly associated with residents' attitudes toward the police. It is commonly assumed, however, that neighborhood racial composition strongly conditions residents' relations with police. In this perspective, residents of white and black communities differ in their attitudes toward police largely because police practices vary between white and black neighborhoods. Because of police bias or other reasons, African American neighborhoods receive inferior treatment by police, which includes poorer service and harsher actions toward people in the community. Inferior treatment adversely affects views of the police in black neighborhoods. An alternative perspective maintains that relationships with the police are conditioned less strongly by residents' racial backgrounds than by demands on law enforcement that vary by neighborhood class level. …

Social norms : Internalization, persuasion, and history

Abstract: At issue in the debate over social norms are different conceptions of human nature and the social order, of the ways people behave, and of the ways the law can both modify and be modified by social conduct. Three interpretive frameworks to the discussion of social norms are discussed: (a) whether social norms affect individual behavior merely as environmental/external factors or whether they also shape people's intrinsic predispositions; (b) the specific process by which norms influence people (i.e., whether preferences are considered predetermined or assumed to be modifiable as a result of internalization and persuasion); and (c) the ways social norms themselves are formed (whether merely via rational choice or also through historical transmissions). It is concluded that the discussion of social norms within a legal context is enriched by considering a "law and socio-economics" model, which combines the law and economics and law and society perspectives into a single discipline. I. The Rediscovery of Norms Legal scholars have rediscovered social norms. For decades, the insights and findings of law and society1 were largely ignored, and law and economics-which mostly ignores social norms-- was all the rage. In the past few years, however, new, powerful essays about social norms have begun appearing in law reviews.2 As Richard Epstein wrote recently, "[T]he subject of social norms is once again hot."3 Some of the scholars at the forefront of this revival attempt to integrate social norms into the law and economics paradigm4 while other scholars try to include them under the emerging "law and socioeconomics" model, which combines the law and economics and law and society perspectives into a single discipline.5 Much more is at stake than the division of labor among academic disciplines; also at issue are the different conceptions of human nature and the social order, of the ways people behave, and of the ways laws can both modify and be modified by social conduct. To highlight the alternative approaches to the study of social norms, I examine three pairs of opposing concepts central to a full exploration of the subject: (a) whether social norms affect individual behavior merely as environmental/external factors or whether they also shape people's intrinsic predispositions; (b) the specific processes by which norms influence people (i.e., whether preferences are considered to be predetermined or assumed to be modifiable as a result of internalization and persuasion); and (c) the ways social norms themselves are formed (whether merely via rational choice or also through historical transmissions). Law and economics scholars tend to use the first elements of each of these pairs (environmental factors, predetermination, and intentional choice) to integrate social norms into their models, to depict the actor as a free agent, and to portray the social order as based on aggregations of voluntary agreements. The law and society approach is based upon the opposite elements of the pairs: intrinsic predisposition, internalization and persuasion, and history. Law and socioeconomics combines these two sets of elements in ways that I will discuss. The legal scholars who study social norms stand out as compared to the much larger number of their colleagues who have yet to include this important concept in their scholarly paradigms. These pioneering legal scholars differ, though, in terms of the concepts they draw on to conceptualize social norms. Only some deal with internalization, still fewer with persuasion, and next to none with the role of history. This article argues that a full analysis of social norms requires the inclusion of all three conceptions. One can view the three concepts as the building blocks of a pyramid whose foundation is secure, while the other tiers are best shored up-or, in some cases, constructed. After briefly highlighting the importance of social norms for legal scholarship, in this article I examine the core concepts of law and socioeconomics and their importance for the understanding of social norms in legal studies in general. …

Does Law Matter for Economic Development? Evidence From East Asia

Abstract: Katharina Pistor and Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960-1995. New York: Oxford University Press, 1999. Pp. xi + 294 pages. $39.95 cloth. Kanishka jayasuriya, ed., Law, Capitalism, and Power in Asia: The Rule of Law and Legal Institutions. New York: Routledge, 1999. Pp. xiii + 345 pages. $99.99 cloth; $32.99 paper. Robert S. Brown and Alan Gutterman, Asian Economic and Legal Development. Uncertainty, Risk, and Legal Efficiency. Boston: Kluwer Law International, 1998. Pp. xv + 477 pages. $148.00 cloth. The relationship between law and economic development has been a central concern of modern social theory, providing a focal point for the analyses of Marx, Durkheim, and Weber. In the 1970s, law and society scholars drew on these traditions to inform international development policy in what was then called the "Law and Development Movement." These scholars, who focused primarily on Latin America and who were informed by an activist vision of law as a tool for social change, sought to export U.S. models of law and legal education, suggesting the possibility of a theoretically informed development policy focused on law (Tamanaha 1995). The Law and Development Movement ultimately fizzled (Gardner 1980; Trubek and Galanter 1974), and with it went the budgets for legal policy reform in developing countries. Donors turned their attention elsewhere. However, new theoretical developments, as well as the lingering importance of the underlying questions, have given momentum to a new wave of law and development activities on a far larger scale than ever before (deLisle 1999). Today, the relationship of law and economic development is again at the very forefront of development policymaking, as government agencies, international organizations, and the non-profit sector advocate the need for strengthening the rule of law in developing countries. Although it is probably a mischaracterization to assert that the new activity is institutionally and intellectually cohesive enough to form a "movement," it is clear that legal institutions occupy a central place in development assistance again (deLisle 1999:212-15). The resurgence of law and development corresponds with renewed interest in the rapid postwar growth of economies in East and Southeast Asia. By most accounts, law has not played a major role in Asian economic growth. Scholars have placed more emphasis on particular policies, institutions, and cultural underpinnings rather than on law per se (Upham 1994). For example, in its monumental study, The East Asian Miracle, the World Bank (1993) does not discuss the legal system. Preliminary evidence from Chinese economic reforms indicates that, for the most part, increased reliance on legal ordering has not displaced a system of economic organization based on connections, or guanxi (Lubman 1996; Jones 1994). Having drawn on evidence from Asia, some have claimed that the rule of law is dispensable in the pursuit of economic growth (see Davis 1998:304). There is clearly a tension between the centrality of law in theories of development and existing evidence from Asia. There are at least two possible resolutions of this tension, one empirical and the other theoretical. One possibility is that existing evidence is insufficient and that a more detailed study of Asian legal institutions would elucidate their central importance in Asian growth. The other possibility is that theoretical assumptions of donors and scholars about the universal importance of legal institutions are mistaken and that there is a need to adjust conceptual frameworks accordingly. At the broadest level, then, the questions of whether and how law matters for economic growth in Asia are of great importance for both theory and practice. Three recent studies address these questions in different ways. Together, they expand the empirical base for the study of Asian economic law and suggest new directions for policymakers concerned with the role of law in development. …

Cops, Counsel and Entrepreneurs: Constructing the Role of Inside Counsel in Large Corporations

Abstract: Inside counsel to major corporations have accrued more power and status within the legal profession, but continue to struggle for influence and legitimacy within the corporation. In-depth interviews with lawyers and managers in large businesses reveal that inside counsel construct different professional roles for themselves depending on circumstances. We identify three ideal types of such roles: they act as cops (limiting their advice to legal mandates), counsel (combining legal and business advice), or entrepreneurs (giving priority to business objectives rather than legal analysis). The entrepreneurial role and its associated discourse seem to mark a departure from earlier studies of inside counsel. We argue that entrepreneurial tendencies reflect the efforts of corporate counsel to adapt their images and lawyering styles to the prerogatives of contemporary management. Accordingly, inside lawyers limit their gatekeeping functions, emphasize their dedication to managerial objectives, and defer to management's judgments about legal risk. Nonetheless, inside counsel retain their professional identities as lawyers and rarely express an interest in moving into corporate management. Inside counsel are "professionals" who present themselves as enthusiastically committed to corporate objectives.

