Legal Mobilization Research Articles

Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization ofKiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.

Social Movements and the Politics of Bureaucratic Rights Enforcement: Insights from the Allocation of Disability Rights in France

While research on legal mobilization shows how social movements contribute to the definition and implementation of rights, it remains excessively centered on litigation to the detriment of administrative rights enforcement. This article maps out how street-level bureaucracies impact rights enforcement by distinguishing between allocation, access, and process, and analyzes how social movements intervene in these three aspects. It then focuses on allocation, using the case of French disability policy to analyze the forms of advocacy deployed by movement actors who take part in the rights allocation process at the local level. The article argues that conformity to institutional norms derives not so much from a pressure to conform as from the knowledge and experience of the limited means locally available to make rights effective. Further, it shows how advocacy is reframed from the defense of individual claims to a role of scrutiny and control of the bureaucratic allocation of rights.

The European Court of Human Rights, Amicus Curiae, and Violence against Women

Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.

The Mobilization of Title IX across Colleges and Universities, 1994-2014

Title IX has been widely recognized as a crucial step toward gender equality in America. Yet it remains unclear how the law actually functions, particularly how it has been used in response to gender disparities in higher education. This article provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level. Drawing on new data acquired through seven Freedom of Information Act requests, I analyze all resolved Title IX complaints filed with the Office of Civil Rights against four-year nonprofit colleges and universities from 1994 to 2014 (N=6,654). I find that the mobilization of Title IX has changed both in frequency and in kind during this period. Filings started to rise after 2000 and exploded after 2009, while sexual harassment complaints nearly equaled academic and athletic filings for the first time in 2014. Finally, despite the egalitarian design of the complaint process, private schools and more selective schools face a disproportionate number of complaints relative to enrollment, indicating the power of institutions in mediating legal mobilization.

Legal Mobilization and Juridification: Migration as a Central Case

Legal Mobilization and Juridification: Migration as a Central Case

“No Going Back”. A case study of sexual and gender minorities in India and their legal mobilisation.

This paper explores the legal mobilisation in India against section 377, the anti-sodomy legislation originally introduced by the British. The first part explores the legal mobilisation as experienced by sexual and gender minority activists themselves. In the second part, some themes that have emerged as important are discussed in light of existing research and literature on sexual and reproductive rights lawfare. While the initial decision to litigate was controversial, Indian activists now seem to agree that the impact of litigation has been overall positive. Factors that help explain the Indian case include the particular Indian institution of Public Interest Litigation, engagement on the wider social arena in parallel with the judicial, and positive media attention. Moreover, decriminalization may have been rather easy for everyone in the LGBT/queer community to rally around, regardless of ideological position. In an increasingly polarized India some tensions within the community may become more toxic, however.

Her Majesty's Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building

AbstractIndigenous peoples have, to varying degrees, turned to the courts to litigate their ongoing disputes with Canada's settler colonial governments. Scholars have examined well the ways courts are used for strategic political ends by a variety of Indigenous and non-Indigenous litigants and are laden with settler values and institutional logics that are foreign to Indigenous peoples. However, it is less clear what effect turning to the courts in pursuit of strategic goals has on specific relationships between Indigenous peoples. This gap is more pronounced in Métis scholarship where there have been few final appellate cases. This paper argues the interaction between the Manitoba Métis Federation and Treaty 1 peoples seeking leave to intervene at the Manitoba Court of Appeal inMMF v. Canadailluminates the way litigating Indigenous-settler disputes can advance divisive, exclusionary, zero-sum political relationships between Indigenous peoples. These fractious interactions serve to undermine the construction of a co-ordinated and related inter-Indigenous decolonizing politics.

