LSJ 363 Week 4
LSJ 363 Week 4 LSJ 363
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This 8 page Class Notes was uploaded by Nicole Goodfliesh on Monday April 25, 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 13 views. For similar materials see Law in Society in Law and Legal Studies at University of Washington.
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Date Created: 04/25/16
T 4/19/2016 WEEK 4: Lecture #7 Today’s Agenda Announcement: – Office Hours This Week Only: Tuesday 11 to 12; Thursday 12:30 to 1:30 (Gowen 30) Sally Merry: Rights Talk and the Experience of Law Engel & Tort Cases in Sander County Legal Mobilization: Disputing Studies 5) Disputing studies: Why Do Many Victims “Lump It” (Continued)? D. Individual “social” status viewed as un/deserving, un/trustworthy by legal officials • Ways in which the law system differentiates b/w deserving/non-‐ deserving individuals E. Dependence on wrongdoer—people are reluctant to sue family, spouses, co-‐ workers, employers, gov’t administrators/regulators • Particularly in discrimination cases F. Support network – family, friends, organizations i. Example: Support Structures for social change in Charles Epp’s Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective ii. US Rights Revolution Support Structure = Rights advocacy organizations, sources of funding, the legal profession, and government action • EEOC: used to enforce employment grievances relating to rights revolution wins Legal Mobilization: Zemans, Miller & Sarat • Zemans -‐-‐“Legal mobilization” & Legal Inequality – We all are agents and objects of law, but unequally p. 693: “The legal system can be considered quintessentially democratic, although not necessarily egalitarian if the competence and means to make use of…(law) is not equally distributed.” • • Legal mobilization – formally equal access does not equal actual capacities for rights claiming Legal Mobilization: Sally Merry 6) Rights Talk and Rights Consciousness A. Hilo, Hawaii – postcolonial context i. rule of law > increased violence Sally Merry & Rights Consciousness • What is rights consciousness? – Rights Consciousness = the process through which individuals come to see themselves as “autonomous rights-‐bearing” people who can go to the law to seek redress for rights violations. You can think of this as a kind of “rights awakening.” • By filing a rights claim, you no longer see it as your own individual problem, but as a problem that can be solved for many Legal Mobilization: Sally Merry 6) Sally Merry and Rights Consciousness (Continued) B. Abused women’s assertion of rights > new self, new subjectivity (p. 345-‐49) = Rights-‐Bearing Subject i. Subjectivity: Knowledge/viewpoint enacted from a position or role in a social relationship i. Think of it kind of like an identity because there are some ways in which it can be like an identity, but your ability to adopt it is more contingent than identity is-‐ based on various ways you’re related to society and the legal system ii. Judith Butler on Gender as Performative: http://bigthink.com/videos/your-‐behavior-‐creates-‐your-‐gender ii. Irony: “autonomous rights bearing individual” is a learned social role/performance iii. Agency as subject is constrained, contingent iv. Dependence on abuser is key constraint • Dependent on external networks C. Transformation from wife/mother to rights claimant is “scary,” intimidating D. What happens? Experiences vary E. Rights agency varies with context – support by family, women’s shelters, police, courts F. Claimants must qualify as “good” victims (353-‐4) i. “Good Victim” does not fight back, drink, take drugs, or abuse her children (according to the law) – doing these things can threaten success of legal win in domestic violence cases ii. “Good Victim” requirement may prevent a woman from realizing the “rights bearing individual” subjectivity G. Some women empowered > increased agency and changed relationships (others not so much) i. Experiences in law affect future actions H. Experience of Dora vs. Darlene (pp. 359-‐362) i. How did their experiences vary? 1) Darlene had a negative outcome. Thought the police was a total jerk that did not recognize what she was going through, but when she went to the court, he took it seriously and she was able to see her self as bearing rights. Her abuser saw prison as a summer camp because he was surrounded by people who were there for the same reason. When he came out, nothing improved: although the rights were recognized, the law DID NOT work. ii. How did this impact their ability to see themselves as rights bearing individuals? iii. How did their perceptions of their abuser’s experiences with the law, in addition to their own, affect future actions? I. Responses of men, husbands (to TRO, ATV, jail) i. Sometimes change; mostly resist ii. View claim as betrayal, humiliation iii. Lose