National Politics as International Process: The Case of Anti-Female-Genital-Cutting Laws

Abstract: Looking at power struggles primarily within national boundaries reifies the nation-state and misses larger issues of control in the international system. Using the example of female genital cutting (FGC), we consider the relative importance of local constituencies versus international normative influence in treating national policies. We find that the occurrence of anti-FGC legislation in countries where many individuals support the procedure, the timing and character of national legal action directed against FGC, and the uniformity of political action all lend weight to the importance of international norms. At the national level, we find (1) reform is often a top-down process in which national laws are developed to change rather than reflect local attitudes, and (2) African states tend to work around local communities by adopting bureaucratic policies to combat FGC (Western countries, in contrast, tend to adopt formal laws). At the international level, our findings suggest (1) the structural position of international actors influences whether they deploy assimilative or coercive reform strategies, (2) contradictions among international ideals limits Western hegemony, and (3) international ideals can simultaneously empower (by offering options) and disempower (by disengaging states from local constituencies) local individuals. Social science literature tends to assume a link between national policies and local civil societies. Although that model may represent Western nations reasonably well, its extension to African nations and other countries in the Southern Hemisphere is often problematic.1 Such analyses miss an important piece of the picture: the international context of national action. Increasingly, calls for democratic process coincide with calls for particular political outcomes, which may go against local majority sentiments. Examining the evolution of laws from power struggles within countries reifies the nation-state and misses larger issues of control in the international system. An examination of the practice and policies of female genital cutting (FGC)2 provides an interesting case to explore the importance of international culture in creating national policies.3 FGC has generated many debates precisely because the issue juxtaposes the ideals of sovereign autonomy and local representation against an international definition of human rights. Due to the resulting moral quandary, national laws relating to the procedure are highly controversial. In this article, we examine why countries adopt anti-FGC legislation. Assuming that laws reflect national culture and material conditions, one might expect female genital cutting to be legally condoned in countries where the practice is prevalent (see Kidder 1984:36-57). Instead, laws in these countries are exclusively directed at banning female genital cutting. Laws banning female genital cutting are also common in countries in which the practice is very rare (the United States, Great Britain, etc.). Rather than viewing each law as the end point of a national political struggle, we consider all anti-FGC laws as part of an international process.4 We elaborate this process, exploring the strategies used by international actors to eradicate female genital cutting. We adopt the perspective that laws are significant because of the transcendent principles outside the means-end relationship for which they stand (see Boyle & Meyer 1998; Gusfield 1963; 1986:166; Burke 1945; see also Fine 1993). Law is a key ingredient in the social construction of reality. For example, African countries' anti-FGC policies bolster the perception of an international consensus to eradicate female genital cutting (cf. Edelman et al. 1999) and are viewed as an invitation by international activists to work within countries to eradicate the practice (see El Dareer 1982:96). In this way, laws have real consequences in fueling eradication efforts, regardless of whether local individuals are actually prosecuted under them. …

Judicial rhetoric, meaning-making, and the institutionalization of hate crime law

Abstract: In this article we examine how the concept of hate crime has been transformed in judicial discourse from a broad ambiguous category, which generated substantial controversy and opposition, to a focused determinate legal construct, which has been largely accepted as a legitimate legal practice. We track changes in judicial rhetoric across 38 appellate court opinions that consider the constitutionality of hate crime cases (1984-1999), and we propose a theoretical framework for analyzing the "settling" of legal meaning. A qualitative interpretive analysis demonstrates that the meaning of hate crime that emerges across the series of cases is much richer and nuanced than the collection of words contained in the statutes, and that the domain of hate crime has expanded across the series of cases to include a broader range of behaviors and mental precursors. Quantitative analysis shows that, over time, judges have developed a more economical and formulaic rhetoric for responding to petitioners' constitutional challenges to hate crime statutes and have converged around sets of arguments for negotiating challenges. We discuss the implications of these findings for traditional jurisprudential analyses, sociolegal research on judicial decisionmaking, and research on the social construction of deviance.

Framing the Field of Law's Disciplinary Encounters: A Historical Narrative

Abstract: In this article I address the historical interrelationship of law and social science. I explore the separation of "law" and "social science" during the later 19th century, examine their relationship over the next 50 years, and finally take up their more elaborate post-World War II interaction, culminating in the birth and development of the law and society movement. The narrative focuses on two realms of encounter, the intellectual and the institutional, or "spatial," and in the latter case on two particular locales-the academy and the state. Histories of the interaction of law and social science have mostly pursued its academic aspect, resulting in a history of encounters expressed primarily as pedagogical disputes. But encounters between law and the social science disciplines are also competitions between distinct languages of state formation. Moments of encounter are moments of rivalry in the state, not simply in the common room. Mostly, I conclude, law wins. Prologue: History's Vision When you believe... that power in law resides in fields of practice, it is important to speak of places and people as well as ideas. -John Brigham, "The Constitution of Interests" To frame a field is to define the space within which the actions that constitute the field occur.1 In this instance, the field is that of the interaction between law and social science, and the framing is historical-ironically so, in that this account of disciplinary interaction is one in which history as a discipline itself hardly features. Both law and the social sciences have by and large rejected historicity when considering explanations (as opposed to exemplifications) of social action. "[T] he models of the social world that have dominated American social science in the twentieth century invite us to look through history to a presumably natural process beneath .... individual behaviors responding to natural stimuli" (Ross 1991:xiii. See also Rothman & Wheeler 1981; Demos 1981, esp. pp. 314-24).2 Here, history's place is on the outside, a narrative of others' encounters rather than a participant. Ironies notwithstanding, the outside has its advantages. A historicized world "is a humanly created one. It is composed of people, institutions, practices, and languages that are created by the circumstances of human experience and sustained by structures of power. History can be used to achieve a critical understanding of historical experience and allows us to change the social structures that shape it" (Ross 1991:xiii). Let us mobilize those advantages in framing this field. By this, I mean let us understand the field as a space of encounter conjured into existence by the activities and practices of its participants, by the locations of those activities, and by the relationships pertaining amongst them, but visible as a "field" only to the observer. Let us also understand that, as a necessary consequence, although this field is the outcome of the actors' activities and practices, intentions and choices, its framing-imperious chronologies of intellectual sequence, imposed linearity-will not necessarily be theirs at all. Indeed, their perceptions, including their perception of their history, may be very different. "The ground is not virgin: it already has a history." Here, "[i]t is not a question of correcting what is already there, of replacing it with a better route. It is a question of interpretation" (Carter 1988:174). Conceived as an interpretive project, framing becomes an exercise in the recovery of the field's spatial as well as its conceptual dimensions.3 The whole is organized by resort to three metaphors-revelation, production, and insufficiency. The first, revelation, is the key to the field's 19th-century configuration, lasting through the 1870s. It is succeeded by production, chosen to invoke law's encounter with the specialized ideologies of investigation and training that held sway for most of the next century, the century of American modernism and industrialism. …