Effects of Prohibition and Decriminalization on Drug Market Conflict

Research SummaryTo reduce individual and social harms, most nations prohibit certain psychoactive drugs. Yet, prior scholarship has suggested that prohibition reduces illicit drug sellers’ access to law and thereby increases predation against and retaliation by them. No prior study, however, has directly tested that theory by comparing drug sellers of different legal statuses operating in a single place and time. This study analyzes rates of victimization, legal mobilization, and violent retaliation in three retail drug markets in Amsterdam, the Netherlands: the legally regulated alcohol trade of cafés, the decriminalized cannabis market of “coffeeshops,” and the illegal street drug market. Results from interviews conducted with 50 sellers in each market indicate, as expected, that illicit drug dealers have the highest rates of victimization and violent retaliation and the lowest rates of legal mobilization. Contrary to expectations, we find coffeeshops experience less victimization than cafés and have similar rates of violent retaliation and legal mobilization.Policy ImplicationsOur findings suggest that state regulation of drug markets affects victimization and conflict management of sellers, but the relationship does not seem to be linear. Prohibition undercuts the state's regulatory capacity by producing zones of virtual statelessness in which formal means of dispute resolution are unavailable, and thus, victimization and retaliation are more common. At the other extreme is laissez faire regulation, which may make sellers more likely to address problems only after they occur (instead of preventing their occurrence). The Dutch government originally instituted coffeeshops as a harm‐reduction method meant to separate the market for cannabis from that of hard drugs. The policy also seems to work well when it comes to reducing victimization, perhaps by encouraging the use of preventive measures by coffeeshop owners and employees. The Dutch experience offers lessons for drug policy reforms elsewhere.

Who Files Suit? Legal Mobilization and Torture Violations in Europe

The European Court of Human Rights (ECHR) is the most active international court. After decades with few allegations of human rights abuses, the ECHR docket expanded in the 1990s. Paradoxically, long‐standing democracies can have standardized violation rates of the prohibition against torture that compare to transitional democracies that struggle to protect rights. Yet it is implausible that human rights abuses increased or that established democracies engage in more torture than new democracies. Instead variations in legal mobilization generate the surge and puzzling distribution of European judgments. I argue that discrepancies between the incidence of torture and litigation reflect variations in support structures, where declared violations can reflect the level of support that individuals receive in pursuing claims rather than the incidence of torture. This dynamic is most pronounced for foreign nationals, who typically possess fewer resources than citizens to access legal institutions and encounter popular and official hostility. As a result, much European litigation concerning torture in long‐standing democracies is transnational in character.

Book Review: Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the Multi-Level European System

Book Review: Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the Multi-Level European System

Mobilizing Doubt: The Legal Mobilization of Climate Denialist Groups

Conservatives have adopted effective legal mobilization strategies in pursuit of their policy goals, but their legal mobilization efforts in the area of climate change politics are understudied. This paper explores the legal mobilization tactics of climate denialist groups, such as the industry-backed American Tradition Institute and the Free Market Environmental Law Clinic. These groups are increasingly using Freedom of Information Act (FOIA) requests to establish evidence of organized political activity by public university researchers who study the dynamics of climate change. This manuscript adds to the legal mobilization literature in three ways. First, this paper traces the origin of these climate denialist groups to the broader conservative legal movement of the 1970s that sought to challenge the dominance of legal liberalism in law schools, public interest groups, the judiciary, and other elite-dominated institutions, such as universities. Second, this manuscript uses the high profile case of Virginia Attorney General Ken Cuccinelli’s and the American Tradition Institute’s FOIA campaign against climate researcher Michael Mann to demonstrate how the legal mobilization tactics of climate denialist groups caused the American Association of University Professors (AAUP), the Union of Concerned Scientists (UCS), and the Climate Science Legal Defense Fund (CSLDF) to successfully countermobilize with their own legal campaign in support of the First Amendment rights of faculty. Finally, this manuscript provides the first empirical evidence of the effect of climate denialist FOIA suits on the activities of university researchers. Through personal interviews with researchers who have been asked to produce information under a FOIA request or state equivalent, I find overwhelming evidence that these requests do not alter the ways that they communicate research findings via email, but that they report initial negative experiences after learning of these requests and their means of communication are altered in the aftermath of these requests.

Covering Legal Mobilization: A Bottom‐Up Analysis of Wards Cove v. Atonio

We develop a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change. We illustrate the value of the hybrid theory by recovering the Wards Cove workers’ own understanding of the role of litigation in their struggle for workplace rights. The cannery worker plaintiffs exemplified Cover's dual logic by articulating aspirational narratives of social justice and by critically rebuking the Supreme Court's ruling as the “death throe” for progressive minority workers’ rights advocacy. The cannery workers’ story also highlights the importance of integrating legal mobilization scholars’ focus on extrajudicial political engagement into Cover's judge‐centered analysis. Our aim is to forge a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social science scholarship on the politics of legal mobilization.