rights, autonomy, control; law is alien force of state (like prison) iv. Reverse gender identity (p.375) • Happening through legal system itself J. Relevance of class/wealth status – “good” victim, alternative resources/options K. Implications for (human) rights – implementation support structure matters on the ground i. Individual subjects are not autonomous, free rights claimants, but are dependent and constrained by relational context > reluctant, lump it, might lead to at best mixed outcomes ii. Beyond punitive criminalization as remedy Legal Mobilization… In the Shadows of the Courts • Merry – assertion of rights & mobilization of domestic violence claims by abused women varies with key factors A. Rights consciousness, knowledge, subjectivity (Seeing Oneself as the “Rights Bearing Subject”) B. Positive direct/indirect experiences with law C. Supportive group network D. Responsive state officials (police, judges, jury) Legal Mobilization… In a Coercive Community • Why do Sander County community members generally view personal injury claims with derision (even though they are rarely filed) and approve of more frequently filed contract claims? A. David Engle (legal ethnographer) argues that the answer can be found in how social changes within Sander County impacted the relationship between law and community • Sander County (IL) Then…. A. Farmer/rural community • Everyone in the town knew each other • Social Changes in Sander County Today… A. From small family farms to large, corporate/industrialized farms • Initially entered because residents wanted them to as a result of the changes that were happening in the US • Economic downfall encouraged people to want industrialization B. Large manufacturing plants entered community (initial hope for economic revitalization) …BUT • Increase in blue collar, union workers seen as “foreigners” (Southerners, Union Workers, etc.)-‐ “I think there’s too many commies around” • Outsiders entered the community Legal Mobilization… In a Coercive Community 1) How do citizens deal w/ personal injuries (torts) in Sander Co.? Why do most injured people lump it or settle tort claims? A. Negative perception of personal injury lawsuits – maintained by everyday residents, insurers, and lawyers -‐-‐-‐ by all long-‐time residents of Sander County, at all levels of the legal system (state actors within the county) B. Personal Injury Lawsuit Players (who is involved) = parties to lawsuit, insurance company representatives, and lawyers 2) Does everyone avoid tort/injury claims? Insiders vs. outsiders, what markers matter? ii. Sander County Social Value System (Factors Influencing Informal Agreements Over Claims) • Self Sufficiency Individualism (Victim is partially responsible for injury for failing to exercise caution) o Would be unfair to blame others for something you could’ve been more careful to not get hurt • Money comes from hard work not “quick buck” lawsuits • Close social ties (lack of social distance) o Know everyone in the community o Who is considered insider and outsider • Result = Avoiding suit is “realistic” and “level headed” Th 4/21/2016 WEEK 4: Lecture #8 Today’s Agenda Complete David Engle’s “Oven Bird’s Song” Legal Mobilization/Avoidance in the National Community – Tort Reform Politics – Evidence and Reporting on Tort Reform – Example: The McDonald’s Coffee Case Legal Mobilization… In a Coercive Community C. Does everyone avoid tort/injury claims? Insiders vs. outsiders, what markers matter? ii. Characteristics of Those Who Do File Claims 1. Insiders vs. Outsiders – Union Workers, People of Color, Social Outcasts = “foreign element”/Outsiders; Long-‐time residents = insiders 2. Social Distance maintains insider vs. outsider relationship between 2 groups • Insiders: There when the community was small, rural farm • Outsiders: Blue collar union workers; southerners D. What is relation of law and community? Who enforces community values? What is the role of official law in this setting? i. Legal “avoidance” enforces community 1. Legal avoidance solidifies “outsider” status (justifies labeling union workers and others “outsiders”/foreigners) ii. Courts -‐-‐ site of contests over membership 1. Law constructs subjects/subjectivities iii. Who enforces avoidance? 