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Theorizing Law and Legal Mobilization in Racial Capitalist Empire

Michael W. McCann and George I. Lovell

in Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism

The concluding chapter expands on core ideas developed in the introductory chapter and integrated into the historical narrative, with an eye to reshaping the agendas of sociolegal scholars who ... More

The concluding chapter expands on core ideas developed in the introductory chapter and integrated into the historical narrative, with an eye to reshaping the agendas of sociolegal scholars who research the politics of legal rights mobilization. One core theme is the need for greater attention to state legal violence. A second, and closely related theme involves the theoretical framework of “racial capitalism” in which the contemporary rule of law is embedded and whose hierarchical structures law works to perpetuate. The most original, provocative, and no doubt controversial aspect of this analysis is the development of ideas regarding the variegated traditions of liberal, repressive, and – especially in the post-World War II – hybrid legal forms that sustain racial capitalist hierarchies. Special attention will be given to racialized subjectivities of low wage workers and institutional practices of legal administration that repress them, including especially criminal justice, “crimmigration,” segregated housing policy, and workplace governance. The chapter concludes with the implications of the critical analysis for legal mobilization, as practical politics and intellectual research agendas, in the contemporary period.Less

Introduction

Michael W. McCann and George I. Lovell

in Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism

The opening chapter summarizes the core themes and landmark events or developments in the historical narrative study from the initial colonial project of the US in the Philippines to the endemic ... More

The opening chapter summarizes the core themes and landmark events or developments in the historical narrative study from the initial colonial project of the US in the Philippines to the endemic “criminalization” of Filipino migrant workers in law and society, the second generation of worker’s aspirational political struggles, the murder of two reform leaders in 1981, and the devastating Wards Cove ruling in the late 1980s that rebuffed the workers’ claims and eviscerated civil rights law. After explaining the key terms in the book’s title – “by law” and “union” – the chapter outlines the core theoretical frameworks for the book, including legal mobilization theory, critical race theory, and racial capitalist analysis of the larger sociolegal context of workers’ rights struggles. Also discussed is the rationale for the historical research design, the constitutive approach to analysis of power, the role of Carlos Bulosan as literary chronicler and activist subject, and the unique, subtle epistemological and methodological standpoint of the book’s authors.Less

LELO, ACWA, and the Politics of Civil Rights Mobilization

Michael W. McCann and George I. Lovell

in Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism

This chapter follows the rebirth of the oppositional rights tradition among a younger generation of Filipino American cannery workers and their diverse allies in the 1970s. A critical dimension of ... More

This chapter follows the rebirth of the oppositional rights tradition among a younger generation of Filipino American cannery workers and their diverse allies in the 1970s. A critical dimension of this story is the influence of African American labor activist Tyree Scott, who pioneered a model of transformative grassroots protests and class action civil rights lawsuits to open up the building trades in Seattle and elsewhere in the US. Scott’s model of legal mobilization was highly influential to a dissident group of young Filipinos, who joined him to form a “workers’” legal organization (LELO – Labor and Employment Law Office) and filed three civil rights law suits. The young reformers – led by Silme Domingo and Gene Viernes – aimed to use the litigation to improve worker conditions and opportunities in the canneries, to build support among workers for taking power from the corrupt union leadership in Local 37, and to catalyze support for alliance with anti-Marcos groups in the Philippines as well as anti-racist socialist reform activists in the metropole. The reform activists in the Alaska Cannery Workers Association (ACWA) realized great success on all three aspirations with this legal mobilization strategy.Less

Civil Society and the European Court of Human Rights

Rachel A. Cichowski

in The European Court of Human Rights between Law and Politics

The chapter addresses the role of civil society in the ECtHR's incremental transformation of human rights in Europe over the last 50 years. The chapter argues that the evolution of the Convention ... More

The chapter addresses the role of civil society in the ECtHR's incremental transformation of human rights in Europe over the last 50 years. The chapter argues that the evolution of the Convention system was and continues to be critically linked to a dynamic interaction between civil society and the ECtHR. The chapter examines the interaction between NGOs and social activists and the ECtHR over a 50-year period and reveals the important linkages between social activism and the judicial rule-making of the Court. This larger historical analysis is complemented by an in-depth case study of Turkey and the UK in the area of minority rights to provide a more detailed analysis of this general mobilization—litigation dynamic over a fifteen-year period. The legitimacy of this legal process remains a fine balance between societal inclusion and domestic government support.Less

