CLJ 200; Week Seven Notes
CLJ 200; Week Seven Notes CLJ 200
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This 19 page Class Notes was uploaded by Katie on Sunday February 28, 2016. The Class Notes belongs to CLJ 200 at University of Illinois at Chicago taught by Professor Greg Matoesian in Spring 2016. Since its upload, it has received 22 views. For similar materials see Law And Society in Criminology and Criminal Justice at University of Illinois at Chicago.
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Date Created: 02/28/16
v Law and Social change v To what degree and under what conditions can court decisions produce change? v What are the constraints that operate on them? v What factors are important and why? v Alexander Hamilton v Courts lack either the “sword or the purse” o -Systematic Genocide v Can the courts deliver the goods? v What goods? v Participation in the political process v Freedom of Speech v Equal and nondiscriminatory treatment of all folks v Opportunity to lead a satisfactory and rewarding life etc v So the question is: v When can the courts produce change? Under what conditions? v Don’t think just about winning court cases! v Too limited! v Think about this: What are the effects of court decisions! v Law & Social Change v Law is an IV v Law is a DV v Society is a DV v Society is an IV v Both mutually elaborate one another v During Early 20 Century legislative policies in Western Societies mushroomed to unprecedented levels. Can only happen with a powerful state. v Use law to plan economic change, promote peaceful revolutions in social change like anti- discrimination legislation and shape attitudes v Law plays a greater role in social change in modern than in traditional societies v Social Change: when social structures change a la Marx, Weber and Durkheim v Social Change can be incremental (tobacco), comprehensive (minorities/women) or revolutionary (Russia etc) v Basically we’re talking about rights and opportunities, liberties, income and wealth, participation in the political process, freedom of speech, equal and nondiscriminatory treatment of all folks – contributions to political and social change bring these benefits to folks formerly deprived of them. v Impact of social change on law or society as IV and law as DV v Automobile, computer, terrorism, spam, internet, cyberbullying, etc v Impact of law on society or law as the IV and society as the DV v Legal concepts of property/contract, prohibition, Brown v Board, Miranda, defendant’s right to legal representation v Reciprocity between Law and Society (most accurate) v Prohibition: caused the use of booze to decline; but decline started prior to legislation because of a number of social factors. v Both law and society have an elective affinity (remember Weber?). v Limits of Effective Legal Action. Law’s capacity to mould society is limited v A. Law can’t control attitudes only observable behavior. Distinction between law and morality v B. State needs external machinery to put law in motion. If law can’t be enforced no way to influence behavior v C. Problems in fact finding. Law is ambiguous. v Eg. Rape v sex; repressed memory; sexual harassment; mental injury; assisted suicide; injury to feelings. v Low degree of clarity in these cases v Law has pathological effects; bureaucratization of social relations and moral environment. Creates disruption in contexts previously regulated by extra legal norms. v Can you make people good through law? v Think about crimes without victims: gambling, drugs, alcohol, prostitution etc v Certain laws here may just be symbolic with no realistic consideration of effective enforcement. That is, there’s no serious intent of producing significant social change v Instead object is likely to be that of placating opposed interests of various sections of society while avoiding change (gun control?) v Limitation of law and social change studies v Much of this research is prescriptive not theoretical; doesn’t examine the law as an institution (Raymond Nimmer). Just assumes variables correlate (rape reform as we’ll see after race) v Aspirations about law that are characteristic of liberal progressive era. More optimistic time v The stress on law’s capacity to promote change tends to divert attention from the extent to which it prevents change, which we’ll turn to in a second - “Should” Perspective v Example of Law and Social Change v Voting Rights Act of 1965 v Civil Rights Act of 1964 v Resistance to Legal Changes: Social Factors, Vested Interests, Social Class, Organized opposition. v I’ll use a few concrete cases to pose some very complex questions: To what degree and under what conditions can legal processes generate sociopolitical changes? What are the constraints? What factors are important and why? How effective