LSJ 363 Week 2
LSJ 363 Week 2 LSJ 363
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This 8 page Class Notes was uploaded by Nicole Goodfliesh on Sunday April 10, 2016. The Class Notes belongs to LSJ 363 at University of Washington taught by Erin Adam in Spring 2016. Since its upload, it has received 28 views. For similar materials see Law in Society in Law and Legal Studies at University of Washington.
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Date Created: 04/10/16
4/5/2016 WEEK 2: Lecture #3 (Guest Lecturer) Myth of Rights • Legal version of the American Dream • We are all born with rights • We can expect the state to recognize and enforce our rights Principles (key elements) of the Myth of Rights • Organization of government o Constitutional order § Bedrock organizing text for the organization of the American Government o Separation of power • Courts o Make sure the politics take place within the legal principles o Make sure the other political players play according to the rules o Make sure no one oversteps their powers o Determine when there is a conflict between national and state government o Assure that legality prevails o Judges are socialized and trained to be independent, impartial, objective interpreters of the law o Not to make policy, but to make sure the policy makers are playing to the rules o Indirect but important power What is substance of ideology or myth? • Ideas about state legal institutions – Law is separate from and above politics – Constitution ensures order, stability – Legal reasoning > Principled change through orderly procedures (p. 17) – Independent courts enforce constitution on partisan politics – Law > order, justice, impartiality, responsiveness (pyramid/fountain) § Pyramid: Top-‐Down • Alexander Hamilton’s vision of power • Pyramids are solid; they endure • Rigid; image of continuity and sustainability and order over time • Set in stone; lasts forever § Fountain: Bottom-‐Up • Water coming up from below: the people should be the ones who govern • Constitution is dynamic; always changing • Ideas about legally enforced social relations and values – Property is the first goal (Madison, Fed #10) § Society where property ownership is the basic element of social activity § Basis of the new society where people are competing for the ownership of wealth – Equal treatment/rights before the law – Vision of society embedded in the constitution: Individualism, market competition, limited government (all favor property) – Formal legal equality along with social inequality Effect of the Myth of Rights • Myths shape our view of law; express AND hide/distort law’s reality in these ways: o Constitutional rights excluded many people from start, law was not for all o Government often ignores laws/rights o Courts make law, do not just follow law o Courts are political/partisan, not independent o Law reflects/ enforces unequal power o Core constitutional values and rights > social inequality • Law absorbs and contains conflict—realistic, practical, simple, ethical o But discourages/blocks alternatives o Robs its substance • Proceduralism obscures substantive effects, impedes egalitarian reform o Courts/ law are all about procedure • Law legitimizes existing order of things—makes our system seem natural, normal • Law supports hegemony-‐ consent to status quo, trust in law despite pain/injustice it inflicts/supports o System of organization and distribution of power requires a certain amount of consent of the people o Not everyone buys into it in the same way o Faith in law/courts is not uniform across society § Poor people, people of color, low class don’t seem to buy into the story as much as rich and powerful • Trust is fragile, uneven among groups Where does Scheingold stand on the Myth? • Advocates of rights Myth P. 6-‐7 • Radical/ Realist Critics • Law cuts both ways—mostly supports but can contest status quo • Advocates appeal to rights to close gap between myth and reality, to realize promises of rights • Rights are a resource for challenge and change • Litigation alone is not enough—need other political resources and tactics; indirect effects of litigation key Politics of Rights • Term that describes the relationship between political activity and ideology o Politics influences the system o Rights are achieved through political processes • People demanding that the rights under the constitution actually matter and are enforced • Mobilizing to demand that those rights are a reality; to claim rights that are promised under the existing constitutional order • Rights are recognized, enforced and practiced EXAMPLE (POR): Gordon Hirabayashi o Born into a Japanese American Christian Family: small property owners who lived in norther WA and he attended the UW; he wanted to be a history professor o Born in the US—had rights of citizenship but were always contested o Then comes WW2 § Japanese/ Japanese Americans got a curfew where they had to be out of the public by 8pm o One day he was with his friends in the library and it was 8pm and they said he had to go home. He refused to go because he was a citizen but then he was thrown in jail o Then comes Japanese internment in 1942 (removal from WA to live in concentration camps) o