DOCSLIB.ORG

Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching Review Essay Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching Mark A. Graber n 1983 Martin Shapiro worried that the “new juris- Recent developments in the public law subfield have prudence of values” being promoted by the new gener- confirmed some of these fears, while alleviating others. Iation of public law scholars in political science would Prominent scholars continue paying disproportionate atten- “serve as a cover for slipping back into playing ‘little law tion to American constitutional law as handed down by professor’ for undergraduates.”1 Proponents of the “juris- the Supreme Court of the United States. Twenty-nine of prudence of values” in political science, who engaged in the forty-two awards for scholarship given out since 1990 constitutional theorizing about individual rights and the by the Law and Courts section of the American Political structure of governing institutions, would “writ[e] con- Science Association have gone to works on the Supreme ventional case law doctrine” that “contain[ed] no distinc- Court or American constitutional law. This public law tive political analysis.” Worse, the fruits of the behavioral scholarship, however, speaks with political science voices. revolution might rot should normative concerns take cen- Both behavioral and humanistic scholars are developing ter stage in public law inquiry. Rather than further inte- distinctive empirical and normative insights into Ameri- grate the study of courts into mainstream political science, can constitutional law, theory, and politics. Their work public law scholars would spend their time telling Supreme makes connections between ongoing constitutionalist Court justices how to do their jobs. Shapiro predicted, themes and such traditional concerns of political science “[P]olitical scientists trained in the empirically oriented as political development, rational agency, comparative analy- ‘American politics’ field will be shoved to the edges of sis, political institutions, and political philosophy. Law ‘public law,’ and political jurisprudence will be converted and Courts studies on the implementation of judicial deci- to ‘legal and political theory.’”2 Abandoning American sions, sophisticated voting on constitutional courts, the constitutionalism was the best antidote for the threat a interaction between elected and judicial officials, consti- jurisprudence of values presented to the social science study tutional analysis outside the courts, and the broader ideo- of law and courts. Students of the judicial process, Sha- logical foundations of constitutional doctrine are beginning piro declared in 1989, should explore “any public law to lead, rather than always follow, academic law. A small other than constitutional law, any court other than the but increasing number of distinguished law professors now Supreme Court, any public lawmaker other than the judge, borrow from public law analysis in political science to and any country other than the United States.”3 garner new insights into American constitutionalism.4 Remarkably, at a time when more academic lawyers play “little political science professor” in their scholarship, Mark A. Graber is a professor of government at the Uni- many political scientists continue playing “little law pro- versity of Maryland, College Park and a professor of law fessor” when teaching basic undergraduate courses on con- at the University of Maryland School of Law stitutionalism. The new constitutional scholarship in public ([email protected]). He is the author of Transform- law has not made substantial inroads into the under- ing Free Speech, Rethinking Abortion, and Dred Scott graduate syllabus. Undergraduates taking political science and the Problem of Constitutional Evil. The author thanks courses on constitutional law too often read the same cases Rogers Smith, Howard Gillman, Keith Whittington, Ran and perform the same exercises as students taking second Hirschl, Jennifer Hochschild and several (not-so) anony- year constitutional law courses in law school. Judging from mous reviewers from their advice and encouragement. Apol- syllabi alone, the most important development in political ogies to the numerous talented young students of public law science scholarship during the past forty years has been whose fine works were omitted to conserve space. the additions to Robert McCloskey’s classic, The American March 2005 | Vol. 3/No. 1 135 Review Essay | Constitutionalism and Political Science Supreme Court, that cover approaches that make Supreme Court practice Remarkably, at a time when more academic greater use of history, from 1960 to the present.5 qualitative analysis, case The following survey lawyers play “little political science professor” in studies, and normative identifies and proposes to themes have been revived. remedy the present dis- their scholarship, many political scientists Some non–political scien- junction between politi- tists are taking notice. Sev- cal science scholarship and continue playing “little law professor” when eral prominent historians political science teaching and academic lawyers reg- on American constitu- teaching basic undergraduate courses on ularly engage with the tionalism. A renaissance is scholarship produced by presently taking place in constitutionalism. members of the public law public law studies of con- field.7 Law professors dur- stitutionalism. While both behavioral and humanistic work ing the 1970s and early 1980s turned to history in efforts is gaining increased attention within and without the to revive Warren Court jurisprudence.8 Recently, Lucas discipline, the undergraduate political science classroom Powe and Mark Tushnet turned to political science in remains in a doctrinal dark age, overly focused on read- their attempts to explain both the Warren Court9 and the ing, explaining, and reproducing judicial opinions. Peda- demise of Warren Court jurisprudence.10 gogical progress might be made by recognizing