is the law/courts in producing significant social reform like increasing racial integration and reducing discrimination against women, esp in the area of sexual violence? v Keep in mind that we’re not talking about the determinants of winning a case v But on the effects of the court’s decisions. v Important distinction to understand! v Voting Rights v Civil rights law: most important site for studying impact of legal policy on society. v Why? - Social change, the law plays a role in social change, a good example of social change. Automobiles. Education, race, relations, housing v A. race and gender inequalities about as deeply ingrained and institutionalized as any social problem can get. They influence our networks of social interaction, structure of our neighborhoods, schools we attend, occupational choice etc. v B. civil right movement itself represents broadest and most sustained attempt to solve a social problem through law. What began as essentialy an AA movement concerned with remedying long term effects of slavery/segregation broadened its base to include all sorts of inequities: ethnic minorities, women, handicapped, homosexuality, etc. Became a generic campaign against inequality v Modern Civil Rights Movement v Didn’t last long 1954 Montgomery AL bus boycott to 1968 and MLK’s assassination. Most of the legal changes occurred in 1960s v But it didn’t come out of anywhere v 13 A to the Constit: outlawed Slavery v 14 : guaranteed all Americans right to due process and equal protection under law v 15 : guaranteed universal right to vote v 1875 Civil Rights Act: outlawed discrimination in public accomodations v All this legislation was not motivation by benevolence toward blacks but to punish confederate states (important point!) v What happened? v Legislation not just ignored but gradually reversed v Plessy v Ferguson 1896 “Separate but Equal (test question) v Voting Rights v Does it treat discrimination as an act of one individual against another? v Or as a structural/collective social problem (test q) v Big difference, one based on opportunity, the other on subjectivity. (formal legal rationality) v Enforcement v Is enforcement in hands of courts? (tq) v Or committed executive branch? (tq) v Most fundamental right in Democratic society is right of political participation. v 1867: former confederate states must enact guarantee of universal male sufferage. th v 14 A: prohibited voting discrim on basis of race or color etc - Roy Wilkins, if pres. Fought for the rights, we would all be speaking German by now. v But by 1947: only 12% of voting age blacks in 11 Southern States registered to vote v In Mississ less than 1% (compared to 80% in 1980) v How did Southern officials subvert such a basic Constitutional mandate? Fascinating Law and Soc issue. Go back to my discussion of the law as an enablement v constraint. - What keeps a large percentage of black individuals from voting. Test Question Wave voting requirements for people who have voted at an earlier date; Granfather clauses (Test Question) v 1. Primaries v 2. Poll Taxes v 3. Literacy Tests v 4. Grandfather Clause v 5. Gerrymandering v (All the above tq) v 1950s v End of reconstruction – 1950 Southern Dems held balance of power in Congress. v Blocked Civil Rights Legislation v 1957 Voting Rights Law: Significant symbolically but not much of a legal device. v Why? Formal Legal Rationality v 1960s v 1960 Voting Rights Act. Starts to become a collective/structural issue v Why? Authorized Justice Dept to file suit on behalf of an entire county not just individually named plaintiff. Sue the state not just local registrars. Easier to mobilize law v But still required Feds to prove “a pattern and practice” of voter discrimination. Hard to do. v cont v 1965 Voting Rights Act (tq) v Previous measures didn’t work v LBJ wants to carve name for himself in history books. v Changed rules of the game. - Which president was instrumental in civil rights legislation, it was LBJ v cont v 1. In place of intent standard (formal legal rationality; think about McKlesky v Kemp), created a clear presumptive standard of discrimination. (tq) Based on demographic evidence/data. That is, if less than half of eligible voters registered as of Nov 1, 1964 and voting requirements required x, y and z. those restrictions automatically illegal. With this provision, most important mechanism of voter discrim wiped out. v cont v 2. Prohibited any changes in voting statutes without “preclearance” (tq) from Feds. This created enforcement muscle. v This strict liability standard changed the rules of the game (substantive rationality). Attorney General of the U.S. has authority to redress discrim and took mechanics of voting process out of hands of local officials. v Dramatic change v Summary v 1965 VRA not perfect