Gordon said ‘I’m not going to do it because it is a violation of my basic rights. I have no allegiance to the Japanese government; my family works hard’ but he was still sent to the camps o Went to courts for his rights but they lost o Court ruled that the government has the discretion to do what they want in war time o He became a teacher and a lead advocate of Japanese Americans and their wrongful internment and human rights o “As fine a document as the Constitution is… it is nothing but a scrap of paper if citizens are not willing to defend it.” The US Civil Rights Movement: 3 Angles 1. The Myth of Rights Interpretation a. Southern Racism, segregation was the evil b. Heroic story of Brown v. Board (1954) i. NAACP litigation and lawyers à desegregation ii. Atticus Finch as romantic hero iii. South nationalized, racism ended iv. Lawyers and judges abolished racism > post racial America of legal equality today 4/7/2016 WEEK 2: Lecture #4 Today’s Agenda • Critical Legal Studies Critique • The Politics of Rights • Scheingold: The Trouble with Lawyers (May Need to Finish Next Tuesday) Critical Legal Studies (CLS) Critique CLS & Scheingold (POR) Agreement CLS & Scheingold (POR) Disagreement – The myth of rights hides and distorts law’s – The law is limited to litigation (CLS) relationship to power -‐-‐Look at court cases that try to – The myth of rights discourages alternative, accomplish social change and if they non-‐legal forms of conflict resolution create change, then it is a sign that the law – The procedures of the myth impede social is effective, if they don’t, the law is change ineffective – The myth of rights legitimates social – The myth of rights critique fully inequality explains how the law operates in – The myth supports hegemony society (CLS) – The law and rights are a limited vehicle for accomplishing social change (CLS: Almost Never; Politics: mostly never, but sometimes can-‐ almost never agree you can use the law to bring about social change) – Using the law to accomplish social change results in the further marginalization of minority groups (CLS) Critical Legal Studies Examples • (1) Cheryl Harris and “Whiteness as Property”: – Brown v. Board of Education eliminated explicit racial distinctions (de jure segregation), but left intact “white privilege not mandated by law” (de facto segregation) § De jure: discrimination by law § De facto: when you don’t have an explicit law that you must not do something o Occurs mostly because of prior laws that were deemed unconstitutional § Harris argues that the court has created a false line between de jure and de facto that doesn’t reflect how segregation happens in society • (2) Dean Spade and Normal Life (Critical Queer Theorist) – Anti-‐discrimination laws and hate crime laws do not accomplish social change because they are not redistributive (they do not challenge existing power) § They don’t redistribute property in a way that enables individuals who don’t have access to achieve broader power within society § See who has access to anti discrimination laws and who doesn’t § Use of court is dependent on individual’s income § Discrimination laws are used by the most privileged minority groups o Ones on the outside cannot afford it or have access to the law Class Question • How does litigation figure into the “politics of rights”? § Effective tools as long as you recognize its limitations § People’s movement to advocate for themselves § Something you can use strategically for creating social change, but you cannot depend solely on the law • What about Critical Legal Studies? (use examples) § Not to make a social statement, but on individual cases The U.S. Civil Rights Movement: 3 Angles 1) Myth of rights interpretation A. Civil rights defined by desegregation • The crux of the social change that occurred during the civil rights movement B. Heroic story of Brown v Bd. (decided in 1954) i. NAACP litigation & lawyers the focus 1) Predominant organization pushing litigation leading up Brown v B ii. Atticus Finch as romantic hero iii. South nationalized, racism ended iv. Lawyers and judges abolished racism. Post racial America of legal equality today 1) Lawyers were the heroes; Jim Crow laws 2) CLS approach exposes myth as false A. Courts protected slavery and Jim Crow segregation (Dredd Scott, Plessy v Ferguson, Cases of 1883) • Predominantly protected slavery • Don’t see courts as heroes but courts exist to promote racial hierarchies B. Litigation for change = Hollow Hope (Brown, Milliken v. Bradley) C. Bell (founder of critical race theory within law schools) – “interest convergence”> symbolism • Argues that BvB was instituted by something that was already accepted by the majority of society 1) Cold War influence shaped political context within which BvB was decided 2) Reassured Black Veterans returning from WWII • During WWII, veterans who served abroad experienced a greater degree of equality than those who served at home 3) Segregation barrier to industrialized South D. Promise of economic rights “lost” in litigation for desegregation (Du Bois, Goluboff) E. Mix of resistance and evasion in South F. CR peaceful protest > white violence > turned non-‐southern opinion, pressure for change G. March