that Much contemporary political science research on Amer- political scientists write about and teach constitutional ican constitutionalism punctures the myth of heroic courts politics, not constitutional law. Under that banner, pro- that routinely protect the politically powerless. Supreme fessors teaching undergraduates should find more room Court justices, public law studies conclude, rarely disagree in their basic constitutional law syllabi for exploring dis- with policies made by the political elite,11 often pull their tinctive public law approaches to constitutionalism that jurisprudential punches when they do disagree,12 and are combine normative and empirical analyses in ways that typically ineffective when they attempt without substan- advance fundamental concerns of both political science tial outside support to bring about fundamental political and constitutionalism. reform.13 Presidents and legislative majorities are primar- The following polemic is solely against the structure of ily responsible for establishing judicial review and for pro- the basic undergraduate constitutional law sequence as viding justices with the tools necessary to engage in taught by nearly every political science department in the constitutional policy making.14 Judicial decisions declar- United States. The sequence typically consists of a class ing laws unconstitutional in the United States are, more devoted to Supreme Court cases on the structure of gov- often than not, facilitated by powerful political forces and ernment and a class devoted to Supreme Court cases on serve various elite interests.15 Judicial outcomes are gen- civil rights and liberties. Some departments offer more erally congruent with public opinion16 and more often specialized upper-division seminars that focus more inten- polarize than teach.17 Challenging the common legal claim sively on political science readings and less on case law.6 that justices have “a situational advantage over the people For every undergraduate who takes the more sophisti- at large in listening for voices from the margins,”18 polit- cated constitutionalism course whose readings focus on ical scientists detail how judicial opinions rely on wide- public law analysis, however, probably five to ten take the spread political norms,19 including political norms that constitutional law course whose readings center on doc- assign political statuses on the basis of race, gender, and trine. Whatever the precise numbers, the vast majority of ethnicity.20 undergraduates learning about American constitutional- Gerald Rosenberg’s The Hollow Hope is the most prom- ism in the political science classroom spend somewhere inent work of the new constitutional scholarship, both between half and three-quarters of their time reading cases, inside and outside of political science. Through meticu- briefing cases, and analyzing doctrine. Very little time is lously researched case studies, Rosenberg challenged those spent reading contemporary public law scholarship on any proponents of the “Dynamic Court view” who contend aspect of American constitutionalism. that “courts can effectively produce significant social change.”21 Rosenberg notes that constitutional provisions intended to freeze past political commitments are poor “The Flowers that Bloom vehicles for justifying progressive reform. As did Tocque- in the Spring” ville, Rosenberg regards law as more often a conservative The past twenty years have witnessed a flowering of force than a means for challenging relatively enduring social constitutional scholarship
Load more

Recommended publications
  • The Early Years of First Amendment Lochnerism
    COLUMBIA LAW REVIEW VOL. 116 DECEMBER 2016 NO. 8 ARTICLES THE EARLY YEARS OF FIRST AMENDMENT LOCHNERISM Jeremy K. Kessler* From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First *. Associate Professor and Milton Handler Fellow, Columbia Law School. FoR conversation and counsel along the way,
    [Show full text]
  • Murray N. Rothbard: Mr. Libertarian
    Murray N. Rothbard: Mr. Libertarian di Wendy McElroy Murray N. Rothbard (1926-1995) – the greatest libertarian theorist of the 20th century – expressed what he considered to be the central political issue confronting mankind. He wrote, “My own basic perspective on the history of man...is to place central importance on the great conflict which is eternally waged between Liberty and Power.”1 Liberty v. Power. In its most blatant form, the struggle manifests itself as war between the peaceful, productive individual and the intrusive State that usurps those products. The tension between freedom and authority is hardly a new subject for political commentary. But Rothbard managed to bring a newness to everything he touched intellectually. Rothbard was a system builder. Unsatisfied with past attempts to present a “philosophy of freedom,” Rothbard sought to create an interdisciplinary system of thought that used the struggle between Liberty and Power as its integrating theme. He explained, “Strands and remnants of libertarian doctrines are, indeed, all around us. ... But only libertarianism takes these strands and remnants and integrates them into a mighty, logical, and consistent system.”2 Without such a systematic world view, he believed Liberty could not succeed. In forty-five years of scholarship and activism, Rothbard produced over two dozen books and thousands of articles that made sense of the world from a radical individualist perspective. In doing so, it is no exaggeration to say that Rothbard created the modern libertarian movement.3 Specifically, he refined and fused together: • natural law theory, using a basic Aristotelian or Randian approach; • the radical civil libertarianism of 19th century individualist-anarchists, especially Lysander Spooner and Benjamin Tucker; • the free market philosophy of Austrian economists, in particular Ludwig von Mises, into which he incorporated sweeping economic histories; and, • the foreign policy of the American Old Right – that is, isolationism.