Telling Tales in School: Youth Culture and Conflict Narratives

Abstract: This study departs from mainstream criminology to approach youth conflict and violence from a youth-centered perspective drawn from cultural studies of young people and sociolegal research. To access youth orientations, we analyze experiential stories of peer conflict written by students at a multiethnic, low-income high school situated in an urban core of the western United States. We argue that youth narratives of conflict offer glimpses into how young people make sense of conflict in their everyday lives, as well as insights as to how the images and decisional bases embedded in their storytelling connect to adult-centered discourses found in popular media and formal education. Our analyses identify a range of story types (tales), each marked by a different narrative style, that students fashion as they write about peer conflict: action tales, moral tales, expressive tales, and rational tales. In our study, students wrote a majority of stories in the action-tale narrative style. We propose three alternative explanations for this pattern using class code, moral development, and institutional resistance perspectives. Finally, we discuss the theoretical and policy implications of our work and raise questions for future research

Bureaucratization and Social Control: Historical Foundations of International Police Cooperation

Abstract: I employ a theoretical framework developed on the basis of the writings of Max Weber to analyze historical developments in the formation of international police organizations. I rely on a comparative analysis of selected cases of international police networks and centrally focus on the most famous and enduring of such structures, the International Criminal Police Commission, the forerunner of the organization since 1956 known as Interpol. Using a Weberian perspective of bureaucratization, I maintain that the formation of international police organizations was historically made possible when public police institutions were sufficiently detached from the political centers of their respective states to function autonomously as expert bureaucracies. Under such circumstances of institutional autonomy, police bureaucracies fostered practices of collaboration across the borders of their respective national jurisdictions because and when they were motivated by a professionally defined interest in the fight against international crime. In conclusion to this analysis, I argue for the value of sociological perspectives of social control that are not reductionist, but that instead bring out the specific socially and sociologically significant dimensions of control mechanisms

The structural context of novel rights claims : Southern civil rights organizing, 1961-1966

Abstract: Theorists of Critical Legal Studies (CLS) have argued that the abstract, individualistic, and state-dependent character of rights makes them of dubious value for groups fighting for social change. Southern civil rights organizers in the early 1960s engaged in the kind of power-oriented strategy that CLS writers advocate in lieu of a rights-oriented one. However, the rights claims they made inside and outside courtrooms were essential to their political organizing efforts. Far from narrowing collective aspirations to the limits of the law, activists' extension of rights claims to the "unqualified" legitimated assaults on economic inequality, governmental decisionmaking in poverty programs, and the Vietnam War. What made possible this novel formulation was not only the multivalent character of rights but also key features of the social, political, and organizational contexts within which rights were advanced.

Employment discrimination or sexual violence? Defining sexual harassment in American and French law

Abstract: In this article I examine how and why the term "sexual harassment" has been defined very differently in American and French law. Drawing on political and legal history, I argue that feminists mobilized in both countries to create sexual harassment law, but encountered dissimilar political, legal, and cultural constraints and resources. Having adapted to these distinct opportunities and constraints, feminists and other social actors produced sexual harassment laws that varied by body of law, definition of harm, scope, and remedy. I conclude by discussing the implications of these findings for studies of culture, gender and the state, globalization, and public policy. Introduction The term "sexual harassment," or "harcelement sexuel" in French, has been defined very differently in American and French law. Considering the newness of this term and the fact that it was translated from English into French, one would expect very little cross-national difference in its meaning.1 More generally, there seems to be a trend toward increasing transnational homogeneity, as documented by work that points to a growing "world culture," built upon such central values as universalism, individualism, voluntaristic authority, rational progress, and world citizenship (Boli & Thomas 1997; see also Meyer 1994; Meyer et al. 1991; Strang & Meyer 1994). According to this work, this new value system and the need to placate transnational and domestic women's groups committed to equality now compels states to take action to improve the status and role of women (Berkovitch 1999; Boli & Thomas 1997:186). This literature, which stresses cultural and political convergence, suggests that national differences are waning in importance. Surely, some national differences linger, but the trend, it seems, is toward uniformity. But is it? In the American workplace, explicit pornography coupled with sexist and sexual taunts from co-workers is legally recognized as sexual harassment (Robinson v. Jacksonville Shipyards 1991). According to French law, however, "sexual harassment" can only occur if a person uses his or her position of authority to try to coerce a subordinate into having sexual relations (du nouveau Code Penal, art. 222-33, 1991). In France a sexual harasser could theoretically be sent to jail for his or her behavior, but sexual harassment is not a penal offense in the United States.2 Instead in the United States the harassed employee may sue her or his employer for monetary damages. In other words, American and French sexual harassment laws are extremely different, both in how they define sexual harassment and in what they do about such behavior. At least as far as this one issue is concerned in these two nations, we seem to be witnessing the making of national difference, rather than convergence, in social policy and cultural meaning. This raises questions not only about the extent to which globalization is producing transnational uniformity but also, more generally, about the mechanisms of the law-making process. In this article, I shed light on these questions by exploring in some detail the making of sexual harassment law in the United States and France. A two-country comparison is the most appropriate research design at this exploratory stage. Though the limited sample size dictates caution in drawing generalizations, such in-depth analysis has the potential to reveal a greater level of detail about political and legal processes than do large N studies. The United States and France are good countries to compare since they both have high rates of female employment and independent women's movements, two of the main structural factors thought to foster strong sexual harassment laws (Aeberhard-Hodges 1996:505; Husbands 1992; MacKinnon 1979), yet they have divergent political and legal institutions, which, I predict, will result in distinct approaches to sexual harassment policy.3 In the United States, socialist traditions are extremely weak, but there is a strong political tradition of analyzing inequality in terms of racial (and, later, gender) discrimination. …

Why is the river Rhine cleaner than the Great Lakes (despite looser regulation)