Legal Mobilization under Neo-corporatist Governance

AbstractExisting theory suggests that under neo-corporatist governance, civil society groups are less likely to take the state to court. However, a comparative analysis of the use of legal strategies across a number of environmental nongovernmental organizations (ENGOs) in France presents a counterintuitive finding. Drawing on new data on more than 200 cases taken by these ENGOs, the analysis finds that the groups that are most incorporated in policy making are also the most active litigants against the Environment Ministry in the Conseil d’Etat. This article tests a number of theoretical explanations to account for this result. It finds that the neo-corporatization of the rules determining access to justice as well as the presence of certain agent-level characteristics helps to explain when and why groups mobilize the law.

THE (UN)PROTECTING AND (DIS)EMPOWERING POTENTIAL OF THE LAW AND HUMAN RIGHTS DISCOURSE WITHIN SOCIAL JUSTICE AND LAND CLAIMS

<p>Este artículo explora los efectos potenciales del uso de los derechos humanos en la formulación de reclamos de cambio social. El discurso de los derechos humanos ofrece una concepción de justicia social fundamentada en dignidad e igualdad. Por lo tanto, invocar los derechos humanos puede apoyar reclamos de justicia social y de protección del derecho a la tierra. En la realidad, los efectos del uso de los derechos humanos implica no sólo beneficios, sino también dilemas y riesgos para las movilizaciones sociales y políticas. Este artículo sostiene que el derecho y los derechos humanos no parecen una estrategia ideal para lograr el cambio social y la protección del derecho a la tierra. Sin embargo, en algunos contextos, este discurso contribuye a empoderar a las personas o grupos tradicionalmente excluidos, haciendo visibles situaciones injustas y ofreciendo una realidad alternativa fundamentada en igualdad o dignidad. Al menos este discurso puede convertirse en un símbolo que inspira la movilización social.</p>

Requests for Environmental Information Disclosure in China: an understanding from legal mobilization and citizen activism

This article analyzes the fairly recent phenomenon of citizens and organizations requesting disclosure of environmental information in China. Chinese citizens and organizations are invoking the new open government information regulations to push government agencies, particularly environmental protection agencies, to fulfill their legal obligation of information disclosure. By requesting that government agencies disclose environmental information, citizens and organizations have turned themselves into active agents pushing forward the implementation of the new regulations. The findings of this article suggest that a bottom-up legal mobilization in the field of environmental information disclosure, though still with a limited scope, has been happening and endeavoring to make social and political changes in China. Furthermore, this legal mobilization can be seen as an important part of emerging civil society activities in contemporary China.

What Makes Them Successful? Influential Interest Groups in Hungary (1990–2014)

Although many scholars of Central and Eastern Europe politics write about the relative weaknesses of civil societies, some studies delivered evidence of cases where interest groups were able to influence particular decisions and policies. Therefore, we aimed at identifying and examining the most influential national interest groups of eight different policy areas in post-communist Hungary hoping to explore the reasons for their success. Older generations of organisations benefit from political embeddedness, while newer advocacy groups rely more on legal instruments and public mobilisation. The operation of successful groups has not been affected by the strong political polarisation of the Hungarian party system.

Rights enabled: the disability revolution, from the US, to Germany and Japan, to the United Nations

Drawing on extensive fieldwork and a variety of original sources, Katharina C. Heyer examines three case studies - Germany, Japan, and the United Nations - to trace the evolution of a disability rights model from its origins in the U.S. through its adaptations in other democracies to its current formulation in international law. She demonstrates that although notions of disability, equality, and rights are reinterpreted and contested within various political contexts, ultimately the result may be a more robust and substantive understanding of equality. Rights Enabled is a truly interdisciplinary work, combining sociolegal literature on rights and legal mobilization with a deep cultural and sociopolitical analysis of the concept of disability developed in Disability Studies. Heyer raises important issues for scholarship on comparative rights, the global reach of social movements, and the uses and limitations of rights-based activism.

Making Rights Work: Legal Mobilization at the Agency Level

This article discusses how McCann's theory on legal mobilization and social change is generalizable to the legal decisions of agencies. I demonstrate how the Equal Employment Opportunity Commission (EEOC) routinely delayed and denied Title VII employment rights on the basis of sex and how this resulted in the formation of the National Organization for Women (NOW) to ensure that the sex provision of Title VII was enforced. The article also discusses the influence of NOW in shaping the first years of Title VII law and the organization's role in reversing EEOC decisions denying rights under the sex provision of the law.

Älter, hörbeeinträchtigt und…. erwerbstätig!

