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

This essay on Madison's Hand: Revising the Constitutional Convention, Mary Bilder's revisionist account (2016) of James Madison's Notes on the Constitutional Convention argues that her central thesis, which is that Madison substantially revised the Notes long after the Convention adjourned, is groundbreaking but will have no effect on constitutional law. Madison's Hand is groundbreaking because the book yields many powerful insights into the deliberations of the Convention and into the evolution of Madison's thought. Nevertheless, constitutional practice in the Supreme Court and among elite lawyers is so divorced from the Notes that even a dramatic shift in their interpretation will not disturb the evolution of judicial doctrine applying the text written in 1787.

Jeannine Bell's Hate Thy Neighbor: Move In Violence and the Persistence of Racial Segregation in American Housing provides an account of racist violence as a tool for maintaining housing segregation that challenges perceptions of rising tolerance and demonstrates the importance of understanding racism as a structural feature of social organization. Bell shows how some perpetrators of move in violence deploy claims about “property values” as a defense against charges of racism. The use of such claims starkly illustrates how colorblind racism allows assertions of racial privilege to resonate as neutral articulations of rational self-interest. The desire to defend racial privileges persists as a significant practical barrier to racial equality even when tolerance increases.

This essay draws on four recent studies of elections to state supreme courts in the United States to probe widely perceived changes in the scale and content of electoral campaigns for seats on state supreme courts.1 Evidence from these studies and other sources indicates that changes have indeed occurred, though they are more limited than most commentaries suggest. These changes stem most directly from trends in state supreme court policy that have attracted interest-group activity, especially from the business community. Like their extent, the effects of change in supreme court campaigns have been meaningful although exaggerated by many observers. What we have learned about changes in supreme court elections has implications for choices among selection systems, but those implications are mixed and complex.

In Liberty and Coercion: The Paradox of American Government from the Founding to the Present, Gary Gerstle offers an ambitious account of American legal development from our nation's founding up to the present day. In many ways, Gerstle's account is in keeping with the long scholarly tradition of linking legal liberalism with changes in American law and politics. However, Liberty and Coercion also calls to mind critical legal scholarship, most notably Duncan Kennedy's “The Structure of Blackstone's Commentaries” and the idea of the fundamental contradiction. After reconstructing Kennedy's central claims, I highlight how they actually undermine Liberty and Coercion and jeopardize the larger legal liberal tradition.

This article examines the conditions under which judiciaries become politicized under authoritarian regimes, focusing on the 2007–2009 lawyers’ movement of Pakistan. The prodemocracy movement arose after the sacking of the Supreme Court Chief Justice by General Musharraf, and was remarkably successful in removing Musharraf and restoring the sacked judges. Although the conventional wisdom is that such judiciaries are quiescent, I argue that judicial actors can play important roles in democratization, but only under certain conditions. In the case of Pakistan, civil society actors were vital in helping the judiciary become politicized and in linking the lawyers’ movement to the larger cause of democratization. I argue that, otherwise, the lawyers’ movement could not have headed the movement that eventually led to the restoration of democracy. Specifically, I argue that civil society played a crucial role, framing the movement as broad, national, and prodemocracy, which enabled it to overthrow the authoritarian regime.

Urban police officers concentrate much attention on individuals who experience various forms of inequality. Some police tactics that address the socially marginal garner public concern, especially when violence occurs. Solutions to such police-community tensions are elusive, in part because police cannot meaningfully reduce inequality. Yet there are better and worse ways to police the impoverished, and we use this article to contrast three general approaches: aggressive patrol, coercive benevolence, and officer-assisted harm reduction. We contrast their operating logics and their implications for police practice and tactics. We find great merit in officer-assisted harm reduction, which is a nascent effort. Pioneered in Seattle, it helps to reorient police culture and practice and enables efforts to address some of the challenges facing many impoverished individuals. Although its widespread adoption will not eliminate police-community tension in poor communities, it is superior to other alternatives, and thus deserves replication.

This article analyzes rights consciousness as distinct from legal consciousness, and uses the post-1989 housing restitution in Romania to study property rights consciousness as a type of rights consciousness. I argue that property rights consciousness is only partially an outcome of state power and the political regime, and that rights consciousness more generally must be explicitly analyzed beyond formal rights, legal mobilization, and litigation. I explore sources of rights consciousness for former owners and their heirs, state tenants, and lawyers. Sources of rights consciousness include state policies under distinct property regimes, value systems and ideologies, history, identity, practices, supranational actors, and expectations of what rights can deliver. I find clear distinctions between legal and rights consciousness, as well as variations between and within the groups. The article is based on extensive archival research, interviews conducted in the city of Timişoara, Romania, textbooks, academic articles, and court decisions pre- and post-1989.