Abstract: In this article, I compare the efforts to protect two transboundary watersheds that are home to some of the largest industrial areas in the world: the Great Lakes basin in North America and the Rhine river in Western Europe. Specifically, I show that the industrial discharges into the Great Lakes have been more toxic than the releases into the Rhine. This is puzzling as the laws and international agreements pertaining to the Great Lakes have been more stringent than those concerning the Rhine. I solve this puzzle in three steps. First, I show that the many voluntary investments in water protection by companies along the Rhine have outdone the considerable efforts that the U.S. laws have required of Great Lakes corporations. Thereafter, I argue that these different inclinations to invest in water protection have sprung from two alternative modes of conducting environmental politics: an adversarial one in the Great Lakes basin and a more consensual one in the Rhine valley. Last, I use an historical-institutional approach to show which institutional differences (at both the domestic and international levels) have led to the emergence of these different modes of conducting environmental politics in the two basins. Introduction In this article, I compare the efforts to restore two fragile watersheds that are home to two of the largest industrial areas in the world. More precisely, I compare the attempts that have been made to keep toxic substances out of the industrial releases into the river Rhine and the Great Lakes. The Rhine flows from the Bodensee in the Alps, through Switzerland, France, and Germany, before scattering all over the Netherlands. Along its shores, some 18% of the world's chemical industry has been located. The 1,320 kilometers-long river connects the world's biggest seaport (Rotterdam) with the largest inland port on the globe (Duisburg). Nearly 50 million people presently live in the Rhine valley (International Commission for the Protection of the Rhine, hereafter ICPR, 1998). The Great Lakes in North America (encompassing Lakes Superior, Michigan, Huron, Erie, and Ontario) and the region surrounding them are also of paramount economic importance. Of the 500 largest industrial companies within the United States, almost half have their headquarters in Great Lakes states (Minnesota, Wisconsin, Illinois, Ohio, Indiana, Michigan, Pennsylvania, and New York). About 33 million people live in the Great Lakes basin (Environment Canada 1995). In sum, both the Rhine valley and the Great Lakes basin form sites where ecological values and huge economic interests come together, and because of this it is interesting to compare environmental protection efforts in these two regions. For methodological reasons that I explain later, my analysis is limited to a comparison between the effluents of the firms that are bordering the Rhine and the releases of the enterprises located on the United States side of the Great Lakes watershed. This comparison produces a remarkable puzzle. Compared to their counterparts on the Rhine watershed, companies on the United States side of the Great Lakes basin have been confronted with: (1) stricter domestic water protection laws; (2) more ambitious international agreements pertaining to water protection; and (3) powerful actors that have relentlessly pushed for water protection, including an influential international organization, a well-organized epistemic community of scientists, and a large number of cooperating and vigorous environmental organizations. These factors would lead one to assume that the effluents of U.S. corporations into the Great Lakes have been less toxic than those of European enterprises into the Rhine. This appears not to be the case, however. Instead, it appears that the opposite has occurred. The primary aim of my article is to unravel this puzzle. I do so by employing an institutional approach. To be more precise, I use the historical version of new institutionalism. …

Conquest by contract : Wealth transfer and land market structure in colonial New Zealand

Abstract: Much of the British empire was acquired by purchase rather than conquest, but indigenous peoples usually acquired little wealth despite extensive land sales. Explanations of where the money went tend to blame either the imprudence of indigenous sellers or the duplicity of British buyers. This article suggests that a focus solely on the conduct of the individuals operating within the land market rests on a poor theoretical understanding of the relationship between law and markets, an understanding that blinds historians to the allocative effects of markets' constitutive rules. Using New Zealand as an example, the article shows how the British modified the structure of the land market over the 19th century, sometimes intentionally and sometimes inadvertently, to transfer wealth from the Maori to themselves

Educating homo economicus: Cautionary notes on the new behavioral law and economics movement

Abstract: Legal scholars have recently been extolling the explanatory potential of behavioral law and economics. This new scholarship seeks to marry insights from traditional microeconomics with findings from the behavioral sciences to produce a descriptively accurate and predictively powerful account of human motivation and decisionmaking to put in the service of legal policy. I examine the claims being made on behalf of this new approach. I argue that legal scholars cannot simply use behavioral science in the place of standard microeconomics. More specifically, I argue that once empirical findings are incorporated into legal policy analysis, it becomes necessary to forsake aspirations of broad generalizability and predictive determinacy. I conclude that legal policies and initiatives need to be informed by a modest conception of social science. Such a conception acknowledges the limitation of social science knowledge and recognizes that strong causal explanations of human behavior cannot be permitted to supplant normative debate. In recent years, legal writers have heralded the advent of a new "behavioral law and economics" scholarly movement. As envisioned, this sweeping approach will marry microeconomic insights with empirical social science findings to yield an integrated sphere of economic and behavioral science serving larger social and legal policies. Fledgling work in this area has something to offer everyone: For law and economics scholars, it conserves an account of human agents as instrumentally rational maximizers. It also maintains explanatory commitments to methodological individualism and mathematical modeling. For legal thinkers with a communitarian bent, this new scholarship recognizes the importance of norms of cooperation in creating and sustaining public goods. It also acknowledges that people are motivated by considerations beyond the pursuit of material ends, such as cultural and social norms. All of a sudden, it is possible to talk about individual preferences and social norms in the same breath, to interweave discussions of efficiency and the expressive function of law. With this newly fused language, theorists of all predilections can converse across political divides while avoiding highly contested and intractable normative issues. Legal scholars have been extolling the explanatory potential of a unified behavioral law and economics approach to address a host of questions. One strand of this scholarship has imported research from behavioral science-behavioral economics and cognitive and social psychology-to explain various aspects of law, including contract law (Korobkin 1998), tax law (McCaffery 1994), and jury decisionmaking (Dolls et al. 1998), among other areas. Scholars pursuing this approach have also not shied from drawing prescriptive suggestions, arguing that government should use the insights of behavioral science to induce people to engage in socially desirable behavior. Such prescriptions have been offered, for example, in the areas of criminal law and health and safety regulation, where scholars have proposed that regulatory authorities take advantage of human cognitive quirks to influence them to act in ways deemed socially optimal (Dolls et al. 1998; Korobkin & Ulen 2000). A second strand of the new scholarship has been preoccupied with social processes and phenomena from within a game theoretic model. Legal scholars working in this vein have sought to expand microeconomic analysis to incorporate the functioning of social norms. This approach has been advanced to explain such widely diverse psychosocial phenomena as the dramatic nationwide shift in smoking norms (Lessig 1995:1025-34), the persistence of race discrimination, despite its inefficiencies (McAdams 1995), recycling by wealthy residents of the Hamptons (Sunstein 1996), inner city gang behavior (Kahan 1997), and sumo wrestling practices in Japan (West 1997). Although distinct from law and behavioral science, the law and social norms scholarship shares the goal of unifying microeconomics and empirical findings. …

Imagining the Law of the father : Loss, dread, and mourning in The Sweet Hereafter

Abstract: This essay takes the theme of the 1999 annual meeting of the Law and Society Association, "The Legal Imagination: Taking on Cultural Studies," as an occasion for trying to promote an engagement between sociological studies and cultural studies. It argues that mass mediated images are as powerful and pervasive as other social forces with which sociological studies is already engaged and that the time has come to move from the study of law on the books and in action to law in the image. This argument is developed by analyzing the significance of the ubiquitous presence of tropes of fatherhood in popular cultural iconography about law. Drawing on psychoanalysis, gender theory, and film studies, this essay presents a close reading of a single film, "The Sweet Hereafter". This film exemplifies the ways in which fatherhood becomes one of the key terms through which law is mythologized and through which fantasies and anxieties about law are expressed. Exploring the imagination of law in and through mass medicated images, like those contained in "The Sweet Hereafter", is an important and engaging new frontier for sociolegal studies.

