Week 11: Calavita and Guiffre - Hegemony

"Blue Jeans, Rape and the 'De-Constitutive' Power of Law" - Kitty Calavita

This article circles around a rape case in Italy which was overturned because the victim was wearing blue jeans at the time of the attack; the argument was that the woman must have helped take the jeans off herself, making the intercourse consensual. Calavita argues that this indicates that the constitutive power of law is hegemonic and problematic, and that we must examine the effects of law in a more critical light.

I find it a little horrifying that in this day and age, a case like this can simply be overturned--although then again, we like to think that we're modern and progressive here in the West. It is heartening, however, to see that despite the hegemonic power of law and the legal system, they can still backfire, which ironically only helps to pave the way for resistance and change. Law is not inevitably constitutive, and if a court makes a decision that is out of sync with the realities of society, the entire legal system suffers as a result--which most definitely helps the normal people in society who are seeking change.


"Boundary Lines: Labeling Sexual Harassment in Restaurants" - Patti A. Giuffre and Christine L. Williams

This article was essentially a survey of how people label things as sexual harassment in the workplace. The authors interviewed several waitpeople, and found that there were four main reasons that a person labeled something as sexual harassment--if the harasser was of a higher position, if the harasser was of a different race/ethnicity, if the harasser was of a different sexual orientation, or if the harasser threatened or used violence. The authors then argue that this sort of view of sexual harassment is problematic.

This is a very limited study, seeing as the authors only interviewed a handful of people, but the results are intriguing all the same. It's a little worrying that the ideologies behind the labeling of sexual harassment actually favor harassers who are heterosexual white men. Then again, our entire society is structured this way--it's not exactly a surprise, but it's still worrying. There are plenty of statistics about how many rapes go unreported, but I also wonder how many instances of sexual harassment go unreported. And do those people not report them because they themselves are of a minority in terms of race, class, or sexuality? It's problematic because an ideology like this also reinforces "institutionalized" forms of sexual harassment, like the boss coming on to the waitress and so on.

Week 9: Sarat, Ellsworth, Rose et al - Juries

"The Role of the Jury in the Killing State" - Sarat and Austin

This article was relatively self-explanatory. The authors were examining the legitimacy and competency of the jury in death penalty cases. They wanted to know what factors lead to citizens agreeing to state-sponsored executions and on how they can distinguish between who should die and who shouldn't. They examined the case of John Henry Connors, in which the man in question was sentenced to death, and how the jurors reached that decision. What they found was that jurors were able to ease their consciences on making the decision to kill someone due to several factors. The fact that it was a group decision diffused responsibility across everyone in the jury; the jurors believed that since it was someone else rendering the final decision or pulling the switch, they were not really to blame; and they perceived the death penalty was the only way to assure that Connors never got out of prison and killed again.

This is a fascinating study, albeit one that is slightly obvious. I knew already about the diffusion of responsibility--you see that all the time when a group has to make a difficult decision. What's more interesting is the fact that all of the jurors, even those who were adamantly for the death penalty, would have voted differently if life in prison had been on the table. Apparently at the time, Georgia (the state in which the case happened) life without the possibility of parole was not a legal option. Many of the jurors expressed the fear that Connors would get parole after a few years and would then be able to kill again. They saw the death penalty as the only surefire way to make sure Connors stayed in prison forever. They admitted that if life without parole had been an option, they would have chosen it.

I think this is important to acknowledge, because it shows that the other two factors that go into death penalty decision making aren't quite as important. The diffusion of responsibility and the belief that Connors' actual death lay in someone else's hands wouldn't have even mattered. Jurors thus aren't just shirking responsibility or trying to sleep better at night--part of each juror really does understand that they are responsible for putting a person to death, and that is why the majority of them would have voted for life without parole if it had been possible--they didn't want to become killers themselves.

It would be worth it to examine how jurors make a death penalty decision when they have to choose between life without parole and death, and to see how the results are different.


