Legal Movement Research Articles

Remembering Tim McCoy: 20 Years on

Twenty years on we again Remeber Tim McCoy through three key policy arenas he was involved in: prisons, privacy and the national community legal centre movement. Amanda George (1999 Tim McCoy Prize winner) sends Tim a letter explaining the prisons scene, Andy Haesler reports on the state of privacy in Australia, and Annie Nash provides an update on the strength of the national CLCs network.

Here Come the Grooms: How Goodridge, Hernandez, and Lewis Illustrate and Develop a Path to Same-Sex Marriage Recognition

This article presents a new and profound reading of recent same-sex marriage decisions in Massachusetts, New York, and New Jersey. Feminist legal methodologies illuminate how recent same-sex marriage decisions exist on a continuum or a path progressing toward gay and lesbian equality. The article illustrates how several feminist legal theorists used such methodologies in their work and suggests how those scholars would or would not see their methods as productive in gay and lesbian legal scholarship and practice. Applying feminist legal methodologies to same-sex marriage decisions, the article illustrates both the progress achieved by these cases and the potential for these cases to develop a path toward gay and lesbian equality. The article is both timely and groundbreaking. It offers a treatment of same-sex marriage cases that includes the recently decided case from New Jersey. Much legal scholarship explores the costs and benefits of same-sex marriages considered in these decisions. However, my article goes beyond that analysis in exploring recent same-sex marriage decisions as a part, albeit an important part, of a larger gay and lesbian legal movement. The article concludes with suggestions on how gay and lesbian legal practitioners can continue the fight for legal equality.

Islamic Law and Society Post-9/11

▪ Abstract After the events of September 11, 2001, scholars rushed to contribute to the growing public debate about religion and political violence, including to counter stereotypic depictions of Islamic law and to raise questions about its role in the social and political life of Muslim and non-Muslim nations. The same period also witnessed the publication of much scholarship on Muslim personal or family law. This review focuses on these works and highlights their sophisticated theoretical treatments of social theory in critical areas, such as the interaction of normative orders, constructions and intersections of identity, human agency in the legal process, law reform and social movements, state uses of law, and the challenges facing globalizing societies. These theories provide grounding for scholars, activists, and policymakers in addressing the pressing issues emerging after 9/11.

Just Advocacy? Women's Human Rights, Transnational Feminisms, and the Politics of Representation

Just Advocacy? Women's Human Rights, Transnational Feminisms, and the Politics of Representation. Edited by Wendy S. Hesford and Wendy Kozol. New Brunswick, NJ: Rutgers University Press. 2005. 310 pp. $24.94.The transnational dimensions of women's rights are an important emerging area of analysis. Just Advocacy? provides timely and critical insights into this area of study. This edited book is unique in that it applies a cultural lens to the study of political questions relating to rights, transnationalism, and representation, questions which are conventionally conceived through legal, institutional, or social movement theories. The critical feminist stance of the authors draws out the complex and often contradictory nature of human rights—especially as they relate to the operation of gender and to women's lives—and conceives of both feminism and transnationalism in diverse ways.

Western Law, Russian Justice: Dostoevsky, the Jury Trial, and the Law

Gary Rosenshield offers a new interpretation of Dostoevsky's greatest novel, The Brothers Karamazov. He explores Dostoevsky's critique and exploitation of the jury trial for his own ideological agenda, both in his journalism and his fiction, contextualizing his portrayal of trials and trial participants (lawyers, jurors, defendants, judges) in the political, social, and ideological milieu of his time. Rosenshield presents Dostoevsky's critique in terms of the main notions of the critical legal studies movement in the United States, showing how, more than one hundred and twenty years ago, Dostoevsky explicitly dealt with the same problems that the law-and-literature movement has been confronting from the 1980s to the present.

Ross and Olivecrona on Rights

Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on legal rights, while also summarizing the critiques of those views (e.g., by H.L.A. Hart and Joseph Raz).