Consensus and suspicion : Judicial reasoning and social change in an Indonesian Society 1960-1994

Abstract: I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takengen, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges' perceptions of a more individualized society. Between 1960 and 1994, Islamic court judges in the Gayo Highlands of Central Aceh, Indonesia, radically changed the way they judged disputes over family property. Whereas once they had generally upheld local Gayo social norms (adat) about who received family property, by the early 1990s they consistently overruled settlements based on those same norms and redivided property according to Islamic law. From a conservative court that turned down requests to overturn past divisions of farm lands, the religious court became an activist court that routinely overturned such divisions. And yet over this time the relevant substantive law changed very little, and judges recognized that both adat and Islam provided legitimate bases for decisions. Why, then, and based on what reasons, did the court shift its overall stance so markedly? I take this question as my point of departure for exploring the recent social history of judicial reasoning in the Gayo Highlands, drawing on case dossiers, interviews with judges, and field research into the political and economic history of the region. The issues involved are broad ones. Judges everywhere find themselves having to select among competing legally relevant social norms, such as what counts as a contract, or where lie "the best interests of the child."1 Choosing among norms, or, more often, weighing them against each other, usually is shaped by a sense of community standards, by an estimate of how the choice will affect community life, or by policy preferences. Furthermore, this weighing is likely to change along with the social and political context in which judges live and work. Postcolonial societies offer particularly interesting places to study how judges have reasoned in the face of competing norms. Judges in these societies have been finding their interlegal feet amidst a multiplicity of statutes, court decisions, religious doctrines, and colonial-era treatises on "customary law."2 Their public statements on laws and customs often become flash points for national cultural debates. In most societies with large Muslim populations, these debates turn on judgments about the relative legitimacy of secular and religious sources of laws.3 In Indonesia, a multiconfessional state with the world's largest Muslim population, not only have there been extensive public discussions about the validity of claims based on customary norms, Islamic law, stat utes, and judicial decisions, but these discussions also have been part of a process of general, heightened reflection on the proper relation of Islam to national identity. In the Gayo courts judges have paid particular attention to local processes of reaching consensus, and their evaluations of such processes are of significance to broader political discussions in Indonesia. Achieving consensus through deliberation," musyawarah mufakat, a central element in Indonesian ideology, bears some relationship, not yet well understood, to local ways of resolving disputes. …

Thresholds: Sovereignty and the Sacred@@@Homo Sacer: Sovereign Power and Bare Life

Abstract: Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. Stanford: Stanford University Press, 1998. Pp. xii + 199 pages. $45.00 cloth; $16.95 paper. For the first time in history, the possibilities of the social sciences are made known, and at once it becomes possible both to protect life and to authorize a holocaust. -Michel Foucault qtd. in Agamben (1998:3) Sacredness is a line of flight still present in contemporary politics, a line that is as such moving into zones increasingly vast and dark, to the point of ultimately coinciding with the biological life itself of citizens. If today there is no longer any one clear figure of the sacred man, it is perhaps because we are all virtually homines sac7i. -Giorgio Agamben (1998:114-15) Giorgio Agamben's Homo Sacer: Sovereign Power and Bare Life is one of those books that comes along all too infrequently, unsettling conventional answers and inspiring new questions in a range of academic disciplines. We understand that this is a large claim with which to begin, but it is our hope in this essay to show the immense range and depth of Agamben's insights and the implications of these insights for anthropologists, historians, legal theorists, sociologists, and others. Indeed, if the rapid commission of translations of Agamben's works are any indication, our prediction of his increasing theoretical influence would seem already in the process of being fulfilled.1 Our claims for this text are, in fact, matched by Agamben's own ambitious-and apocalyptic-declarations. Homo Sacer began, we are told in a cryptic aside, "as a response to the bloody mystification of a new planetary order"; but soon, "in the urgency of catastrophe," Agamben felt the need to confront and revise "without reserve" a range of terms that are central and seemingly self-evident in the social sciences (p. 12). Amongst the points of critique, the "sacredness" of human life and the paradox of sovereign power are at the forefront. Between them, Agamben hopes to do nothing less than reveal the originary and true nature of the modern political realm. His argument, succinctly summarized in the concluding chapter of the text, is organized around three main points: 1. The original political relation is the ban (the state of exception as zone of indistinction between outside and inside, exclusion and inclusion). 2. The fundamental activity of sovereign power is the production of bare life as originary political element and as threshold of articulation between nature and culture, xoe and bios. 3. Today it is not the city but rather the [concentration] camp that is the fundamental biopolitical paradigm of the West. (p. 181) The precise meaning of these statements will become clearer in the course of our exposition. For now we wish to stress that "bare life" should not be confused with natural life, as bare life is what, in Agamben's view, is produced as the originary (both original and originating) act of sovereignty.2 The production of this bare life thus establishes a relation that defines the political realm and which Agamben calls, following Jean-Luc Nancy (1993), the relation of ban, or abandonment. Bare life is produced in and through this fundamental act of sovereignty in the sense of being included in the political realm precisely by virtue of being excluded. And it is this same bare life, once abandoned by the law at the outskirts of the polis, that has today, according to Agamben, fully entered the polls to the point of rendering outside and inside, life and law, truly indistinguishable from one another. It is in this way that the concentration camp, for Agamben, has become the "fundamental biopolitical paradigm of the West." Our primary purpose in this essay is to trace the intellectual genealogies of each of the three claims outlined by Agamben in his conclusion. Before we turn to this task, however, some initial remarks further clarifying these claims and their relation to one another will be helpful. …

The Shifting Rhetoric of Insurance Denial

Abstract: The focus on actuarial tables and rating systems by state regulators is insufficient to ensure that protected groups are not discriminated against by the insurance industry. The most powerful tool used to exclude unwanted groups from the insurance pool lies in the subjective underwriting guidelines companies utilize, yet the rhetoric surrounding the insurance industry shifts attention away from this area. In this article I focus on the narratives that members of the insurance industry construct to depict certain groups as uninsurable. If we study the stories that inform the creation of actuarial tables and underwriting guidelines, we arrive at a far different perspective on antidiscriminatory regulation than is currently practiced. I. Introduction As recent court cases and academic studies have revealed, discrimination against certain groups by the insurance industry still remains an unfortunate practice (United States v. American Family Mutual Insurance Company [1995]; "Insurer To Revise Its Urban Business," New York Times, 1 Feb. 1997; Treaster 1998). By definition, discrimination occurs when two otherwise identical individuals are treated differently by virtue of a particular characteristic. Paired testing using black and white applicants has revealed that illegal discrimination (i.e., using distinctions based on criteria banned by law) can take many forms, from agents refusing to return customer phone calls, to offering higher prices and weaker policies, to denying outright coverage for members of unwanted groups (Lynch 1997; Smith & Cloud 1997; but see Wissoker, Zimmermann & Galster 1998). Discrimination can also take the more subtle form of the insurance company being slower to handle the claims of ethnic minority claimants than of whites (Baker & McElrath 1997; Chan 1999). Insurance companies desire certain groups more than others as customers, and as a result, those who do not fit the underwriter's vision of the ideal member of society, such as certain racial and ethnic minorities, the poor, gays and lesbians, and people with alternative lifestyles, can have a difficult time obtaining desired coverage. The biggest concern about discriminatory practices for those trying to eradicate them is how difficult they are to detect. Depending on the state, insurance commissions can be grossly under-funded, and in any event they tend to focus almost exclusively on the financial aspects of the industry, such as whether companies have sufficient loss reserves and whether their rates are adequate (Abraham 1995: 99). For most discriminatory practices to be exposed then, the affected group must either register a complaint with the state's insurance commission or file a suit in court. These individuals must somehow first become aware that they are being discriminated against, and this can be difficult to do if they do not understand the underwriting process or if they are unaware that the insurance company categorizes them in a certain manner (Austin 1983; Simon 1988). In fact, they may not even realize that they have been discriminated against at all, since their agents will most likely manage to cover up the effects by placing them in other, less advantageous, programs. Underwriting is the process of determining which applications the company should accept, and for those who are accepted, in which program they belong. The process of risk selection (as underwriting is also known) has two faces, one that is presented to regulators and applicants, and a second that is used by underwriters. I argue that the Janus-like aspect of underwriting is what has allowed a great deal of discrimination to continue for as long as it has. The outward face is one of numbers, statistics, and objectivity. The inward face is that of narratives, character, and subjective judgement. The rhetoric of insurance exclusion-numbers, objectivity, and statistics-form what I call "the myth of the actuary," a powerful rhetorical situation in which decisions appear to be based on objectively determined criteria when they are also largely based on subjective ones. …

Blood justice: courts, conflict, and compensation in Japan, France, and the United States.