"Are Twelve Heads Better Than One?" - Ellsworth

This was a comprehensive study on the competency of juries in general, and whether they were more or less competent as a group than a single judge. Ellsworth found that only juries in which there was a lot of participation and discussion were the juries truly effective in getting rid of confusion and errors in thinking, and that they were even more successful when they postponed the vote until after the discussion.

Juries have gotten a lot of flack these days due to what are perceived to be stupid decisions, but I think this article highlights some of the advantages of juries. The group dynamic allows not only for lots of different people bringing their personal experiences and knowledge to the table, but it also allows for discussion. Through discussion, people are able to get to the heart of the matter and are able to figure out the truth despite errors or fallacies.

However, the system has flaws. Ellsworth points out that the system inherently tries to confuse and mislead juries, particularly in the ways that attorneys and judges talk to them. There should be a better system in place to educate the jury and to provide them with more clear facts, and likewise there should be less of an incentive for attorneys to kick intelligent or experienced jurors off.


"Goffman on the Jury" - Rose, Diamond and Baker

This article took the theories of Erving Goffman and applied them to how jurors respond to off-stage actions at trials--that is, the things that take place in the background when other people are talking. The authors concluded that jurors placed high value on how the actors acted when they weren't in the limelight or thought no one was looking. A smirk or a certain body language could immediately destroy the credibility of a witness or attorney, and the certain way in which a defendant cried on the stand could make or break a vote in favor.

This was fascinating. I had never really taken these subtle background actions into account. I have to admit, I'd kind of always had the assumption that jurors were generally easily sold on really obvious tactics to garner sympathy, such as crying on the stand. What's interesting is that a juror will witness such crying, but will then watch how the crier acts once they're no longer on the stand. This sort of topic really deserves some more research, since it seems that how jurors perceive offstage actions is one of the most important factors in their decision-making.

Week 8: Kennedy, Schulhofer, Seron etc. -- Lawyers!

"Legal Education and the Reproduction of Hierarchy" - Duncan Kennedy

This was easily the most interesting of my three articles. The article gives what is essentially an overview of the law school system of education and how crappy it is. Kennedy outlines the ways that law school education reinforces and reproduces preexisting hierarchies. He then provides a few solutions for how to fix the system.

I quite enjoyed this piece. Kennedy is unapologetic in his reaming of the entire system of law school education. I have never had any real desire to be a lawyer (and this article makes me even more leery of the whole system), but I had certain presuppositions about the reality of law school. It's seen as this great, WASPish establishment. When you hear someone has been to Harvard, you automatically respect them more. Law school is something that is practically unattainable and amazing (reminds anyone of the idea of Before the Law, of law as distant and awe-inspiring?).

So I was surprised to hear that, as Kennedy puts it, law school is more like high school than college. What really struck me was that law school has what he refers to as a trade school mentality. The whole article reminded me of "The Banking School of Education" (I can't remember who wrote it right now...) and how students in school are seen as receptacles to be filled with information. This is why in grade school you do a lot of memorizing and learn a lot of meaningless stuff that is presented to us without context. In the same way, law students are placed into a strict hierarchical framework, are taught not to really think critically about the reality of law, and have law presented to them without any sort of context.

However, I'm not sure how I feel about the end of Kennedy's article, in which he basically says "get your pitchforks, guys!" He talks about essentially overhauling the law school system, which I think should certainly be done, but it would be nice to provide a few more examples of how. For my part, I think law school students should definitely be taught more about the fluid, changing nature of law and should view law from a historical context. Only then do you realize that law isn't some distant and unchangeable thing--that it was created by people and can thus be changed by them.


"A Wake-Up Call from the Plea-Bargaining Trenches" - Stephen J. Schulhofer

Schulhofer's article is essentially a critical look at the reality of plea-bargaining. He outlines misconceptions that plea-bargaining is for the most part beneficial to to plaintiffs, using an example from David Lynch. He also gives a critical analysis of Lynch's paper and offers real solutions for how the legal system can be repaired.