The ethics of palliative care and euthanasia: exploring common values

The ethical underpinnings of palliative care and those of voluntary euthanasia and assisted suicide (VE/AS) are often viewed as opposites. In this article, we review the values held in common by the euthanasia legalization movement and palliative care providers. Outlining this common ground serves to define, with greater clarity, the issues on which differences do exist, and ways in which some open questions, which are as yet unresolved, could be approached. Open discussion between VE/AS legalization advocates and palliative care providers is important to address these open questions seriously, and to enrich the care of terminally ill patients by giving members of both groups access to each other’s experience.

The Miscegenation Analogy Revisted: Same-Sex Marriage as a Civil Rights Story

Why Marriage Matters: America, Equality, and Gay People's Right to Marry. By Evan Wolfson. New York: Simon and Schuster, 2004. $22 (cloth). $13 (paper). Why Marriage: The History Shaping Today's Debate Over Gay Equality. By George Chauncey. New York: Basic Books, 2004. $22 (cloth). The raging debates over same-sex marriage have dispersed the subject of homosexuality across the terrain of American culture with unprecedented force, but the pundits and politicians are still debating its impact not only on the recent national elections but in configuring the next battle in the culture wars. Meanwhile, many insiders in gay and lesbian political circles foresee a long uphill battle before we see the dawning of full sexual equality. And a leading legal historian, Hendrik Hartog, recently predicted that not in his lifetime would the Supreme Court overturn a defense of marriage statute in the states.1 Despite all the commentary on the obstacles to a compromise, few observers convincingly explain why the marriage issue practically overtook the gay and lesbian agenda or why the conservative opposition so powerfully prevailed against it. In both of the books reviewed here, however, why is the first word in the title. Evan Wolfson, a lawyer and architect of the legal movement, titles his elegant treatise Why Marriage Matters: America, Equality, and Gay People's Right to Marry. Another leading expert, George Chauncey, author of the landmark historical study Gay New York, titles his new short book Why Marriage? The History Shaping Today's Debate Over Gay Equality. Both authors believe that their books will advance the cause of equality by appealing to readers in the public sphere, and both clearly develop historical, political, and philosophical arguments against conservative opponents. For the record, I also believe that same-sex partners deserve the option of legal marriage on the federal level, but [End Page 523] I feel alternately disappointed and angered by the narrowness of the vision that the movement and its leaders feel compelled to offer us. This review therefore takes a hard look at the arguments in these books, not to betray my comrades in the struggle for gay liberation, but rather to help myself reimagine a wider spectrum of possibilities for social change in American culture. In engaging prose and bullet points, Wolfson surveys the definitions and remunerative benefits of marriage, demonstrating an impressive expertise in relevant legal cases and social policy. He effectively mixes a liberal interpretation of the legal history, which he projects as a triumphal story of progress interrupted only by the denial of marriage to gays, with anecdotes of committed gay couples frustrated by prejudice and nonrecognition. Wolfson ranges from ancient Rome to the Bible, from medieval society to modern America, including a foray into the evils of antebellum slavery, to refute conservative arguments that define marriage by the gender of its partners, a transcultural, timeless dyad of man and woman. By contrast, Wolfson emphasizes the affective qualities of marriage and effectively builds a rapport with his readers based on shared understandings of the particular marital values "of love, equality, and inclusion" (6). What becomes clear along the way is that Wolfson understands marriage like a lawyer, both as a contract and as a matter not only of obligations but also privileges. In the same way, historian George Chauncey devotes his first chapters to a summary of the recent burst of historiography on marriage by leading scholars such as Hartog, Nancy Cott, and Peggy Pascoe. Their work sometimes conceives of marriage less as a personal relationship than as a sort of social institution, which serves larger systems of patriarchy and citizenship. But historians demonstrate that marriage steadily improved in the 1920s under the pressures of a modernist gender revolution that emphasized personal satisfaction for spouses. Marriage improved again in the 1960s, under the combined pressures of legal reformers, the sexual revolution, feminism, and the courts. By now, historians and lawyers alike speak of marriage as...