    [Show full text]
  • Libertarian Corporatism Is Not an Oxymoron
    ROGERS.TOPRINTER (DO NOT DELETE) 6/14/2016 5:06 PM Libertarian Corporatism is Not an Oxymoron Brishen Rogers* Introduction Our constitutional democracy and our republican form of government, Joseph Fishkin and William Forbath argue in their recent work, depend on “a measure of economic and social democracy.”1 A truly democratic state, in their view, cannot just regulate powerful actors. It must also enable or positively encourage “robust intermediate organizations,” especially unions, to “offset the political power of concentrated wealth.”2 The history of the welfare state bears out this point. It is no accident that the era of mass unionization was also an era of quite progressive taxation, relatively tame executive compensation, and definancialization.3 Nor is it an accident that the decline of the welfare state, the decline of the labor movement, and the rise in income inequality have occurred in tandem in virtually every advanced economy.4 Mainstream policy debate around inequality, which focuses largely on ensuring progressive taxation, often misses this lesson.5 And yet empowering secondary associations can be very difficult in a constitutional culture that prizes individual liberty. It is not enough to just protect workers’ freedom to choose unionization while leaving other property relations intact,6 since economic elites will generally resist * Associate Professor, Temple University Beasley School of Law, [email protected]. The research leading up to this Essay was supported in part by the Roosevelt Institute’s Future of Work Initiative. For helpful comments and conversations, thanks to Willy Forbath, Joey Fishkin, and participants in the Texas Law Review Symposium on the Constitution and Economic Inequality.
    [Show full text]
  • Vita February 2004
    GORDON LLOYD VITA FEBRUARY 2004 Gordon Lloyd School of Public Policy 23924-A De Ville Way Pepperdine University Malibu, CA 90265 Malibu, CA 90263 310-456-8359 310-506-7602 [email protected] [email protected] Citizenship: U.S.A. FAX: 310-506-7120 CURRENT POSITION Professor of Public Policy, School of Public Policy, Pepperdine University, 1998-present. John M. Olin Professor of Public Policy, 1999-2000. EDUCATION AND CERTIFICATION Ph.D., Claremont Graduate School, Department of Government, 1973 (Distinction). M.A., Claremont Graduate School, Department of Government, 1968. University of Chicago, Department of Economics 1963-65, Summer 1967 (Completed coursework for Ph.D. and M.A. Thesis in Economics). B.A., McGill University, Montreal, Economics and Political Science, 1963 (Honors Program). Pre-University: 1946-1960, Trinidad, West Indies (Cambridge Ordinary and Advanced Levels). California Community College Instructor Credential: Economics and Government (Valid for life). TEACHING EXPERIENCE Professor of Public Policy, Pepperdine University, 1997-present. Adjunct Professor of Political Science and Economics, San Bernardino Community College District, 1976- present. (Emphasis on Distance Education.) Professor, Associate Professor, Assistant Professor of Government, University of Redlands, 1969-1998. Visiting Professor of Political Science, University of California, Riverside, Spring 1998. Visiting Professor of Political Science, California State University, San Bernardino, 1990-1992. Instructor in American History, Damien High
    [Show full text]
  • The Puzzle of Social Movements in American Legal Theory
    THE PUZZLE OF SOCIAL MOVEMENTS IN AMERICAN LEGAL THEORY Scott L. Cummings∗ In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, this Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics. This problem erupted as an intellectual crisis after Brown v. Board of Education asserted a model of social change through law—what scholars termed “legal liberalism”—that placed courts and lawyers in the lead of progressive movements. In the decades following Brown, legal liberalism provoked a forceful reaction by progressives who viewed court and lawyer activism as illegitimate and counterproductive. A core contribution of this Article is to show how contemporary scholars have responded to the decline of legal liberalism by developing a competing model—“movement liberalism”—that assigns leadership of transformative legal change to social movements in order to preserve traditional roles for courts and lawyers.