Abstract: In the mid-1980s, many blood transfusion recipients and close to half of Japanese, American, and French hemophiliacs realized that they had been infected with HIV-contaminated blood. In this article I argue that the legal conflicts over HIV-tainted blood in those three nations defy conventional comparative claims about courts, conflict, and compensation. I first describe the similar policy responses of France, Japan, and the United States as public health officials came to realize that HIV threatened the safety of the blood supply. I then focus on what happened when infected individuals began to demand redress. I argue that the mobilization around law by plaintiffs, the centrality of the courts in handling conflicts over HIV and blood, and bold, innovative responses by the judiciary were not distinctive characteristics of the American conflict. Instead, law and courts in all three nations were central players in the battles over blood. Most strikingly, in comparison to courts in the United States, those in France and Japan have been significantly more responsive to plaintiffs' claims. When one looks beyond the courts to legal and legislative action more broadly, the United States has been the least accepting of the plethora of demands for recompense

Race, colonialism, and criminal law: Mexicans and the American criminal justice system in territorial New Mexico

Abstract: A striking feature of the historical American criminal justice system has been the exclusion of racial minorities from decision-making positions, such as juror. In this study of criminal justice in a New Mexico county in the late 19th century, however, Mexicans are the vast majority of petit jurors, and frequently they decide the fates of European-American defendants. A regime of racial power-sharing between Mexicans and European-Americans characterized the administration of the criminal justice system. Racial power-sharing served the ends of American colonizers in legitimizing their governance after an initial violent occupation. Perhaps more surprisingly, it also served the ends of both elites and middle status Mexicans, at least some of the time. Criminal law-and, particularly, the jury as an institution-served both the colonizers and the colonized in this context. Introduction Americans today tend to think of the 19th-century West as a time and place in which legal norms played little role in people's daily interactions. The words we use, for instance, "the Wild West," convey our sense that lawlessness-rather than law and order-carried the day. In part, contemporary notions of the western United States are the product of western films of the 1940s and 1950s, which have exerted a powerful influence on the American imagination. The stereotype of western lawlessness is also resonant in popular histories of such western bandits as Billy the Kid. Even historians have tended to view the West as a place in which the formal legal system had little currency. Indeed, some historians have marshaled empirical support for the thesis of western lawlessness, but they have tended to focus on locales without established native populations and historic patterns of institutionalized social control, whether informal or formal. They frequently have overlooked the dispute resolution processes of westerners native to the region, instead focusing their attention on white newcomers to the region. In this study, I question this image of the Wild West by examining criminal justice litigation in San Miguel County, in the New Mexico Territory, during the last quarter of the 19th century. Rather than finding lawlessness, I found a great deal of interest in and activity around criminal law and its application. Most significantly, I found that the native Mexican population participated substantially in the criminal justice system by testifying in Spanish as witnesses, by serving as bailiffs in the courtroom, and by serving as grand and petit jurors. Even more surprisingly, I found that Mexican males frequently sat in judgment over European-American males, who were overrepresented among criminal defendants.1 The evidence I present here-drawn from primary documents, including official case files, other court records, the records of judges and lawyers involved, and contemporary newspapers-suggests that Mexicans' incorporation into the administration of criminal justice in San Miguel County illustrates a tenuous power-sharing arrangement between European-American colonizers and a large segment of the native, colonized population. Much of the answer to what accounts for this fragile power-- sharing regime has to do with New Mexico's status as a colony of the United States. In 1846, the United States declared war against Mexico (Mexican War 1846-1848) and then occupied Mexico's northern territories, in what is today the American Southwest. From 1850 to 1912, New Mexico was a federal territory, an ambiguous political status that suggests both a colonial legacy and an aspiration for territorial annexation.2 The latter was realized when New Mexico became the 47th U.S. state in 1912 (Lamar 1966). The problem for the Americans was not unlike that faced by other 18th- and 19th-century colonizers: How could they transform a hostile, militarized occupation into politically managed governance with consent of the natives? …

The supreme court and the protection of minority rights: An empirical examination of racial discrimination cases

Abstract: This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianismdecisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes. Introduction The assessment of the determinants of U.S. Supreme Court decisionmaking remains an intensely controversial aspect of judicial studies. Advocates of several broad approaches continue to debate which is the principal impetus of outcomes both in general and in specific legal fields.1 My inquiry offers one perspective to help untangle this controversy in the domain of racial discrimination cases in the post-Brown v. Board of Education (1954) period. Although the findings will not end the long-standing debate over what determines decisional outcomes, they do provide a clarified picture of the racial discrimination subfield and a suggestion for studying other specialized areas. My basic approach and specific research design are premised on the assertion that a clear understanding of decisionmaking is obscured by previous studies (both general and particularized) that tend to inflate the influence of majority preferences (thus discrediting institutionalism to an unwarranted extent) and also fail to provide a full account by focusing only on two competing explanations at a time. The strategy for systematically interpreting outcomes in this area rests on two novel tactics. The first tactic is to expand consideration of the potential role played by majority opinion. (I furnish a complete description and justification of this approach later.) This tactic offers an improved test of the majoritarian thesis. The second approach of this inquiry allows for the explication of three potential determinants of decisionsthe rules and structure of the institution itself, majority public preference, and the ideological predilections of the Justices. It thus provides a core comparison of these broad categories rather bluntly defined, as opposed to an exhaustive assessment of all potentially meaningful determinants. Since such a basic measure of outcomes in this field has yet to be undertaken, however, this is a necessary first step. The results of this investigation of constitutional challenges to racial discrimination suggest that even though the Supreme Court is insulated from majority preferences, its decisions are influenced by Justices' ideological leanings. More specifically, although white Americans (who in this area represent the majority, as opposed to the African American minority) are much more amenable to government action designed to end blatantly discriminatory laws and practices (de jure discrimination) than to the eradication of entrenched patterns of inequity (de facto discrimination), this distinction is not reflected in the decision record. Whether a case represents a challenge to de jure or de facto discrimination does not significantly influence its outcome. Furthermore, fluctuations in the general ideological temper of the nation also fail to affect rulings. However, although distancing itself from majority influences, the Court is not consistently protective of minority rights. The ideological composition of the Court displays a significant influence on verdicts; thus, when the Court is relatively more conservative, cases are less likely to be decided in the minority interest. …

After the "Social Meaning Turn": Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy Analysis