The evolving role of critical race theory in educational scholarship

In 1994 the legal scholarship movement, critical race theory (CRT), was introduced in education. Since that time, a variety of scholars have taken up CRT as a way to analyze and critique educational research and practice. In this brief summary the author addresses the themes of the articles found in this issue and offers words of encouragement to a new generation of scholars who see CRT as a valuable tool for making sense of persistent racial inequities in US schools.

Measuring Undocumented Migration

This article reviews standard sources of demographic data-censuses, intercensal surveys, registration systems, and specialized surveys and describes their inability to provide accurate data on immigrants, particularly those without documents. We discern a need for data that can identify undocumented migrants and their characteristics, measure trends over time, support longitudinal research, compare the characteristics of migrants before and after they enter, provide sufficient sample sizes for detailed analyses, study transitions between different legal statuses and movements back and forth, and monitor the effects of policy changes on a timely basis. We suggest that the ethnosurvey design satisfies these criteria. We describe the theory, structure, and organization of the ethnosurvey and then describe its application in the Mexican Migration Project. We then highlight its application in other locations around the world and outline an agenda for future comparative research.

Weapons Transfers as a Soft Security Issue in Eastern Europe: Legal and Illicit Aspects

The article looks into the problem of weapons transfers in Europe from the perspective of soft security. While the military security dimension of the issue has traditionally received sufficient coverage, weapons transfers also have important implications for soft security of the European states, both in terms of the issues they are linked to, and policy measures designed to control the proliferation of weapons. The soft security aspects of arms transfers are outlined in the introduction, while the subsequent sections look into the trends of both legal and illegal movement of weapons in and from Europe, and policy measures controlling the spread of both major conventional weapons, and light weapons and small arms at the global, regional (European), and national levels. The conclusion assesses the effectiveness of these measures, and implications thereof for European security.

Collegiate Desegregation as Progenitor and Progeny of Brown v. Board of Education: The Forgotten Role of Postsecondary Litigation, 1908-1990

The year 2004 has been filled with commemorations, celebrations, retrospectives, and re-analyses of the importance, impact, and implications of the Brown v. Board of Education, Topeka (1954) case on its 50th anniversary. Absent from this re-visitation of desegregation in the primary and secondary educational settings are an acknowledgment and investigation of the role of colleges and universities in the quest for educational equity. The legal history of attempts to dismantle dual systems of higher education is the parent from which mass desegregation was born and the offspring that efforts to integrate K-12 have produced. The postsecondary cases that predate Brown provide the doctrines, principles, and jurisprudence that undergird the U.S. Supreme Court's 1954 decision. Likewise, continuing litigations to redress inequality in public higher education are the primary banner carriers for the legal movement that required all deliberate speed. The literature on desegregation has fascinated scholars and students for more than a generation. The novice must confront hundreds of books and journal articles on the subject, representing myriad theoretical perspectives and positions. Most explanations of desegregation focus on the social, cultural, and moral reasons and guidelines for the various initiatives (Adair, 1984; Bell, 1987; Brown, 1995; Brown, 1999; Freer, 1982; Wiggins, 1966; Williams, 1988). Others even look at the impact that desegregation will have on the culture of institutions, and/or the cost-benefit of following the federal mandate to desegregate (Browning & Williams, 1978; Institute for the Study of Educational Policy, 1980; Myers, 1989; Smith, 1981). However, scant attention is given to the legal history of higher education desegregation and its relationship to the famous Brown v. Board of Education, Topeka (1954) case. The Supreme Court ruling in the Brown case is book-ended by a corpus of court cases related to access to colleges and universities. In a very real sense, the advent of desegregated elementary and secondary emerged from the integration of colleges and universities. Concomitantly, the desegregation of colleges and universities emerged from the integration of elementary and secondary schools. The pages that follow chronicle the often forgotten legal history that both immediately precedes and subsequently follows Brown v. Board of Education. HISTORY OF BLACKS IN HIGHER EDUCATION Americans of African descent and their European counterparts have generally had dissimilar experiences regarding the acquisition of higher education. From slavery through Jim Crow, African Americans were categorically excluded from collegiate participation save at a few northern liberal arts colleges such as Berea and Oberlin. In fact, during slavery educating chattel or their offspring was a criminal offense (Klingberg, 1941). In some states these ignorance laws included emancipated slaves. Despite the existing laws, punishments and hardships, a small percentage of southern Blacks still desired knowledge of reading, writing, and arithmetic. Although clandestine schools and Christian education provided slaves with an opportunity to read, memorize, and recite biblical passages (Woodson, 1968), when the Civil War commenced less than 5% of the 4.5 million Americans of African descent were literate; even fewer knew the 3Rs-reading, 'riting, and 'rithmetic (Fleming, 1981). Only 28 Blacks had received baccalaureate degrees from American colleges or universities before the Civil War (Roebuck & Murty, 1993). The aftermath of the Civil War brought a proliferation of Black-founded, operated and populated institutions. More than 200 Black educational institutions were founded in the South during the interval between 1865 and 1890 (Jencks & Reisman, 1968). By and large these institutions were established and funded by the Freedman's Bureau, Black churches, local communities, private philanthropists, and northern missionaries. …

