Law and Social Inquiry-Journal of the American Bar Foundation最新文献

Visual data are transforming the documentation of activities across many legal domains. Visual data can incriminate or exonerate; they can shape and reshape public opinion. Visual evidence can legitimize certain accounts of events while calling others into question. The proliferation of visual data creates challenges for the law at multiple points of entry: recording, distribution or disclosure, redaction or deletion, or use as evidence. This symposium outlines and analyzes legal challenges posed by recent developments in visual data technologies and practices. This introductory essay and the articles that follow highlight legal issues that arise when state actors collect visual data and when visual data are used in legal disputes. Technological development is outpacing empirical research on, and legal regulation of, visual data within society and inside the courtroom. This symposium provides a much-needed opportunity to highlight new legal and empirical research at the intersection of visual data and law.

This essay provides a summary and critical appraisal of Risa Goluboff's Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, a book that interweaves the stories of an eclectic cast of characters who were the targets of vagrancy law prosecutions with stories of the lawyers who challenged these prosecutions. In charting the demise of what she terms a “vagrancy law regime,” Goluboff provides insights on the major social and political developments of the 1940s through the 1970s, including the labor movement, the black freedom struggle, the antiwar movement, and the sexual revolution. Goluboff's most significant achievement is her ability to identify in seemingly scattered challenges to vagrancy law a coherent and historically significant episode of constitutional change. Although I question whether the book delivers on its promise to reframe the way we understand the “long 1960s,” Vagrant Nation nonetheless offers a model of how to integrate social history and doctrinal history into a compelling narrative of constitutional change.

In my response to reviews by Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib, I explain some of the challenges of writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s. In particular, I explore the challenge of creating narrative coherence without losing the essential multiplicity of the story or compromising my methodological commitment to constitutional history across the many actors involved in the legal change process. I ultimately constructed such coherence on three levels: narrative, thematic, and doctrinal. Narratively, I settled on a larger role for the Supreme Court than initially anticipated, while still de-centering the Court substantively, methodologically, and causally. I located thematic coherence largely in a new vision of the “sixties.” The decade that emerges was marked by a common claim against the idea that everyone had a proscribed place from which they could not escape; an evolving if incomplete effort to disentangle difference from danger; and the crucial role of both sympathy and empathy in the success of the challenge to vagrancy laws. Though numerous legal arguments ran through that challenge, doctrinal multiplicity—the refusal to flatten or narrow the complex set of arguments and harms that vagrancy cases presented—became its own form of coherence.

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

The recent burst of scholarship on policing in 1960s America has produced two literatures that have often spoken past one another. One literature has taken a presentist perspective and has found in the 1960s the roots of the current carceral state. A second literature has characterized the 1960s as a period in which a century-old policing system collapsed. This essay uses Risa Goluboff's Vagrant Nation to tie these two literatures together, arguing that the terms on which Papachristou (1972) tore down the “vagrancy law regime” prompted and channeled the growth of the carceral state. The elimination of vagrancy law encouraged the state to expand the institutional and political reach of the police, ultimately helping produce a police power that was more intractable.

This essay showcases the contribution of Risa Goluboff's Vagrant Nation (2016) to one field of scholarship that the book scarcely mentions: the historical literature on the American state. In Goluboff's account of the fall of the “vagrancy law regime” in the “long 1960s” I see vital questions about the nature of the modern American state and the endurance of older, seemingly antithetical modes of governance. Given the trends that state-focused scholars have illuminated—for example, toward centralization of power and the protection of individual rights—what allowed for vague, locally enforced vagrancy laws to survive so late into the twentieth century? What ultimately triggered their demise? In mining Vagrant Nation for answers, this essay also urges scholars to contemplate “constitutionalization” as a form of statecraft. In giving a constitutional law framing to the grievances of “vagrants,” federal courts reinforced key tenets of the modern American state, including the supremacy of national law over competing legal orders and the desirability of being a rights-bearing member of the nation-state. Simultaneously, these court decisions left open other, more “modern” possibilities for regulating the kinds of people (poor, nonwhite, unpopular) whom vagrancy laws once ensnared.