on Washington > 1964 CR Act, Voting Rights Act – were keys to change H. Courts rolled back civil rights laws in 1980s 3) Civil rights struggles & “politics of rights” A. Courts did defer to white racism on slavery, Jim Crow B. Myth of rights conflicted with reality of racial hierarchy (i.e., Myth of Rights wrong – racial justice not achieved in desegregation cases) C. Long history invoking rights as resource. Black lawyers and labor leaders appealed to world, UN in 1940s = human rights claims D. Brown v. Board of Education had “indirect effects:” language, opportunity, hope, leverage E. Litigation success catalyzed marches, protests, lobbying, national/international attention -‐-‐> power F. Pre-‐Brown grassroots rights mobilization -‐-‐> Brown -‐-‐> southern resistance, violence, peaceful protest -‐-‐> change • The law was involved all the way up to the southern resistance G. Brown -‐-‐> 1964 CRA in “private” economic realm H. Court followed conservative backlash in society and politics in Brown rollback cases of 70s and 80s (sign that rights changes mattered, but rights need to be constantly re-‐won to be sustained) I. Legal mobilization = rights claiming in & beyond court – Legal Mobilization: Process by which individuals make claims about their legal rights and pursue legal and political strategies to defend or develop those rights. This is the deliberate, strategic organizing by rights activists Recent Example: Same-‐Sex Marriage Rights 1. 2010 Gerald Rosenberg: litigating for same-‐sex marriage was “hollow hope” (CLS) 2. 2015…Supreme Ct heralded for endorsing rights of same sex marriage. Court was the “pinnacle of justice” in Obergefell v. Hodges (Myth of Rights) 3. But struggle for LGBTQ rights goes back 100 years – Subculture of male sex workers and “cross dressers,” “public interest in women passing as men” 1881-‐1935 (Eskridge) (Politics of Rights) 4. Further -‐-‐-‐ Protests (Homophile Movement of 1950s/1960s; Stonewall) & Long history of legislation, referenda, initiatives, lawsuits (Politics of Rights) 5. Losing in court/legislature often key to winning (Politics of Rights) 6. Battle won in popular culture decades earlier. Supreme Court just declared the change as final (Politics of Rights) 7. Was a core inclusionary rights issue, but required many types of politics over long time to leverage change (Politics of Rights) 8. “Myth of Rights” would have us believe that Same-‐Sex marriage solved all LGBTQ struggles. Politics of Rights à Hardly the end of LGBT struggles…. The Politics of Rights: Conclusion • Politics of Rights views law as political, but must look beyond law as litigation to other forms & sites of the law – Law/courts are political – part of gov’t, reflect interests and power – Litigating in court achieves little -‐ limited direct & indirect effects – Must resort to other political tactics in other institutional venues • Legal mobilization – politics of rights via litigation and/or other tactics Scheingold: The Trouble with Lawyers 1) Lawyers are final part of analysis – at once representatives of legal system (myth) and advocates for citizen’s claims of right (Lawyer’s World View) A. Lawyer – unreliable “tails that wag dog,” litigation diverts from politics of rights. Ex: SSM cases, Atticus Finch B. Divided loyalty (process and profession vs. people). Scheingold: The Trouble with Lawyers 2) Professional code of responsibility – discourages questioning legal impacts & politics of rights (Basic Law School Skills) A. Legal procedure over ends/impacts B. Legal skills over political skills Scheingold: The Trouble with Lawyers • Whenever you got business trouble, the best thing to do is to get a lawyer. Then you got more trouble, but at least you got a lawyer. o Chico Marx (At the Circus) The Trouble with Lawyers 3) Legal education – “training for hierarchy,” to serve legal and economic system A. Legal analysis skills > thinking “within the game,” rule-‐mongering. Discourages questioning of system. B. Lawyers socialized to think legal ways are best; defer to elite experts C. Debt & intern system discourages advocacy for unrepresented http://thesituationist.wordpress.com/2011/10/31/zimbardos-‐stanford-‐prison-‐and-‐kingsfields-‐ harvard-‐law/ The Trouble with Lawyers 4) Changes in legal education last 25 yrs. A. Far more women – change of values? Law not just abstract, deductive reason. B. Less legalistic, less tied to legal doctrine, to “paper” and text. Critical legal/race studies focus on power. More social science; more clinical. C. Less authoritarian, elitist D. Public interest law training and roles http://www.youtube.com/watch?v=pZIonnMTLUA E. Still…training for hierarchy (corporate, criminal) F. Public interest lawyers – declining interest i. Popular culture – novels, movies i. Erin Brockovich; Runaway Jury: http://www.youtube.com/watch?v=BGX4nMrnxg0 ii. High debt, few jobs > squeezed: http://www.lawschooltransparency.com/reform/projects/Tuition-‐ Tracker/ G. Contemporary “existential crisis” of law schools – old training serves poorly, but what to do in global market for specialized skills? i. Big Firm: Young Attorneys as Paralegals ii. Human Rights – Lawyers not big need
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