Legal Movements in IP: TRIPS, Unilateral Action, Bilateral Agreements, and HIV/AIDS

In this contribution to the NEXIS Symposium: An Interdisciplinary Forum on the Impact of International Patent and Trade Agreements in the Global Fight Against HIV & Aids, Professor Bagley looks beyond the WTO Doha Declaration to other patent and trade issues that may also significantly impact access to essential medicines. The Article begins with an overview of the relationship between the TRIPS Agreement and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the multilateral TRIPS process generally and the benefits of the Doha Declaration in particular in addressing multiple facets of the access to essential medicines problem. The Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to the HIV/AIDS pandemic.

Access to technology for the disabled: the forgotten legacy of innovation?

The growth of the importance of new technologies, particularly the Internet, has sparked a vast amount of interest in their regulation and the harnessing of their commercial potential, but much less attention has been paid to widening access. A so-called ‘digital divide’ has been recognised; the phenomenon of certain groups being left behind as new technology progresses. Disabled Internet users, for example the partially sighted or those with impaired motor skills, can enjoy full access to websites if they are enabled to support this access. Legal movements have been made in the area of online accessibility, particularly through the landmark Maguire v SOCOG case, and cases brought in the USA under the Rehabilitation Act 1973 and the Americans with Disabilities Act 1990. These cases often refer to the Web Content Accessibility Guidelines to determine a standard accessibility but no universal standard has yet been developed. The developments in this area are piecemeal but if accessibility requirements are recognised not only for public but also for private websites the impact will be substantial.