Studying Courts in Context: The Role of Nonjudicial Institutional and Socio-Political Realities

Siri Gloppen

in Closing the Rights Gap: From Human Rights to Social Transformation

This chapter proposes a research strategy for contextualizing legal struggles for human rights in a wider temporal, socio-political, institutional, and dynamic context. Studying the judicialization ... More

This chapter proposes a research strategy for contextualizing legal struggles for human rights in a wider temporal, socio-political, institutional, and dynamic context. Studying the judicialization of matters that were traditionally the domain of public policy is complex, even before taking into account the myriad non-judicial considerations and facilitating or constraining factors that affect processes and outcomes – such as capacity, mobilization, politics, meaning creation, or extra-territorial obligations. The framework presented allows comparative research to proceed in stages, where one phase of data collection answers a set of questions while raising others, and further research addresses new concepts and theoretical concerns. Work of various scholars can thus cumulate iteratively to address complexity in ways that are unfeasible in a single research project.Less

An Equal Place?: Empirical Appraisal and Theoretical Implications

Scott L. Cummings

in An Equal Place: Lawyers in the Struggle for Los Angeles

This concluding chapter considers how local movements to make Los Angeles a more equal place—one in which marginalized workers have greater protections, better wages and benefits, and a larger voice ... More

This concluding chapter considers how local movements to make Los Angeles a more equal place—one in which marginalized workers have greater protections, better wages and benefits, and a larger voice in the workplace and politics—have depended on a new generation of lawyers, embedded in local networks and committed to local action, who have negotiated an equal place of their own in advancing economic justice campaigns. It does so by exploring the larger contributions of the book’s five case studies: assessing what they teach about the meaning of equality both as a process and an outcome of legal advocacy in the contemporary American metropolis. To do so, the chapter offers two perspectives on local legal mobilization, one empirical and the other theoretical. First, from an empirical perspective, it synthesizes evidence from the case studies to evaluate the central role that lawyers have played in the struggle for economic justice in Los Angeles—and how their leadership has contributed to regulatory change strengthening workers’ economic rights and political representation. Second, from a theoretical perspective, the chapter reflects on the book’s lessons for the study of lawyering, labor, and local government law, drawing attention to how the L.A. campaigns inform critical normative aspirations within each field—the possibility of reviving progressive lawyering to address the challenges of neoliberalism, rehabilitating federal labor law to contest economic inequality, and reimagining local government law as a catalyst for national reform.Less

Mobilizing Nationhood: The Treaty-Rights Movement and the Roots of Resentment

in The Cultivation of Resentment: Treaty Rights and the New Right

This chapter describes the specific and general contexts against which anti-treaty-rights activists react. In so doing, it sketches the backdrop for contemporary tribal legal mobilizations. The ... More

This chapter describes the specific and general contexts against which anti-treaty-rights activists react. In so doing, it sketches the backdrop for contemporary tribal legal mobilizations. The recognition by national officials of treaty rights to sovereign governance has been critical to Indian activism. Equally important has been the willingness of tribal nations to mobilize these treaty rights to secure national, state, and local compliance with the provisions that they promise. The chapter illustrates some of the core insights of the legal-mobilization scholarship. Legal mobilizations, if they are to be successful tools for social change, require a favorable set of conditions internal and external to the movements. Just such a constellation of favorable conditions emerged in the United States during the 1960s and 1970s; these conditions facilitated the successful legal mobilizations that propelled the treaty-rights movement. However, this favorable context was momentary, quickly giving way to a more negative context even as the most notable victories of the era resonated.Less

The Ainu, Law, and Legal Mobilization, 1984–2009

Georgina Stevens

in Beyond Ainu Studies: Changing Academic and Public Perspectives

This concluding chapter provides a review of legal rulings pertaining to Ainu, but also develops an integrated assessment of how legal mobilization both at home and abroad has leveraged Ainu claims ... More