This was an interesting article, though I can't help but think that Schulhofer is just another "academic in an ivory tower" who has just as distant a view as the other guys. Like Kennedy, I found his analysis to be more legitimate than his solutions, and I wasn't really interested in his critique of David Lynch at all. I was intrigued to find out that plea-bargaining really isn't a fair system, due to conflicts of interest between the attorney and the client and due to unequal distribution of information. It occurs to me that this should have been obvious, as just about every other aspect of law is unfair in one way or another, but oh well.

If I'm reading Schulhofer's solutions section properly, though, it looks like he basically wants to slowly do away with plea-bargaining. This is way too much of an idealistic, academic approach without full realization of the realities of the people actually involved. This is disregarding all of the people who don't have the time or money to go through a whole trial. Plea-bargaining, despite its flaws, does provide an alternate outlet for plaintiffs. Instead of doing away with the system, we should remedy it. It likely wouldn't be very difficult to force an equal distribution of information, at the very least.


"The Impact of Legal Counsel on Outcomes for Poor Tenants in NYC's Housing Court: Randomized" - Seron et. al.

This article was an analysis of a system in New York that provided low-income housing tenants with legal counsel in housing cases, and its effects on the tenants concerned. Seron and the others found that, essentially, the system worked--there was an increase in the number of tenants who managed to reach final judgment and that it in general improved tenants chances in court.

I found this article to be incredibly redundant and obvious. Knowledge is power, so providing people with knowledge will of course make them more powerful. Obviously, providing low-income individuals with legal counsel will improve their chances. Well-informed tenants will better be able to bring claims against landlords, and will be better able to fight claims against them. There's nothing really new here, although it would be interesting to see this sort of system implemented on a larger scale. I doubt it's possible, but imagine if everyone had equal access to competent lawyers and to knowledge about the ins and outs of the court system?

Week 6: Felstiner/Abel/Sarat, Alicke, and Wiethoff - Naming, Blaming, Claiming

I have to apologize in advance--I've been extremely sick the past few days, so this might come off as a little incoherent.

"The Emergence and Transformation of Disputes: Naming, Blaming and Claiming" - Felstiner, Abel and Sarat

This article created a new framework for analyzing the conception and creation of disputes based on a transformation model. This model utilizes the three stages of naming--recognizing an injurious experience as injurious; blaming--holding a party guilty for the injurious experience; and claiming--pursuing reparations and legal processes. In simpler terms, naming refers to perceived injurious experiences (PIEs, yes, PIEs), blaming is when those PIEs become grievances, and claiming is when grievances turn into actual disputes.

I liked this framework, mostly because it was easy to understand and made sense. It looks at individuals and how one's personal background and social location influence how they perceive something as injurious or not injurious. It also shows that the argument that the US is a sue-happy nation doesn't really hold water. A person first has to have the cognizance to perceive something as an injurious experience, and after that there is a long psychological process from perceiving something as injurious to transforming it into an actual legal dispute. A lot of it depends upon one's personal background as well as one's status--in other words, just how much access to the legal system they have.


"Culpable Control and the Psychology of Blame" - Mark D. Alicke

This article was, at least as far as I know, about establishing a culpable control framework to describe how people come to blame other people.

Honestly, I have very little to say about this article. I had no idea what it was talking about or what it's real point was, even less so since I was expecting it to actually go into the psychology of how people come to blame others--but it didn't. It was all a bunch of complicated terms and dense topics, not to mention the links and such, which I didn't understand at all. All of this might have been compounded by my cold, but I don't know. Sorry, guys, I got nothing.


"Naming, Blaming and Claiming in Public Disputes" - Carolyn Wiethoff

This article took Felstiner/Abel/Sarat's framework about naming, blaming and claiming to a new level, analyzing how naming, blaming and claiming took place in a particular public referendum. Wiethoff analyzes the arguments constructed by conservatives in a 1998 repeal of a civil rights act that protected the rights of GLBT individuals. In particular she looked at the strengths of their argument and the weakness of pro-GLBT counter-arguments.