Form, Function, and Feminist Law Journals

An inquiry into the function of feminist law journals needs to ask first: functions for whom? The answer must, it seems to me, vary depending upon whose perspective we take. Let me single out for special emphasis the role of feminist journals for feminist law students. Journals provide one way to find like-minded souls and to infuse legal education with a perspective that many students find a ppallingly absent in classroom offerings. This magnet-like function strikes me as equally (if not more) important than anything else feminist law journals might do. I confess to being somewhat autobiographical here. As a law student in the early 1980s, the time I spent as an articles editor on the Harvard Women's Law Journal was among the richest parts of my law school experience. Through that journal work, I saw some tangible evidence of what it might actually mean to be a feminist lawyer--an idea that seemed to me, as a student, distinctly more abstract than concrete. But more importantly, I worked with a terrific group of women, several of whom today remain close friends and fellow travelers. We sometimes debated contentious issues about the feminist debate over pornography (a very hot topic at the time), the links between gender and race, the role of lesbians in the feminist legal movement, and other questions. I recall some passionate discussions engendered, so to speak, by several editors simultaneously taking an intensive January term Sex Discrimination class taught by the formidable Catharine MacKinnon. That class was as rich and provocative as anything I took in law school, but the discussions among Women's Law Journal staff members that spilled over into journal meetings added new dimensions and may have been where I, as a law student, most actively engaged the questions about equality that had brought me to law school in the first place. There are, of course, many other perspectives we might take. For feminist lawyers and policy advocates, for example, feminist journals might provide guidance on new questions that have been relatively unexplored in courts or more conventional academic fora. (1) Likewise, feminist law journals provide a good place to publish for those seeking to influence ongoing debates in feminist theory. (2) And often, feminist journals provide engaging symposium questions that begin interesting conversations. (3) Today's topic is a good example of a provocative symposium question that has induced many of us to think about a question that might not otherwise appear on our radar. Indeed, as I have been moved to think more specifically about the roles of feminist law journals, I have come to see how existential questions about feminist journals are emblematic of much larger issues facing academic activists. I include in this category many scholars working in women's studies, race studies, ethnic studies, queer theory, disability studies, and beyond--fields that I will call difference studies in this paper. I will suggest that, as we look at the forms and functions of feminist law journals, we can see broader themes about the sometimes uneasy intersection between academia and advocacy for social justice. Prompted by this symposium, I spent some time perusing the mission of many feminist law journals, statements that are available in many cases on journal websites. (4) I wondered how these journals saw their own functions. Beyond their shared signature feature--the choice to engage the proverbial woman question--two broad commitments leapt out at me as particularly significant: commitment to scholarship that (i) is strongly committed to social equality; and (2) is both interdisciplinary and intersectional. These are not the only distinguishing features of the journals, but they are the two on which I would like to focus. First, and unsurprisingly, feminist law journals generally embrace the mantle of social justice. The Texas Journal of Women and the Law captures this quite succinctly, with a logo that shows a women's sign with scales of justice hanging on either side of its vertical bars. …

Mexico‐US Migration: Moving the Agenda Forward

SUMMARY The US and Mexico during the 1990s embraced closer economic integration as well as increased cooperation on migration management. In 2001, that culminated with a joint Presidential initiative to establish a new migration management framework. That effort stalled in 2001, and the authors have explored ways to revive cooperative migration management by: - Promoting a secure and efficient border that facilitates the legal movement of people and goods, and deters unauthorized migration and smuggling, thereby helping both countries increase security and reduce crime and violence along the border, while still benefiting from the high volume of lawful crossings. - Enhancing Mexican governmental efforts to reduce the cost of remitting money to Mexico and increasing the economic development impacts of savings remitted by Mexicans in the US, as well as better targeting family planning and antipoverty programmes in migrant areas of origin. - Experimenting with pilot guest worker programmes to allow currently employed unauthorized Mexican workers to obtain legal work permits, and to include economic instruments that encourage returns and spur development in these pilot programmes.

Whose Trial? Comments on A Theory of the Trial

linked to more recent trends in the academic study of the law. The sociological study of civil and criminal justice has been concerned with processes of plea bargaining and settlement, and with other means of diverting cases from the formal institutions of law, in seeking to argue that in practice the trial is not central to the operation of law. And while the critical legal studies movement has criticized the formalism and abstraction of legal scholarship, it has not sought to anchor the study of law in the concrete practices of legal institutions such as the trial, but instead in the social and political forces that shape law making-a position that has largely accepted the formalist account of the trial as a forum of rule application. We thus have two significant schools, one pulling toward the abstraction of rules from the context of their application, the other pulling towards the context in which rules are used or created, and the trial has been left somewhere in the middle.