    [Show full text]
  • Copyright by Robert Allen Garmong 2002
    Copyright by Robert Allen Garmong 2002 This Dissertation Committee for Robert Allen Garmong certifies that this is the approved version of the following dissertation: J.S. Mill’s Re-Conceptualization of Liberty Committee: ________________________ Daniel Bonevac, Supervisor ________________________ David Braybrooke ________________________ Robert Solomon ________________________ Robert Kane ________________________ Richard Cherwitz J.S. MILL’S RE-CONCEPTUALIZATION OF LIBERTY by Robert Allen Garmong, B.A. Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the requirements for the Degree of Doctor of Philosophy The University of Texas at Austin December, 2002 To my parents: To John R. Garmong, without whose moral and material support this dissertation could not have been completed, and To Janis R. Garmong, who taught me to ask questions J.S. MILL’S RE-CONCEPTUALIZATION OF LIBERTY Publication No. _________________ Robert Allen Garmong, Ph.D. The University of Texas at Austin, 2002 Supervisor: Daniel Bonevac In this dissertation, I argue that John Stuart Mill does not defend a classical liberal, Lockean idea of liberty as freedom from coercion, especially governmental coercion. Rather, I argue that Mill has something much more radical in mind: for Mill, liberty requires freedom from the much broader idea of “the moral coercion of public opinion.” Mill’s so-called “harm principle,” which is at the root of his defense of liberty, is often common-sensically interpreted according to what I term the political interpretation of the harm principle. On the political interpretation the harm principle is intended to restrict the use of coercion, especially governmental coercion.
    [Show full text]
  • Stanford Encyclopedia of Philosophy) Stanford Encyclopedia of Philosophy Freedom of Speech
    03/05/2017 Freedom of Speech (Stanford Encyclopedia of Philosophy) Stanford Encyclopedia of Philosophy Freedom of Speech First published Fri Nov 29, 2002; substantive revision Mon May 1, 2017 This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first and best defenses of free speech, based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle. 1. Introduction: Boundaries of the Debate 2. The Harm Principle and Free Speech 2.1 John Stuart Mill's Harm Principle 2.2 Mill's Harm Principle and Pornography 2.3 Mill's Harm Principle and Hate Speech 2.4 Responses to the Harm Principle 3. The Offense Principle and Free Speech 3.1 Joel Feinberg's Offense Principle 3.2 Pornography and the Offense Principle 3.3 Hate Speech and the Offense Principle 4. Democracy and Free Speech 4.1 Democratic Citizenship and Pornography 4.2 Democratic Citizenship and Hate Speech 4.3 Paternalistic Justification for Limiting Speech 5. Back to the Harm Principle 6. Conclusion Bibliography Academic Tools Other Internet Resources Related Entries 1. Introduction: Boundaries of the Debate The topic of free speech is one of the most contentious issues in liberal societies.
    [Show full text]
  • The Transformation of Freedom of Speech: Unsnarling the Twisted Roots of Citizens United V
    UIC Law Review Volume 44 Issue 1 Article 2 Fall 2010 The Transformation of Freedom of Speech: Unsnarling the Twisted Roots of Citizens United v. FEC, 44 J. Marshall L. Rev. 69 (2010) Steven J. André Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Business Organizations Law Commons, Constitutional Law Commons, Election Law Commons, First Amendment Commons, Jurisprudence Commons, Law and Philosophy Commons, Law and Politics Commons, Law and Society Commons, and the Public Law and Legal Theory Commons Recommended Citation Steven J. André, The Transformation of Freedom of Speech: Unsnarling the Twisted Roots of Citizens United v. FEC, 44 J. Marshall L. Rev. 69 (2010) https://repository.law.uic.edu/lawreview/vol44/iss1/2 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE TRANSFORMATION OF FREEDOM OF SPEECH: UNSNARLING THE TWISTED ROOTS OF CITIZENS UNITED V. FEC STEVEN J. ANDRi* I. INTRODUCTION The roots of the conflict represented by the positions of the majority and minority opinions in Citizens United v. FEC lie hidden-embedded in the debris of a fundamental change in the legal treatment of rights that occurred almost a century ago. The conflict is the product of a basic shift in liberal perspective in reaction to the rise of wealthy and powerful industrial magnates following the Civil War. The intellectual legacy that accompanied this shift resulted from the impact of Progressive thinking that rose to the fore after the War Between the States.
    [Show full text]
  • Civil Liberties Outside the Courts Laura Weinrib
    University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2015 Civil Liberties Outside the Courts Laura Weinrib Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Laura Weinrib, "Civil Liberties Outside the Courts" (Public Law and Legal Theory Working Paper No. 492, 2015) available at http://ssrn.com/abstract=2507331.. This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 492 CIVIL LIBERTIES OUTSIDE THE COURTS Laura M. Weinrib THE LAW SCHOOL THE UNIVERSITY OF CHICAGO October 2014 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection. CIVIL LIBERTIES OUTSIDE THE COURTS Laura M. Weinrib Forthcoming, Supreme Court Review (2015) This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories.