This was a fascinating article. I feel like one of the most detrimental things to any civil rights movement is the lack of suitable counter-arguments. As Wiethoff points out, the referendum of 1998 passed because conservatives were successfully able to appeal to other conservatives as well as to general voters. They constructed arguments using a naming, blaming and claiming framework that, while not logically sound, at least appealed to voters who either had a similar agenda or didn't have the knowledge or desire to actually do their own research. Wiethoff says that people rely on schemas until the schema's fidelity is called into question. Anyone who wants to cause change in the world needs to have a good framework with which to form arguments and counter-arguments if they want to get anywhere.

Week 4: The Common Place of Law--Before, With, Against

In this book, Patricia Ewick and Susan S. Silbey craft a holistic conception of legality (law) and its relationship to society. Their conception is based on decades of prior research, and is situated around the three major conceptions of reality as held by normal people in everyday life. These conceptions are, essentially, that people either act before the law, with the law, or against the law.

I actually quite liked this analysis of how people view and deal with legality, despite the fact that if you think about it, it's a little obvious. People who act "before the law" view the law as remote, as a thing, as akin to the ubiquitous "they" who always seem to know everything. They invoke the law only occasionally, often "not wanting to bother" with it. The law is impartial and exists on another plane of reality, beyond time and space. This is essentially how I view the law, not due to choice or ignorance, but probably due to the fact that I don't encounter the law except on a very superficial level.

The second conception is that people act "with the law." These are people who have more experience with legality and the system in general; lawyers, upper-class people, the RPs that Galanter mentioned in his article. These are people who recognize legality as something fluid and changing, something that can be manipulated and used to one's advantage.

The third conception is that people act "against the law," and this isn't necessarily denoting people as anarchists or criminals. People have all kinds of small ways of rebelling against the law or the system. They are not necessarily out to change rules, change the system or maneuver within it, but are instead concerned with surviving. It's a defense mechanism as much as it is an outright rebellion against the system.

Ewick and Silbey argue that the majority of people use all three conceptions at some point in their lives, their best example being Millie Simpson, who covered all three in only one story. They also argue that law and legality are not a remote entity existing outside of time and space, with no context or history--rather, legality is a process of creating rules, affirming rules, acting on rules, breaking rules, and creating new ones. Everyone takes part in this process--it is not just old white guys in funny clothes writing up laws. We continue to create a law or a rule when we act upon it, no matter how we choose to act.

One other thing that struck me in this book came closer to the beginning, pages 40-41. Here the authors mention William Sewell and his concept of schemas. He says that schemas come into existence and then must be reinforced by the people in society; if it is not reinforced, the schema disappears. The authors go on to say that we can't think of legality as something removed from us, because we continue to create it day by day. While I was reading this, I was reminded of the Nature v. Nurture argument that once dominated many fields of study. This argument is the essence of dichotomy--things/people are either born/created that way, or they have been created that way due to their environment/context.

This seems to apply to previous studies of the ways that law and society interact (as the authors point out, even the term "law and society" indicates that the two are separated and dichotomous). Legality is either created/just happens, or it moves and changes given the context in which it exists (the authors cite seventeenth century responses to witches). I'm always surprised when this Nature v. Nurture argument crops up in any sort of legitimate field of study, because the argument has largely been abandoned by the scientific community. Who a person is and how they behave is determined by a combination of genetics and environment, just as legality is determined by who/what created the law and how it changes and shifts, and who does that changing and shifting. You can't possibly separate them, and it's ridiculous to try.

Week 3: Galanter, Caldwell and Seron/Munger -- Everything Intersects

"Why the 'Haves' Come out Ahead"--Marc Galanter

Let me say first off that...I'm not even really sure I'm supposed to be commenting on this one, since I'm pretty sure we were all supposed to read this one (plus I haven't seen anyone else comment on it yet). In any case, let's just go with it and see what happens, yeah?