Abstract: The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects of society. This alternative theoretical approach has its own important implications for methods of proof and research design, and the essay develops these implications into a four-prong research agenda. Introduction Under the rubric of "norm-focused scholarship" (Kahan & Meares 1998b:806) or norm theory within the "New Chicago School" (Lessig 1998:673, 661), a number of criminal law scholars and policy analysts are focusing attention on the way that law and social norms interact, and on how the interaction regulates human behavior. These scholars contend that certain policing techniques, such as anti-gang loitering ordinances, youth curfews, and order-maintenance policing, are effective because they change the social meaning of practices such as gang membership or juvenile gun possession; and that, by changing social meaning, these policing techniques reduce criminal behavior and encourage obedience to law. They argue, for example, that youth curfews curtail gang activity in part by reducing the perception among juveniles in the inner city that their peers value gang membership (Kahan & Meares 1998b:821). Norm-focused scholarship is intensely practical and political. According to its proponents, it generates "an intensely practical agenda" of law enforcement policies. The scholarship affirmatively promotes these policies as "politically feasible and morally attractive alternatives to the severe punishments that now dominate America's inner-city crime fighting prescriptions" (Kahan & Meares 1998b:806). The writings represent an intervention in contemporary criminal law policy analysis that is motivated as much by political, as by conceptual aims (Kahan & Meares 1998b:806). Norm-focused scholarship has generated heated debate in law reviews (Alschuler & Schulhofer 1998; Cole 1999; Harcourt 1998; Massaro 1990; Posner 1998; Tushnet 1998), interdisciplinary journals (Massaro 1997), and political and cultural forums (Kahan & Meares 1999; Massaro 1998). The Boston Review recently dedicated one of its New Democracy Forums to the political implications of the norm-focused literature, showcasing a heated exchange between supporters such as Tracey Meares, Dan Kahan, Jean Bethke Elshtain, and Wesley Skogan, and critics such as Alan Dershowitz, Carol Steiker, Franklin Zimring, and Margaret Burnham (1999). Tracey Meares and Dan Kahan's recent article in this journal, Law and (Norms oj Order in the Inner City (1998b), is likely to generate similar heated debate. An important question that norm-focused scholarship raises, but that has not yet been the source of much debate, is the implication of the "social meaning turn" for social scientific inquiry. What type of research design and methods of proof do norm-- focused hypotheses call for? Specifically, given the constructivist nature of social meaning, what is the proper way to explore the explanations advanced by norm-focused scholars? This question has become all the more urgent given Kahan and Meares' provocative suggestion in this journal that criminal law policy analysts should approach their work "uninhibited by certain craft norms that sometimes temper social scientists' own willingness to engage in pragmatic policy speculation" (1998b:806-7). In particular, Kahan and Meares suggest that policy analysts should employ a "political confidence standard" that is less rigorous than "the scientific confidence standard that governs in social science" (1998b:807) . …

Slavery as an Interpretive Issue in the Reconstruction Congresses

Abstract: Constitutional scholars have conceptualized Reconstruction debate mainly as a debate over the meaning of the original Constitution. However, Civil War narratives that identified "the problems" with slavery and emplotted the events of slavery politics were a major vehicle by which the Fourteenth Amendment was debated. Dispute over a text (the original Constitution) and dispute over the description of events intertwined. This article elucidates the content of slavery/war narratives and applies them to the domain of constitutional law. Crucial elements of the Northern Democratic war narrative were endorsed by the Supreme Court in the Slaughter-House Cases (1873), even though the Democrats were the legislative losers. Democratic history, grounded on a strong strain of white supremacy extending back to Stephen Douglas, played a crucial role in legitimating the Court's narrow doctrinal interpretations of the Fourteenth Amendment.

Narrowing the gap by widening the conflict : Power politics, symbols of sovereignty, and the American Vietnam War Resisters' Migration to Canada

Abstract: In this article, I consider how a second face or dimension of covert political power was used to deny legal immigration status to Vietnam War military resisters who sought refuge in Canada during the early years of the largest politically motivated migration since the American Revolution. Recently declassified historical records and interviews with former politicians and administrators reveal that the Canadian Immigration Department and its minister misled the public in advancing an official myth about the evolution of this migration. Until successfully exposed by persistent and innovative investigative journalism, the backstage use of political power kept American Vietnam military resisters who were seeking to legally immigrate defensively framed in a symbolic package that defined them as culturally unsuitable. Several thousand American military resisters lived illegally in Canada until conflict about their plight was successfully broadened and transformed into an effective collective grievance and claim under Canadian immigration law. Once the gap between Canadian immigration law and its practice was fully exposed, the conflict about this policy grew rapidly to include a number of cultural elite groups and a master framing of these American servicemen as unexpected symbols of Canadian sovereignty. A fully elaborated explanation of the collective transformation of sociolegal grievances into successful legal claims requires combined attention to the macrolevel interaction of political power and cultural symbolism

Structural Inequalities in the Global Legal System@@@Globalization and Its Discontents: Essays on the New Mobility of People and Money@@@Recharting the Caribbean: Land, Law, and Citizenship in the British Virgin Islands@@@Globalisation, Human Rights, and Labour Law in Pacific Asia

Abstract: Selon l'A., opposer le phenomene de la mondialisation a la politique des etats-nations est un faux probleme. Dans de nombreux domaines, les politiques mondiales ne sont qu'une extension de celles des etats-nations, sur des spheres d'influence et a des rythmes differents, mais reliees principalement a l'Occident, et en particulier aux Etats-Unis. Pour demontrer la distance existant entre les politiques mondiales et les preoccupations du peuple, l'A. examine la condition des immigres, ce qui souleve les questions de citoyennete, de conditions de travail et de droits de l'homme. Dans cette perspective, les relations entre le capitalisme mondial et la normativite en matiere legale sont examinees a travers l'analyse de l'ouvrage de Saskia Sassen Globalization and Its Discontents: Essays on the New Mobility of People and Money. Cette approche est completee par l'ouvrage : Recharting the Carribean : Land, Law and Citizenship in the British Virgin Islands de Bill Maurer. Ces perspectives sont ensuite nuancees par l'analyse de l'ouvrage Globalization, Human Rights, and Labour Law in Pacific Asia d'Anthony Woodiwiss, qui suggere que les normes occidentales devront composer avec d'autres standards culturels

Officers' Rights: Toward a Unified Field Theory of American Constitutional Development