1. External pressure à internalized iv. What is “community”? (Fantasy p. 580-‐81) i. “the outcry against personal injury litigation was part of a broader effort by some residents of Sander County to exclude from their moral universe what they could not exclude from the physical boundaries of their community and to recall and reaffirm an untainted world that existed nowhere but in their imaginations.” v. Allegory (p. 573) – need “foreign element” i. Insiders wouldn’t be “insiders” if it weren’t for the people who come from the outside ii. Outsiders helped the economy E. Two types of “Individualism” i. Self reliance (promotes community) i. Legal avoidance ii. Rights claiming (undermines community) i. Going to court F. What do we know about outsiders? i. Why might they “use” law? – Because they don’t have the insider community ties necessary to resolve disputes out of court ii. Paradox – they need law, but use of law reinforces their outsider status iii. “Outsider” = multiple meanings, local 1. myth of rights abuser vs. actual 2. practice of low rights claiming G. Engel: Community pressures against rights mobilization i. What of justice, of rights to remedy, of inclusionary legal promise? ii. Are all persons equal under law? iii. Rights – vary w/ image of deserving community member 1. Zemans’ ideal thwarted by all “Lump it” factors 2. Merry’s 4 factors for “rights consciousness” 3. Engel how insider vs. outsider status informs the relationship between law and community -‐-‐-‐-‐ Communityà inequality for outsiders & insiders Legal Mobilization… In a Coercive Community • Contract grievances & disputes – How different in practice? Why? • Unlike personal injury suits, contract disputes were supported in Sander County – Explanations: • Moral logic of individualism supports looking at contract suits with favorability • Power differentials Legal Mobilization/Avoidance in the National Community • Engel: anti-‐litigiousness is confined to small communities in transition about loss of past • McCann & Haltom: was a national phenomenon in 1970s-‐2000s • Health care costs rise for a lot of reasons... And some of the costs are necessary. But there are some costs that are unnecessary as far as I'm concerned. And the problem of those unnecessary costs don't start in the waiting room, or the operating room, they're in the courtroom. (Applause.) We're a litigious society; everybody is suing, it seems like. There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit. (Applause.) • -‐-‐-‐-‐ George W. Bush, Scranton, PA, 2003 Legal Mobilization/Avoidance in the National Community 2) "Tort Reform" Politics 1980s, pushed by Big Business A. Allegations -‐ too many lawyers, claims, lawsuits, wins, costs, rights B. Reform proposals i. Cap punitive damage ii. Losers should pay (deterrent) iii. Cap on non-‐economic injuries iv. Federal over state standards 2) Empirical social scientists find little evidence of increase in personal injury litigation or epidemic of lawsuits Disputing Pyramids for Tort Disputes and Civil Disputes in General Settlements, Withdrawals, Removals, Trials, Reductions in Awards, Retrials, Appeals Disputes Filed in CourTortr Disputes (1000)r Resort to Resort to Lawyers in Lawyers Disputes in Disputest General (116 per (103 per 1000) Civil 1000) Tort Disputes Disputes Only (449 per 1000) (201 per 1000) Tort Generallaims in ClOnly (718 per 1000) (857 per 1000) For Every 1000 Tort Grievances For Every 1000 Civil Grievances in General 3) Reformers have little evidence, rely on anecdotes (tort tales) that tap “common sense” folklore A. Print ads, testimony, lobbying – Instrumental reform advocacy i. Trying to push a particular item through congress or state legislator B. Focus on failure of personal responsibility, greed C. Mirrored in popular culture (demeaning lawyers) i. Lawyer jokes and cartoons ii. Saturation of TV/movies/books stories of lawyers, trials, litigants iii. Infotainment: "Trouble w/ Lawyers" (John Stossel) 4) (Reports exaggerate/distort actual practice) A. Products Liability cases -‐-‐ 90% of what is reported; 4% of actual tort cases B. Wins by plaintiffs -‐-‐ actual wins 35%; news > over 80% C. Large monetary awards -‐-‐ 80% of articles about awards over median (dollars holler) D. Critics -‐-‐ 2:1 cited over defenders of system E. Complaints about cost, greed (70%) 5) MacDonald’s Coffee Case: Real Injuryà Tort Tale A. The Hot Coffee case video – heroic trial lawyer counter-‐version B. What the video gets right – facts of the case; corporate campaign to deform tort law, discourage plaintiffs, ridicule of lawyers C. Beyond the video i. Miss role of the media & individual responsibility ideology ii. Video is Pro trial attorney but Trial lawyers part of the problem iii. Tort system is inaccessible, inefficient iv. Comparative legal studyà US lacks consumer regulation, health care • 3 Types of systems governments enact to deal with health emergencies = government regulation of industry, nationalized health care, and a robust tort system • Video misses biggest issue -‐-‐-‐-‐ American tort system is a poor substitute for nationalized healthcare 6) Anecdotal, cartoon knowledge of law à practice A. Politics/policy -‐-‐ what is/not reformed B. Legal knowledge (anti-‐rights) that we act on Individual Responsibility Ethos I D Instrumental E Institutional Reform Groups O Media Stories L O G Y (Jokes, Cartoons, Entertainment) Mass Jurors, Policy Public Judges Makers
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