Bisher fehlen in Deutschland ausreichend aussagekraftigen Daten oder Statistiken zur Erwerbsteilhabe von Menschen mit Behinderung, so auch von alteren erwerbstatigen Menschen mit Behinderung. Um diese Forschungslucke fur den Teilbereich von erwerbstatigen Menschen mit einer Horbehinderung in den Blick zu nehmen, wird seit 2009 das Projekt GINKO (Gesetzeswirkungen bei der beruflichen Integration schwerhoriger, ertaubter und gehorloser Menschen durch Kommunikation und Organisation) durchgefuhrt. Ein Ziel der Studie ist die Analyse der Bedingungen der beruflichen Integration von Menschen mit Horbehinderung unter besonderer Berucksichtigung der Frage der Rechtsmobilisierung des SGB IX und dessen konkrete Umsetzung im Arbeitsalltag, insbesondere der behindertengerechten Gestaltung des Arbeitsplatzes auf Grundlage des § 81(4) SGB IX durch z. B. technische Hilfsmittel. Dazu wurden im Rahmen der GINKO-Studie bundesweit Betroffene mit einem standardisierten Fragebogen, der auch online mit Gebardensprachfilmen zur Verfugung stand, schriftlich zu Inhalten der aktuellen Gesetzgebung und der Situation am Arbeitsplatz befragt. Insgesamt beteiligten sich an der GINKO-Umfrage n = 3.189 schwerbehinderte berufstatige Personen, davon waren n = 661 (20,7 %) der Teilnehmenden zwischen 50 und 65 Jahre alt. Der Anteil der Arbeitnehmerinnen in dieser Altersgruppe betrug 48,7 %. Die Ergebnisse des GINKO-Projekt zeigten, dass die durch § 81 Abs.4, SGB IX vorgesehenen Masnahmen zur Gestaltung von behinderungsgerechten Arbeitsplatzen bei alteren horbeeintrachtigten Arbeitnehmenden bisher noch in eher geringem Mase umgesetzt werden. So ergaben die Analysen der Angaben der alteren berufstatigen Teilnehmenden (n = 661) zur Gestaltung ihres Arbeitsplatz, dass lediglich 29,6 % dieser Gruppe ihren Arbeitsplatz insgesamt betrachtet als horgeschadigten gerecht beurteilt. Insbesondere technische Hilfsmittel wie z. B. FM-Anlagen oder Zusatzmikrophone stehen vielen erwerbstatigen Teilnehmenden nicht zur Verfugung, obwohl sie sie benotigen wurden. Auch der fur Menschen mit Horschadigung wichtige Aspekt der Larm-Minderung am Arbeitsplatz wie z. B. Schalldammung wird nur bei etwa einem Drittel der Befragten berucksichtigt. Somit zeigen die Analysen im Rahmen des GINKO-Projekts auf, dass weitere Anstrengungen notig sind, um die vorhandenen gesetzlichen Moglichkeiten konkret umzusetzen.

Waikeung Tam: Legal Mobilization Under Authoritarianism

Legal Mobilization under Authoritarianism traces and explains the rise of law to a more prominent role in the politics of post-colonial Hong Kong. The author, Waikeung Tam, a political scientist, argues that Hong Kong is a ‘‘surprise’’ case, in the double sense that law is effectively mobilized despite the non-democratic and controlled setting within which the Hong Kong legal system works and also that law is mobilized in ways that different from what China would wish. There is quite a body of scholarship on the legal development of Hong Kong post-1997, with special attention paid to the performances of the relatively young Court of Final Appeal (CFA). But most of these works are written by legal scholars, whose concerns are more strictly jurisprudential and court-centered. Legal Mobilization treats the process of legal development within a broader sociopolitical context. It is, to my knowledge, one of the very few books that examine the post-colonial legal development of Hong Kong from the perspective of a social scientist. The strength of the book lies in its theoretical clarity and the wellorganized analytical framework it adopts. Tam argues that the successful case of Hong Kong is in part a consequence its historical legacies and in part an outcome of the opening up of the legal opportunities in the first decade of the post-colonial era. The book is divided into four parts. Part I sets out the theoretical framework and the overall argument of the book. Part II discusses the dynamic interplay between the opening up of legal opportunities and the narrowing of political opportunities in post-1997 Hong Kong. Part III discusses cause lawyering in Hong Kong. Part IV offers some concluding remarks. Its main data come from outcome and topical analyses of cases decided by the CFA and also its colonial predecessor, the Privy