but did succeed in forcing whites to share political power against their will (remember our def of power)? v 3 crucial points to remember (tq) v 1. Right to vote not contingent v 2. strict standard of liability v 3. placed enforcement responsibility in hands of a committed executive branch; gave it right to intervene on basis of presumptive evidence of discrimination - Major issue with voting, It is not contingent 1965 voting act, get rid of contempt; formal legal rationale. v Desegregated Schools v Educ not a fundamental right in dem society but nearly so. Strong connection between democracy and educ is quite explicit in American political discourse; education produces moral and rational citizens and thus empowers the individual and improves the quality of life. v Plessy v Ferg v 11 Southern States and border states/DC forbade integrated schooling by law (tq) v So similar to the right to vote, school segregation was (and is) significant in the sense that Blacks were not Amer citizens in full sense of the term v Brown v Board v Read Encyclopedia entry v 1954 v 2 issues v 1. Segregated schools violated black students 14 A right to equal protection. v 2. in 1955 court ordered all districts to eliminate dual school systems with “all deliberate speed.” (tq) v Brown v But in the 10 Southern States 10 years after Brown less than 1% of Black children went to school with whites. Why so ineffective? v Yep. You guessed it: Formal legal rationality (see how valuable Weber is) v Strom Thurmond? “as long as we can legislate, we can segregate”. v Brown cont v Eisenhower didn’t support legislation v Kennedys were no better (check out the tape of Pres Kennedy and Ross Barnett conversation over the James Meredith case down in MS. v Brown cont v 1964 Civil Rights Act (tq) v LBJ (tq) v 1. authorized attorney general to file suit on behalf of individuals. Redefined school seg as collective wrong instead of an individual one. v 2. Authorized cut-off of Fed funds to school districts found to discriminate v Opened the door to the strict liability standard v Brown cont v 1966 Feds issued standards based on % of black students that had moved out of segregated schools (strict liability standard) (tq) v School districts have a choice: sign up with the Feds for desegregation plans (and big money) or register with the Justice Department of the U.S. to get sued. v By 1970 Southern States more integrated than Border and Northern states. 1972 93% of black students attended schools w/whites. v Summary v Desegregation of Southern Schools one of the most stunningly successful accomplishments of legal change and public policy v Summary cont v But more to it than that. Segregation in North and West more complicated than in South v South segregated by law v North/West segregated by residential patterns v Sum: voting rights and school desegregation v Important issues for law and social change. v How are disputes framed in law? v Formal law and substantive law. Does the law treat discrimination as the act of 1 person toward another or as a collective issue? (tq) v Is it a complicated or simple issue? (tq) Voting rights simple; school desegregation complex, contingent on host of other variables. v Miscegenation Law v 1860 term that symbolized in law the belief that interracial marriage was unnatural (tq) v Demonstrates how for 100 years or so miscegenation was unnatural and a taken for granted basis of American law and policy. v Demonstrates how the law reaches into romance and so-called individual choice. v Demonstrates how the law naturalizes some social relationships and stigmatize others. v Prohibited marriage between not just whites and blacks but American Indians, native Hawaiians, Chinese, Japanese, Filipinos, Koreans etc v During the period of miscegenation law channeled property, personal choice, and legitimate procreation into one specific kind of monogamous marital pair: sameness of race v As a result, interracial couples were deprived on the protection of the 14 Amendment to the U.S. Constitution (Equal Protection of the Laws). (tq) v Turned local marriage license clerks into the gatekeepers of white supremacy. v Shows the power of law in shaping our identities and producing race v Miscegenation rested on 3 fictions v A. Constitutional Fiction (like we discussed in Plessy). Laws punishing both partners in an interracial relationship were racially equal rather than racially discriminatory. v Supreme Court said that miscegenation law did not discriminate because it applies to all persons. (tq) v B. Second fiction: scientific. Racial “purity” should be protected. Supreme court and state courts wanted to join the scientific with the Constitutional. Served legitimation purposes. v C. Third fiction: race actually existed. Race is something that could be measured, determined