The article is a massive overview of the legal system and is mostly an examination of who has and does not have the power within the context of the legal system. In other words, who is more likely to win a case? Who is more likely to make a claim at all? How difficult is it to instigate change in one form or another? Galanter gives a thorough examination of the four aspects of the legal system--Rules, Courts, Lawyers and Parties--and divides the different sort of cases that take place (in terms of who is versus who) and separates them into boxes. Finally, he takes a look at how the system can be changed, gives some examples, and suggests the best way to go about it.

Something struck me right away his suggestions for change. His main argument is that one-time court players (the individual criminal who is convicted once) will inevitably be at a disadvantage against repeat players (firms, insurance companies, organizations that end up in court relatively often) because RPs, as he calls them, have more resources, more experience, better standing in the community, and stronger relationships with other people/aspects of the legal system as opposed to OSs. His argument, then, is that the best way for the OS to succeed in changing the rules (laws) to be more equal is to, essentially, become an RP. In short, his suggestion is "organize."

Which is all good and fine. Anyone will tell you that people who get organized have a better chance of succeeding at whatever they're doing; that whole "one voice becomes ten becomes a hundred becomes a thousand" thing. But I think Galanter is attacking a symptom of the problem and not the cause. Organization only covers so many people; alcoholics can band together in terms of sponsors and AA programs, mistreated blacks can band together within the context of organizations like the NAACP and so on. But some people are barred from organizing. Think of the battered woman who kills her husband and is sent to jail--she might not be aware of the various organizations who could help her, might not have the means to contact them, might not have the financial means to hire a good lawyer and so on and so forth. If her case stays out of the media, the feminist organizations that could have helped her might not even find out about her plight until she's already in jail.

The power still rests in the hands of large groups of people, and the individual ends up lost in a very David vs. Goliath kind of situation. It sounds like kind of a "duh" statement, and honestly I would probably recommend organizing to anyone who asked. But I think it needs to be pointed out that just organizing isn't enough. It doesn't cover everyone, and it still neglects the individual, no matter how good the organization's intentions are.


"A Hair Piece"--Paulette M. Caldwell

This was a surprisingly enjoyable read. Caldwell here is talking about a specific case, Rogers vs. American Airlines, which seems harmless on the surface but actually has massive implications for the intersection of race and gender. The case upheld the dress code policy of American, saying that American could continue to fire or not hire people if they braided their hair. The case was brought on racial and sexist grounds, but the court upheld it, citing the biological aspects of race as well as pointing out that sexism and racism were unrelated. Caldwell goes on to talk about the true implications of the case--she's clearly an intersection theorist, and points out that the case is just as harmful to blacks as it is to women, due to the underlying racism and due to the objectification of women, among other things.

I quite liked this piece, as I consider myself something of an intersection theorist myself. I agree with her that the court needs to start considering the intersection of all the isms, and needs to look a lot deeper into things (I was particularly disgusted by American bringing up that the claimant in the case had started the hairstyle after seeing the movie 10, since, as Caldwell goes on to say, it assumes that black women contribute nothing to culture but instead just rip off "white" fads). The trouble is that the courts establish completely different systems for dealing with sexism and racism and treat them as completely separate, when you have only to look at the different way that black women are treated compared to black men to see that the two are intertwined.


"Law and Inequality"--Carroll Seron and Frank Munger

Much like Caldwell's essay, this article was another look at intersection theory, with particular examination of class. It covers the history of the sociology of law, and looks at how class was systematically excluded from the study. The pair then go on to include reasons why class is important when looking at the sociology of law, and how to re-include it in the study.

I find this to be a little outdated. A lot of people these days take it as a given that, of course class is intrinsically connected to the system of law. It's all a matter of looking at who has the power and who doesn't, in terms of class. Intersection theory has gained a lot more strength recently, and people are really starting to consider class in terms of the legal system and in the study of the sociology of law. However, I do agree that class still takes a backseat to the other isms in our society. America likes to pretend that class doesn't exist in this country, as sort of a throwback to our need to separate ourselves from England way back in the day. Class still manages to be rather invisible, although things have gotten better recently--although seeing it as intersected with the other isms may still take some time.

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