This concluding chapter provides a review of legal rulings pertaining to Ainu, but also develops an integrated assessment of how legal mobilization both at home and abroad has leveraged Ainu claims in “shaming the state.” Ainu achieved international notoriety by exposing the Japanese government's misdeeds in United Nations meetings, and linkages established there further galvanized the movement at home. While Ainu people have rarely seen concrete legal outcomes resulting in legal redress for historical or contemporary injustices, The collective gains of legal mobilization—symbolic, political, and economic—have helped improve and empower their domestic human rights situation. The remainder of the chapter enumerates the content and potential effects of the Japanese government resolution in 2008 to recognize the Indigenous status of Ainu.Less

Rights, Resentment, and Social Change

in The Cultivation of Resentment: Treaty Rights and the New Right

This chapter first sets out the book's purpose, which is to analyze special-rights talk both as it constitutes a specific set of disputes and as it reverberates generally. The book undertakes an ... More

This chapter first sets out the book's purpose, which is to analyze special-rights talk both as it constitutes a specific set of disputes and as it reverberates generally. The book undertakes an in-depth exploration of opposition to Indian treaty rights that illustrates the general impacts of special-rights discourse on American politics. The chapter considers legal-mobilization scholarship, and then discusses how conservative legal mobilizations are, in large part, reactions to the political activism of women, African Americans, the physically and mentally disabled, Indians, and gays and lesbians over the past fifty years—an activism characterized by a willingness to mobilize rights as resources for social change. However, threatened by the activism of the socially marginal, many resentful Americans responded with an activism of their own. An overview of the subsequent chapters is also presented.Less

Untangling the Domestic Implementation of the European Court of Human Rights' Judgments

Dia Anagnostou

in The European Court of Human Rights: Implementing Strasbourg's Judgments on Domestic Policy

This introductory chapter presents and elaborates on the main theme of the book – the domestic implementation of the European Court of Human Rights (ECtHR) judgments – and highlights its contribution ... More

This introductory chapter presents and elaborates on the main theme of the book – the domestic implementation of the European Court of Human Rights (ECtHR) judgments – and highlights its contribution in the existing body of scholarly research. In advancing an interdisciplinary perspective into the subject, it extends beyond the predominantly legal genre of scholarship to explore the institutional actors involved in it, as a few studies have began to do over the past couple of years. At the same time, this chapter also discusses the need for a for a multifaceted approach that further takes into account and explores the political context and the societal dynamics that influence domestic implementation. The next part of this introductory chapter depicts the basic contours of the Convention's institutional evolution and its enforcement machinery. The third part expounds the methodological and analytical considerations guiding the present set of studies, while the last two parts elaborate on and provide an overview of the two main sections of the book that examine a) the implementation responses of, and interactions among different institutional and governmental actors, and b) the patterns of legal and political mobilisation to pursue different minority-related rights claims vis-à-vis states.Less

The Rose Case: A Case Study in Legal Advocacy

Anne Newman

in Realizing Educational Rights: Advancing School Reform through Courts and Communities

To examine the opportunities and challenges of attempting to secure educational rights through courts, Chapter 4 offers a case study of a landmark school finance lawsuit from Kentucky, Rose v. ... More

To examine the opportunities and challenges of attempting to secure educational rights through courts, Chapter 4 offers a case study of a landmark school finance lawsuit from Kentucky, Rose v. Council for Better Education.This case is often celebrated as the beginning of the “third wave” of school finance litigation, and it offers important lessons for ongoing school finance reform and for evolving conceptions of what the legal right to education entails. The chapter focuses on an under-analyzed feature of cases like Rose: how moral claims about educational entitlements can inspire citizens to mobilize and support litigation, which in turn can impact judicial outcomes and policy implementation. The chapter considers how particular educational rights claims figured into the Rosecase, and where they converged and diverged with moral claims about educational justice. This focus highlights the interplay between moral and legal conceptions of educational rights, and how the philosophical ideals advanced in the first part of the book may shape rights-based advocacy in practice.Less

Politics, Courts and Society in the National Implementation and Practice of European Court of Human Rights Case Law

Dia Anagnostou

in The European Court of Human Rights: Implementing Strasbourg's Judgments on Domestic Policy

This concluding chapter discusses and analyses the patterns of variation in the domestic implementation of the ECtHR's judgments, as well as the attitudes of national officials, judges and government ... More