and gotten to the truth of. Mark Twain and P. Wilson. Might seem funny but that was the reality. ¼ American Indian etc. v So miscegenation law was a kind of legal factory for the defining, production and reproduction of racial categories of the state. These categories were then applied in court cases, in which the results often hinged on the determination of an individual’s race. v While the miscegenation laws were suppose to apply equally to gender (here notice how these incorporate legal relevance of gender too), the law and judges had one particular race and gender pair in mind when enforcing the law: white women. v When the race and gender pair included white men the story was different. v Supreme Court: Loving v Virginia 1967 v Lovings (White Male/Black female) went to DC to get married but lived in Virginia. Police busted in their home in 1963, hoping to find them having sex too (2 crimes rather than one). Mildred pointed to their marriage license that the police used as evidence of their crime. Supreme Court ruled miscegenation unconstitutional in 1967 decision. (tq) v One by one state legislatures repealed miscegenation laws. Delaware was the last state in 1986. v Just to step back a bit, back in 65 48% of white Americans approved of the laws, while 46% disapproved. But in the South 75% of whites approved of miscegenation laws. v By 2005 76% of whites approved of interracial marriages and 80% of blacks approved. v Significant changes in attitudes v Why is Loving Important today? v Used to end other forms of discrimination involving race and sex. v Loving used in almost all cases dealing with the rights of same-sex couples to marry (tq) v In early 70s, same logic used in these cases as in miscegenation: unnatural or applied equally to male-male and female-female pairs. v Hawaii first state in 1993 to use Loving to end same sex discrimination. v Since then all the states that have found same sex discrimination unconstitutional have used Loving. th v Misceg -Clear violstion of the 14 amendment v Brown vs. board did not end real seg. In the South v School de-seg In the north is complex v Seg was legal and mandated by law v Loving (conclusion) v Powerful weapon in the fight for racial justice in the U.S. v For liberal proponents of colorblindness there was no more powerful symbolic moment than the overturning of miscegenation laws. v But sting in the tail (as usual): Loving is also being used to kill affirmative action programs. Picked up on by conservatives as well. (tq) v Between 67-2005 U.S Supreme court cited Loving as a precedent in close to 400 cases! Judicial legacy of this important case and one that shows how sociolegal changes have enduring relevance for understanding the field of law and society. v Fun law and soc exercise v Does Loving apply to SSM? Are there similarities in discrimination? v Mildred Loving stated that they were the same before she died. v Freedom to marry a person of one’s choice under 14 A. th v Mass 2003 used Loving to legalize same sex marriage (so did CA and HA before they were overturned and banned) v Why should marriage be limited to heterosexuals? Should we place the burden of explaining this on opponents of SSM? v OK. Marriage is necessary for procreation? But having children is required of heterosexuals or keeping 2 70 year olds from getting married? v Does SSM “contaminate the sanctity of heterosexual marriage? v State lets convicted murderers, rapists, terrorists, child sexual offenders etc get married in prison – as long as they get married to someone of the opposite sex. v State lets alcoholics, dope addicts, wife beaters etc get married – as long as they get married to someone of the opposite sex. v Does Kim Kar contaminate the respectability of marriage? v Or maybe some deity only wants heterosexuals to marry? That was the argument used in miscegenation laws: that God wanted the races separate. Of course when that didn’t work and discrimination was uncovered the response was: well the law doesn’t discriminate because a white will get 1-4 years in Virginia just like a Black will. In Loving the SC ruled that the original intention of misceg laws was discrimination v Perhaps that’s where we’re at with SSM? v Of course opponents claim that you can’t compare the suffering of racial minorities with gays or racism with homophobia etc? But what criteria determines this and who decides? v 2008 CA SC decided SSM unconstitutional and prop 8 defined marriage as: heterosexual. v So is there any rational argument or public interest stake in continuing to ban SSM? Or will the state and society come to accept SSM as they have interracial marriages? v PS by the way the raising the child issue doesn’t work for opponents either. There’s no evidence that kids do better in one rather than the