    [Show full text]
  • Scienter, Causation, and Harm in Freedom of Expression Analysis: the Right Hand Side of the Constitutional Calculus
    William & Mary Bill of Rights Journal Volume 13 (2004-2005) Issue 1 Article 4 October 2004 Scienter, Causation, and Harm in Freedom of Expression Analysis: The Right Hand Side of the Constitutional Calculus Wilson Huhn Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the First Amendment Commons, and the Torts Commons Repository Citation Wilson Huhn, Scienter, Causation, and Harm in Freedom of Expression Analysis: The Right Hand Side of the Constitutional Calculus, 13 Wm. & Mary Bill Rts. J. 125 (2004), https://scholarship.law.wm.edu/wmborj/vol13/iss1/4 Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj SCIENTER, CAUSATION, AND HARM IN FREEDOM OF EXPRESSION ANALYSIS: THE RIGHT HAND SIDE OF THE CONSTITUTIONAL CALCULUS Wilson Huhn* But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction,if the particularrestriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.' INTRODUCTION Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional.' Instead, to determine the constitutionality of laws restricting expression, the Court has turned to a balancing approach, which requires the Court to balance the value of freedom of expression against the harm to be prevented.3 The more that a law closes off opportunities * B.A.
    [Show full text]
  • Prostitution As a Matter of Freedom
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by LUISSearch Prostitution as a matter of freedom PhD Thesis By Annalisa Chirico LUISS Guido Carli University Department of Political Science PhD Program in Political Theory – XXVII cycle Supervisor: Prof. Sebastiano Maffettone Co-Supervisor: Prof. Ingrid Salvatore Prostitution as a matter of freedom Index Introduction Chapter one Politics of prostitution Italy 1.1 Prostitution at the time of Réglementation 1.2 Post-Unitarian regulation 1.3 Merlin Law and the “open-pit” brothel 1.4 Prohibitionist revival Austria 1.5 Historical Path 1.6 “Positive” regulation Netherlands 1.7 A story of tolerance 1.8 From Napoleonic regulation to abolitionism 1.9 De Wallen and the Project 1012 The Arab model 1.10 Overview 1.11 The main tenets around “Beghaa” 1.12 Tunisian exception 1.13 Saudi Arabia 1.14 Punishment Chapter two Theoretical perspectives 2.1 Premise 2.2 Black swan 2.3 False consciousness 1 2.4 Fatal conceit 2.5 A pinch of paternalism 2.6 Mill and the “third way” 2.7 Libertarian view 2.8 Defending prostitution 2.9 Porno dilemma Chapter three Exploitation 3.1 Premise 3.2 Picture of a crime 3.3 Immigration and black market in Austria 3.4 The betrayal of regulation 3.5 The Dutch case 3.6 Harm reduction principle Chapter four The floor to sex workers 4.1 Sex workers as an interest group 4.2 The Global Network 4.3 The French STRASS 4.4 The Italian Committee for Prostitutes’ Civil Rights Conclusion Bibliography 2 Introduction Can prostitution be conceived as a “desirable” profession, i.e.
    [Show full text]
  • The Puzzle of Social Movements in American Legal Theory Scott L
    The Puzzle of Social Movements in American Legal Theory EVIEW R Scott L. Cummings ABSTRACT LA LAW LA LAW UC In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, the Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics. AUTHOR Robert Henigson Professor of Legal Ethics and Professor of Law, UCLA School of Law. For invaluable feedback on this project, I am grateful to Richard Abel, Catherine Albiston, Anthony Alfieri, Sameer Ashar, Leo Beletsky, Devon Carbado, Paola Cecchi Dimeglio, Rashmi Dyal-Chand, Ingrid Eagly, Steve Ellman, Nora Engstrom, Peter Enrich, Laurel Fletcher, Jody Freeman, Duncan Kennedy, Máximo Langer, Frank Munger, Sasha Natapoff, Doug NeJaime, Pricilla Ocen, Russell Pearce, Nick Robinson, James Rowan, Ben Sachs, Chris Schmidt, Jeff Selbin, Bill Simon, David Trubek, Louise Trubek, Michael Waterstone, Lucie White, David Wilkins, and Noah Zatz.
    [Show full text]