Abstract: The changing rights of legally designated officers provides a comprehensive framework for following American constitutional development over time, in both public and private settings. Rights are defined as judicially enforceable claims on the person or actions of another; development, as enduring change in constitutional provision, structure, and doctrine. It is proposed that constitutional development as a historical process has consisted of a shift in the balance between the rights of officers and the rights of citizens. The framework is demonstrated empirically in connection with the Bill of Rights, federalism, and the separation of powers. Officers' rights is recommended as a method for studying constitutions comparatively and for linking constitutional development to other political events and phenomena like social movements and parties. In the following article I suggest a new way of thinking about American constitutional development. I seek an understanding of the U.S. Constitution over time that is interpretively comprehensive, doctrinally agile, and historically coherent. By interpretively comprehensive, I have in mind provisions expressed in the constitutional text and those unspecified but historically implemented as matters of law. By doctrinally agile, I mean applicable to the twists and seeming anomalies of constitutional decisionmaking as well as to major turning points. By historically coherent, I refer to the full course of constitutional development, within which the framing at Philadelphia represents only a critical episode. The article was completed for publication some months before the unexpected controversy addressed by the United States Supreme Court in Bush v. Gore (2000), and except for this introduction it will remain unchanged. One could not, however, find a clearer illustration of officers' rights in opposition to the rights of citizens than the tangle created by Florida Secretary of State Katherine Harris, local canvassing boards, state legislators, appointed electors, and the judges and Justices at all levels. The presentation as written, including the remarks on the future of judicial power, applies in every significant detail to the circumstances, contending principles, and resolution of that case. The framework proposed builds on a simple design, centered on two familiar concepts. The first concept is office, the formal positions from which governance is conducted in diverse settings; office also implies the existence of non-office, of, so to speak, "mere citizenship." The second concept is rights, defined as the legitimate claims one person may make on the person or actions of another. These concepts are juxtaposed to analytically recreate the project of constitutionalism over time. By way of implementation, I will advance a single hypothesis concerning their interplay: American constitutional development has consisted of a shift in the balance between rights enjoyed by virtue of office and rights enjoyed by virtue of citizenship. This hypothesis involves a crucial change in the way we think about office and rights and their relation to each other. Whereas office is usually understood to entail "powers" rather than rights, the approach here dissolves that distinction into a single array of enforceable claims. Note that a single array does not imply claims of equal force. On the contrary, the intense historical charge of AngloAmerican rights derives from their tenaciously hierarchical ordering. There are several reasons for such an effort. One is a persistent gap between historical-institutionalist studies of constitutional politics, largely empirical in their thrust, and studies in legal history and constitutional law, where the deepest impulses are normative. A second is the attraction of synthesis across institutional arenas, exhibited, for instance, in constitutionally related formal modeling-I am thinking here of work on statutory review and on party history-which, however, through a different theoretical agenda, downplays historical transitions (Ferejohn & Weingast 1992; Aldrich 1995). …

Exploring the Costs of Administrative Legalization: City Expenditures on Legal Services, 1960-1995

Abstract: The institutional environment in both the private and public sector, according to a wide range of observers, is increasingly "legalized": decisionmaking processes and substantive policies are increasingly subject to legal rules and procedural requirements that are enforceable in court. Although there is little dispute that legal liability has expanded in this way, there is great dispute about the effect of these changes, particularly their costs, on public organizations in practice. Some observers argue that legalization has imposed heavy costs, especially financial costs, on organizations; others, for a variety of reasons, argue that these costs are likely to be exaggerated. In this article I suggest that organizational expenditures on legal services are likely to be a valid indicator of certain important elements of the costs of administrative legalization. I present the results of a study of the legal services expenditures of 13 major U.S. cities over a 35-year period. The results indicate that legal services expenditures indeed have increased in many cities, although not as much as some commentators have speculated. Furthermore, there are significant variations in expenditure patterns among the cities, and a number experienced no long-term growth trend in legal services expenditures. It is widely recognized that the organizational environment in the United States has become more and more legalized, in the sense that decisionmaking processes and substantive policies in public organizations are increasingly influenced by legal rules and procedural requirements that are enforceable in the judicial system. As Rosenbloom and O'Leary (1997:v) observe, "In the aggregate, judicial decisions have required broad changes in administrative values, decision making, organization, processes, and policy implementation." Marc Galanter (1992) similarly has observed that life in the United States and several other societies is increasingly subject to legal forms and procedures, influenced by lawyers, and governed by formal regulations. A diverse range of scholars concur (Abzug & Mezias 1993; Edelman 1990, 1992; Friedman 1985; Sutton et al. 1994; Tate & Vallinder 1995; Teubner 1987). Tate (1995:28), for instance, has observed that a key element of "the judicialization of politics" is "the process by which nonjudicial negotiating and decision-making forums come to be dominated by quasi judicial (legalistic) rules and procedures." Similarly, Kagan ( 1991 ) has characterized American administrative processes as dominated by a culture of "adversarial legalism." While there is general agreement that the organizational environment has become increasingly legalized, the effects of legalization on organizations, particularly its costs, are a matter of great debate. Perhaps the most common view is that legalization has imposed increasingly heavy costs on organizations (see, e.g., Howard 1994; Olson 1991, 1997). Although these costs are not limited to monetary expenditures, most proponents of this interpretation posit that the monetary expenses of legalization are great and are indicative of other underlying costs (to organizational efficiency and the like). This view, though widely accepted, is not universally held. A diverse array of scholarship supports an alternative expectation: that we should find no substantial increase in costs, for one (or both) of two very different but not incompatible reasons. One of these reasons, according to some scholars, is that the costs associated with litigation and judicial orders are commonly exaggerated (see Duncombe & Straussman 1994; Eisenberg & Schwab 1987). The other reason that we may find little or no increase in costs is that some public organizations may have succeeded in instituting substantial reforms that have lessened their exposure to large expenses associated with legal liability. Although the question of financial expenditures associated with legalization is highly significant, there has, unfortunately, been very little systematic research on the matter. …

The Political Significance of Legal Ambiguity: The Case of Affirmative Action

Abstract: During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interestgroup politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self justification even as it leaves the ultimate validity of racial preferences open to question. With the exception of the early years of its existence, when no official reporter of judicial decisions existed and no requirements for filing judicial decisions were in place, the Supreme Court has always rendered its major decisions as written opinions (Currie 1981 ) . For students of the Court, the structure and coherence of these written opinions have furnished important indicators of institutional performance. Conventional legal scholars, for example, have typically viewed poorly reasoned opinions as an institutional failure, a sign that members of the Court have not articulated and defended the neutral principles necessary to secure the rule of law (Wechsler 1959; Peretti 1999:11-35). Political scientists, on the other hand, have usually accepted inconsistencies within and between opinions as inevitable institutional outcomes, clear evidence that the Court is a political body driven by the conflicting policy preferences of its members (Segal & Spaeth 1993; Epstein & Knight 1998). In this article, I examine the Supreme Court's affirmative action decisions, a body of opinions shot through with unresolved tensions. I find that this tangled set of cases is not fully explained by either the standard legal or political science approaches. As a result, I argue that the effort to understand the ambiguities of affirmative action requires a different kind of inquiry, focused on the pattern of political ideas that undergird contemporary constitutional adjudication. My argument proceeds in three sections. In the first section, I trace the central tensions in the Court's affirmative action decisions back to University of California Regents v. Bakke ( 1978) . From a conventional political science perspective, the endurance of Bakke's incongruities may be explained in terms of individual judicial preference: for the past 20 years, Justices with the critical votes in affirmative action decisions have been committed to compromise. In turn, from a conventional legal perspective, this judicial preference for compromise may be criticized for its lack of coherent principles: by failing to articulate an unequivocal approach to affirmative action, Bakke and its progeny maximize public uncertainty and foster arbitrary judicial action. I call into question both of these approaches, arguing that each evades the substance of Bakke itself The argument from judicial preference provides reason to expect some kind of affirmative action muddle, but it fails to examine the specific content of the muddle the Court has produced. The appeal to legal principle compounds the problem of evasion by dismissing the conflicting claims the Court has made for the sake of unified principles the Court has failed to endorse. Contrary to these approaches, I argue that the task is to account directly for Bakke's unresolved tensions, to explain their particular content and purpose. In the second section, I consider Cass Sunstein's (1999) recent effort to provide such an explanation. Sunstein situates the Court within a particular political context, interpreting the uncertainties of Bakke's logic against the persistent divisions of the affirmative action debate. …