This concluding chapter discusses and analyses the patterns of variation in the domestic implementation of the ECtHR's judgments, as well as the attitudes of national officials, judges and government actors vis-à-vis the ECtHR's case law across and within the different countries under study. The implementation of the ECtHR's judgments and their potential for prompting reform and policy change domestically can be approached through different perspectives, which may also be relevant for understanding compliance with international law more broadly: the political and policy process, a judicial politics perspective, and a social mobilisation perspective. Besides reviewing the findings of the country case studies included in this volume, this chapter outlines and discusses these three perspectives. It ends by reflecting on and briefly discussing the role of the ECHR and the Strasbourg Court in promoting democracy in Europe.Less

Introduction Why Prince Edward County?

in Southern Stalemate: Five Years without Public Education in Prince Edward County, Virginia

Prince Edward County (PEC), Virginia, was the neglected chapter in American civil rights history. The racial history of Prince Edward is rich and complex. The county's pliable race relations allowed ... More

Prince Edward County (PEC), Virginia, was the neglected chapter in American civil rights history. The racial history of Prince Edward is rich and complex. The county's pliable race relations allowed blacks a limited voice in legal matters. The end of the Civil War radically reshaped race relations in the county and beyond. This book is a political history and analysis that tries to discover why Prince Edward, alone among localities, elected to abandon public education for five years. It uses Prince Edward as a case study to examine rhetorical defenses of racial segregation. It is also employed to study the use of legal mobilization and direct-action tactics in addressing racial inequalities, assessing how and when legal mobilization and direct action may result in tangible benefits. Finally, an overview of the chapters included in this book is given.Less

From the Courtroom to the Street: Black Activism in Prince Edward

in Southern Stalemate: Five Years without Public Education in Prince Edward County, Virginia

This chapter investigates the strengths and limitations of legal mobilization strategies to forge social change. It evaluates the gap in the use of directaction techniques by Prince Edward blacks ... More

This chapter investigates the strengths and limitations of legal mobilization strategies to forge social change. It evaluates the gap in the use of directaction techniques by Prince Edward blacks from 1951 to 1963, exploring the obstacles that hindered the launch of a sustained protest campaign in the county. As the Prince Edward case showed, it was even more difficult to use outsider tactics to reopen schools than to desegregate them. The erasure of public education had contracted the ranks of black leadership and potential movement participants and forced black community members to resort to crisis management as they sought to secure education for their children. Protestors in Prince Edward did not have the capacity to pressure the county board of supervisors and school board to reopen schools.Less

Conclusion

Kitty Calavita and Valerie Jenness

in Appealing to Justice

This chapter sums up the findings and discusses their implications for understanding disputing, legal mobilization, and legal consciousness, as well as prison life itself. The authors emphasize that ... More

This chapter sums up the findings and discusses their implications for understanding disputing, legal mobilization, and legal consciousness, as well as prison life itself. The authors emphasize that institutional and structural location are critical to making sense of the findings, some of which appear at first glance to be counterintuitive and inconsistent with the prevailing literature. And they reflect on the importance of multiple sources of data across contexts—archived documents as well as spontaneous conversations in interviews—for complicating the understanding of these processes and advancing theory. Looking beyond the institutional and structural environment and methodological context, the analysis underscores the importance of situating work in its historical setting and the seismic tensions of its larger ideological-cultural landscape.Less

Introduction: Rights, Captivity, and Disputing behind Bars

Kitty Calavita and Valerie Jenness

in Appealing to Justice

The introduction provides an overview of the book, briefly describing prison conditions, criticisms of the California Department of Corrections and Rehabilitation, the prisoner grievance process, and ... More

The introduction provides an overview of the book, briefly describing prison conditions, criticisms of the California Department of Corrections and Rehabilitation, the prisoner grievance process, and the existing literature on legal mobilization and disputing. The authors note that the extensiveness of prisoner grievance filing is inconsistent with findings from the literature on legal mobilization that show that stigmatized and/or vulnerable people are unlikely to launch disputes. The authors argue that this paradox, as well as others, must be understood within the context of the conflicting cultural and institutional logics of rights and carceral control. The chapter then provides a road map of the book.Less