On Frictional Mechanical Systems and Their Computational Power

In this paper we define a class of mechanical systems consisting of rigid objects (defined by linear or quadratic surface patches) connected by frictional contact linkages between surfaces. (This class of mechanisms is similar to the analytical engine developed by Babbage in the 1800s, except that we assume frictional surfaces instead of toothed gears.) We prove that a universal Turing Machine (TM) can be simulated by a (universal) frictional mechanical system in this class consisting of a constant number of parts. Our universal frictional mechanical system has the property that it can reach a distinguished final configuration through a sequence of legal movements if and only if the universal TM accepts the input string encoded by its initial configuration. There are two implications from this result. First, the robotic mover's problem is undecidable when there are frictional linkages. Second, a mechanical computer can be constructed that has the computational power of any conventional electronic computer and yet has only a constant number of mechanical parts. Previous constructions for mechanical computing devices (such as Babbage's analytical engine) either provided no general construction for finite state control or the control was provided by electronic devices (as was common in electromechanical computers such as Mark I subsequent to Turing's result). Our result seems to be the first to provide a general proof of the simulation of a universal TM via a purely mechanical mechanism. In addition, we discuss the universal frictional mechanical system in the context of an error model that allows an error up to $\epsilon$ in each mechanical operation. We first show that, for a universal TM M, a frictional mechanical system in this $\epsilon$-error model can be constructed such that, given any space bound S, the system can simulate the computation of M on any input string $\omega$ if M decides $\omega$ in space bound S, provided that $\epsilon < 2^{-cS}$ for some constant c. We also show that, for any universal TM M and space bound S, there exists a frictional mechanical system in the $\epsilon$-error model with $\epsilon = \Omega(1)$; it has O(S) parts and can simulate M on any input $\omega$ that M decides in space bound S.

Dissent and the Anarchic in Legal Counter‐Culture: A Peircean View

The author analyses the role of dissent and anarchic thinking in modern legal culture. Such notions traditionally convey opposition to established authority and are essential for all free and open societies. In fact, the right to dissent and practising anarchic beliefs exist insofar as a true right of confrontation is guaranteed by the legal system. In this perpective, the author suggests some correspondences between dialogic thinking, that Peirce says allows all ideas to grow semiotically, and the development of the role of dissent in the legal culture. Generally speaking, the question concerns the well‐known Peircean dichotomy between chance/spontaneity and lawfulness. This thesis is exemplified in detail looking at the history of US law, at its outset the direct consequence of a legal counter‐cultural movement against British common law. Moreover, the possibility of dissent is written into the United States constitution. At least three modes of dissent are built into American law as legal counter activities: (1) voices of nondominant religions, (2) dissent within the legal system, e.g., dialogue among and within the courts, (3) challenging the legal system sanctioned by the right to civil disobedience and by other forms of reaction against an oppressive government.

Who’s Afraid of Legal Pluralism?

In the roughly thirty years in which the concept legal pluralism has been used in legal and social scientific writings on complex normative systems, the concept has become a subject of emotionally loaded debates. Though originally introduced with modest ambition as a ’sensitizing’ concept, drawing attention to the probability and frequent existence of parallel or duplicatory legal regulations of the same domain of social action or organisation within one political organisation, the discussion is increasingly dominated by the exchange of conceptual a priori’s and stereotypes as well as by clichés over those who use them. Rather than looking at the heuristic value of the concept in use, for describing, analysing and evaluating empirical complex normative situations, the conceptual struggles tends to create two camps, effacing the many differences in assumptions and approaches to law in society. Starting with Tamanaha’s paper on the folly of legal pluralism (1993), one can even observe the emergence of a bogeyman called ‘the legal pluralists’ or a ‘legal pluralist movement’ (associated with the Commission on Folk Law and Legal Pluralism and the Journal of Legal Pluralism) devoted to some romantic but ill-conceived enterprise of equalizing normative orders that are quite fundamentally different, by calling normative orders not recognized as law by the state, nevertheless ‘law’. Such concept of law, it is argued, obscures the fundamental differences in form, structure and sanctioning potential or effective sanctioning between state law and other normative orders. Others in contrast emphasise that a construction of the term law as a basic concept for historical and cross-cultural comparison nearly automatically leads to a concept that can encompass a wide range of variation, and in which law made or recognized by state institutions is one, but not the only empirical manifestation of law. Reserving the concept of law to state law only, in their eyes comes close to an essentialist and ahistorical conception of ‘law’. This paper analyses the reasons given for and against the concept legal pluralism and presents the author’s views on its value and limitation.