The Courts

3/16:

The Dynamic Court:

  • Key Term: Courts are “powerful, vigorous, and potent proponents of change” that are responsive to movements seeking political and social change

A Hollow Hope:

  1. Limit nature of constitutional rights

  2. Lack of judicial independence

  3. Lack of powers of implementation

Courts and Social Change:

  • Four conditions: Courts can produce social change when other political institutions and actors…

    • incentives

    • costs to induce compliance

    • when judicial decisions can be implemented by the market

    • when the court’s ruling serves ‘as a shield, cover, or excuse, for persons crucial to implementation who are willing to act’

  • Rights → Harm → Litigation → Remedy → Effective or Ineffective?

Legal Mobilization:

  • Key term: When a desire or a want is translated into a demand or assertion of rights using law

  • Key assumptions:

    • Law is a ‘primary medium of social control and domination’ but…

    • Language of law exceeds official state forums (e.g., courts)

    • Legal order is pluralistic (official and unofficial)

    • Citizen activity is both creatively autonomous and dependent on official order

    • Effectiveness will depend on the ‘terrain of conflict,’ or sociolegal context

  • Examine both the direct and indirect effects of legal mobilization on:

    • Movement building

    • Reform policy negotiation

    • Reform policy implementation

    • Movement Legacy

  • Movement building:

    • Agenda Development

    • Generating Mass Involvement

  • Reform Policy Negotiation

    • Law as Club: Threat and/or act of litigation secures negotiation power due to cost, probability of loss or judicial intervention, and/or public condemnation, and will compel concessions

    • Law as Stick: Threat and/pr act of litigation secures only minimal negotiating power due to unfavorable terrain of conflict and will compel only minimal concessions

    • Law as Splinter: Threat and/or act of litigation drains resources, yields unfavorable ruling(s), or produces other critical setbacks

  • Reform Policy Implementation: Stage at which cooptation, existing hierarchies, unequal power, and resources are more likely to limit the effectiveness of lega mobilization

  • Movement Legacy:

    • Transforming lega; consciousness

    • Building movement networks and solidarity

    • Framing and mobilizing future struggles

Moore v. Dempsey: an example of Legal Mobilization

  • Four years of appeals before Court agrees to hear the case on writ of habeas corpus

  • Mob-dominated trials violate the 14th Amendment right to due process

  • Entire process corrupted - no appeals process will remedy

  • Open state criminal court proceedings to federal judicial oversight

  • 1882-1968: 4,743 lynchings across the U.S. (72% Black victims)

  • Mob-dominated trials persist, particularly in the South

  • All-white juries persist across the U.S. despite Court’s ruling in Strauder (1880)