other. It depends on the quality of the relationship. v Does SSM threaten the state’s ability to protect and defend traditional marriage? v If society really wants to defend traditional marriage maybe it could: have family and medical leave with pay; drug and alcohol counseling on demand; strengthen laws against domestic violence; employment and medical care for marital partners and tighter support of child support. That would really strengthen the institution. SSM doesn’t weaken it. v SSM and sociolegal change v Baehr v Lewin v Linda Baehr filed a lawsuit against Lewin v Director of Hawaii Dept of Health v (in charge of marriage licenses) v Proponents of SSM used litigation as a strategy to win right for marriage v Since this is ongoing hard to make definitive claims (but fun to examine in class) v Baehr first major victory for SSM v Many folks thought this was a major victory for proponents of SSM v 1993 Baehr major symbolic import v Inclusion in civil institution of marriage would signal acceptance into mainstream society v Discrimination unconstitutional in HAWAII v But translating winning a court case into change is another issue v What happened? v Mormon Church, Christian Coalition, Family Forum, Hare Krisnas, Catholic Church etc v Organized massive and well funded support for legislative Amendment v SSM lost 70% to 30%. No contest. v Baker v Vermont v Vermont proposed “domestic partnerships” in which SS couples would get a type of alternative partnership with all the rights of law of married partners but didn’t use the term “marriage’ v Vermont passed bill allowing SS partnerships v Vermont allowed SS civil unions with all the legal benefits of marriage v Didn’t generate the legislative “backlash” that we saw in Haw v MASS 2003 Goodridge legalized SSM v Keep in mind that MA one of the most liberal states in country (now 9 states legalized SSM) v Only state to go for McGovern in 1972 v In Baehr (and CA too) litigation success in SSM stimulated mass political mobilization of conservative groups to erase legal gains v These groups are well funded and well organized v EG Oregon Family Council gathered 244,000 signatures in 5 weeks! Largest ever in the state v 1995-2004 39 states enacted DOMA v 1996 Fed DOMA passed House 342-67 and Senate 85-14 v SS couples denied any federal benefits that come with marriage v Litigation and SSM did not succeed (as of yet) v Major result of litigation strategy? Created legal and constitutional barriers. Major backlash v Even in CA courts legalized SSM (in 2008 with In re Marriage Cases). Ended due to passage of proposition 8 to the CA Constitution (but still in hands of U.S. Supreme Court). v Support for civil unions however v Even President Bush gave OK to that v But doesn’t this leave proponents of SSM with second rate status? Why civil unions? v Important point throughout this course: we’re not just talking about the rhetoric of rights but the reality of that little bitty thing we call “power”. v Lesson: when we rely totally on the courts without public and political support we may well fail to achieve significant social changes in the law. v One final lesson: this may waste crucial resources. And often groups just don’t have that type of money to throw away v In such cases, symbolic victories may be seen as substantive ones a la Brown v “lure” of litigation means that other strategies are ignored such as boycotts, attempts to change public opinion, mobilizing support from mainstream groups, forming coalitions with other oppressed minorities etc v All this political mobilization may not be glamorous but it can be invaluable when it comes to sociolegal change v Let’s look at one more example before moving on to courts. Sexual assault legislation. v Reading in Law and Society Review 1995 v Karen Tracy v Social Change in the Marriage Equality Debate v Identity (remember our discussion?) v Identities of judges, attorneys etc in state and federal courts. In state and fed legislatures. v 2013 U.S. Supreme Court declares the federal government’s DOMA unconstitutiona. v 2015 Obergefell v Hodges gave same sex couples the right to marry v What changed in the span of just a few decades? v How did it get to the top of the political agenda? v 2004-2013 % of Republicans seeing the legalization of SSM rose from 47% to 73% v About the same as for white evangelical Protestants v Go back to 1966 in TIME Magazine v “pernicious sickness” v 1921 all states had add certain types of sexual acts as criminal v Close to 1000 forced sterilizations! v DSM homosexuality defined as a “sociopathic v personality disorder” 1950 to 1987! v 1987 National opinion research center 82% of Americans viewed homosexual relations as “always wrong” v Oral arguments in courts rarely if ever used the term “gay”. Instead they used the term “homosexual” v Courts identified individuals who had engaged in a particular kind of sexual conduct rather than a category of persons v By 2003 reference began as “gays” or “lesbians” and a type of person came to the fore. v By the 21 Century gay persons in appellate discourse had become a legitimate and nameable category of citizen. v Espousing democracy and respecting the will of the people was a way to cloth negative sentiments toward gays and lesbians in positive values (remember our discussion of power and how debates are framed in the law). v Other aspect of democracy: respect the rights of disenfranchised minorities v Between 2003 and 2013 American Society changed in courts and legislative hearings: v Identities in public discourse v Before this homosexuality treated as a matter of conduct or a lifestyle choice that could be criticized etc. v During this time we see the emergence of a discourse of personhood (that replaces sexual orientation talk) v Obergefell v Hodges 2015 v Does the 14 A require a state to license same sex? th v Does the 14 A require a state fo recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state? v April 2015. 60 -70% of All Americans favored legalizing SSM v In the two and one half hours of oral argument the label “homosexual” was never used. v Social change that seemed improbable just 10 years or so earlier was now law of the land. v Kennedy: Opinion Majority: Constitution has a commitment of liberty for all, that includes specific rights that allow persons to define and express their identity” v Sexual Assault v How Much? v Diane Russell 44% of all women over the course of a lifetime (attempted and completed) v Mary Kay Koss 27.5% v Massive underreporting (which is why you use victimization surveys rather than the UCR) v Explanations? v Psychopathological Model: More or less random act committed by some lunatic fringe of the male population v These males have mental illness, aggressive tendencies, uncontrollable sexual impulses etc v They have a “disease” v Soc Explanations v Psychopathological Model does not explain why women in some societies are the target of so much uniquely male “disease” v How could all these sexual assaults be perpetrated by such a tiny segment of the male population? v Too much “disease” v If you go back to the Russell and Koss figures think about these findings also v 12% of women experience sexual coercion v 14.4 % experience some unwanted sexual contact v 42% of women experience sexual harrassment v 38% of girls sexually abused v If rape were some random act we would expect that the primary culprits would be strangers v But this is not the case v 84% know attackers v 57% occur on dates v Less than 5% of rapists have been diagnosed as suffering from mental illness v Conclusion they draw? v Sexual aggression is normative in some societies or a normal crime v Koss study: most men admit to some sort of sexual aggression even if they don’t admit it was rape v Jacqueline Goodchilds v Interviews with adolescents to discover various circumstances in which male sexual force against females would be considered legitimate or “OK” v EG “If he spends a lot of money on her” 12% of females and 40% of males indicated it would be “OK” v Male Violence and the Law v Violence against women is institutionalized and legitimated through the legal system of the state; State fails to intervene against sexual violence v Russell 2% of rapes result in arrest and of these only 1% gain a conviction. v Very high attrition rates v Feminist Criminologists and legal scholars v Targeted the legal system as the vehicle and object of massive legal reform v Rape reform movement begins in Michigan in 1973 and by 1990s all the states as well as the Federal G have implemented sweeping reforms. v Gender neutral v Replaced resistance and consent standards (that focus on the victim’s behavior) with the force used by the male v Abolished corroboration requirement v Rape shield legislation. No sexual history admitted v Rape shield should increase reports, arrests, prosecutions and convictions because the victim doesn’t have to endure harrowing degradation ceremony v But evaluation impact studies have found no increases in the above residual impact variables v Why? v Ignored what happens in court? Language v “Daughter’s Father” “Miss Smith” and moral character in general v Rape shield works when it comes to overt sexual history descriptions but not to covert sexual history inferences v Lonnie Stephens, Roy Black, Postal Delivery Prostitute here in Chicago v Patriarchal logic of sexual rationality: women and men the same prior to incident. Attracted to Bruce v Female logic of sexual irrationality and motivation after the incident. v Romantic, telephone number page 219
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