Infant mortality and concepts of hygiene. Strategies and consequences in the Kaiserreich and the Weimar Republic: the example of Berlin

The fight against infant mortality followed the guidelines of “hygiene” and their modifications into social, racial, and national hygiene. In Berlin, the campaign to promote infant hygiene began in 1904, when the municipal authorities started to create infant care centers tentatively under the auspices of a charitable association. During and after the First World War, the authorities expanded this campaign to reflect a growing commitment to the principles of social and racial hygiene, which aimed both to improve social conditions that worked against the health of children and to strengthen the constitution of the race. While racial hygienists feared that social measures for the weak would promote degeneration by encouraging their survival, social hygienists argued that it was impossible to distinguish between “fit” and “unfit” in early childhood, and eugenics became increasingly important. Social hygiene as a means of prevention was reduced to a “systematical registration” of the more or less fit individuals. This development and the eugenic background of infant care created a link to the concept of selection in Nazi Germany.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective*

We discuss uses of social science definitions and research methods in judging compliance with the recently modified language of Section 2 of the Voting Rights Act. That Act now specifies a “totality of circumstances” effects lest for the existence of racial vote dilution. There are seven “typical” factors listed by the Senate Committee on the Judiciary in its report on the 1982 Voting Rights extension as among those which may be used to establish a Section 2 violation. Because of the nature of these factors, extensive (and often conflicting) testimony by social scientists has now become an inescapable feature of Section 2 litigation. We focus particular attention on one of the seven factors, racially polarized voting, because measurement of it is, as judged by recent litigation, the most controversial, the most complex, and the most important. We also discuss at some length another factor, racial campaign appeals, which also raises issues of appropriate definition and measurement. The aim of this paper is to contribute to a standardization of terminology and operationalization in an important public policy area, and to show how social science methodology can assist legal fact-finding.     

Does Racial Balance in Workforce Representation Yield Equal Justice? Race Relations of Sentencing in Federal Court Organizations*

Increasing racial and ethnic group representation in justice‐related occupations is considered a potential remedy to racial inequality in justice administration, including sentencing disparity. Studies to date yield little evidence of such an effect; however, research limitations may account for the mixed and limited evidence of the significance of justice workforce racial diversity. Specifically, few studies consider group‐level dynamics of race and representation, thus failing to contextualize racial group power relations in justice administration. To consider these contextual dynamics we combine court organizational and case‐level data from 89 federal districts and use hierarchical models to assess whether variably “representative” work groups relate to district‐level differences in sentencing. Using district‐specific indexes of population and work group dissimilarity to define representation, we find no relationships between black judge representation and sentencing in general across districts, but that districts with more black representation among prosecutors are significantly less likely to sentence defendants to terms of imprisonment. We also find in districts with increased black representation among prosecutors, and to a lesser degree among judges, that black defendants are less likely to be imprisoned and white defendants are more likely to be imprisoned, with the effect of narrowing black‐white disparities in sentencing. Consistent with the “power‐threat” perspective, and perhaps “implicit racial bias” research, findings encourage modeling diversity to account for relative racial group power in processes of social control and suggest that racial justice may be moderately advanced by equal representation among authorities.     

Blinded by Sight: The Racial Body and the Origins of the Social Construction of Race

Osagie K. Obasogie's Blinded by Sight: Seeing Race through the Eyes of the Blind (2014) makes important contributions to both to the sociology of law and to critical race studies. The book challenges “colorblind” racial ideology by showing empirically that people who are blind from birth nevertheless “see” race, grasping it as a nearly omnipresent feature of social interaction and social organization. These insights, however, do not diminish the importance of the racial body. Beyond refuting colorblindness, Obasogie's book points to a neverending tension, embedded in what we call racial formation, between the social construction of race and the corporeality of race. This tension has been present since the dawn of empire and African slavery. Obasogie's achievement of falsifying colorblindness should not lead us to neglect the importance of the racial body.     

Reflections on a Funhouse Mirror—Racist Violence,the Protection of Privilege,and the Limits of Tolerance

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.     

Intersectional Coalitions: The Paradoxes of Rights‐Based Movement Building in LGBTQ and Immigrant Communities

Over the past decade, inter‐ and intra‐movement coalitions composed of organizations within the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) and immigrant rights movements have formed at the local level. These coalitions speak to a massive organizing effort that has achieved some rights campaign successes. However, coalition unity that culminated in “wins” like marriage equality came at a cost. While both movements expanded and unified, they simultaneously ossified around goals that matter to the most privileged segments of their respective communities. The result is a paradox: coalitions do sometimes form within and across movements, promote enduring unity across seemingly divergent movements, and facilitate rights campaign “wins.” However, coalitions simultaneously reinforce hierarchical exclusions through the continued marginalization of issues that uproot conventional power dynamics, like police violence, economic inequality, and gender justice. This essay argues that the construction of a common “civil rights past” identity within coalitions can help to explain this paradox. The development of this collective identity expands movements, occasionally thwarting the power dynamics responsible for the centering of the interests of the most privileged constituencies within social movements. However, the episodic nature of rights‐based campaigns simultaneously contains and undermines the formation of this collective identity, reinforcing movement divisions based on race, gender, and class.     

How social movement organizations explicitly and implicitly promote deviant behavior: The case of the militia movement

The literature on social movements and deviance has failed to recognize that social movement organizations also promote deviance in society. This oversight stems from a tendency in the dominant paradigm of social movement theory to normalize the activities of these movements by equating their activities with political behavior. Focusing on the modern militia movement, we discuss the explicit and implicit paths through which movements promote deviance and/or criminal behavior. Noting that the movement has both a “defensive” and an “offensive” wing, we find that they promote deviance both through their ideology, which legitimizes deviance, and through their organizational structures, which are unable to control either the actions of those who are part of the movement or the flow of movement-generated information.     

Minors,gender, and family: The discourses in the court system of traditional Buenos Aires

The article deals with public attitudes toward family responsibility in early-nineteenth-century Bienos Aires, particularly as revealed in lawsuits occasioned by disputes over the custody of minors. The care and education of minors was ordinarily entrusted to parents, but death, incapacity, licentious conduct, poverty or abandonment often resulted in the minor being removed from parents and taken by others into custody of guardians or institutions of public welfare. The majority of the analyzed lawsuits resulted from an attempt by parents to recover their authority over their children. The lawsuits indicate that the racial, gender, social, and generational “disadvantages” of plaintiffs did not a priori determine the judgement, but rather that arguments for family stability frequently were decisive when heard by sympathetic judges. Disadvantages persons thus frequently argued sucessfully about the meaning of the family, as protagonists in the legal system that otherwise often marginalized them.     

The penology of racial innocence: the erasure of racism in the study and practice of punishment

In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.     

Toward a New Legal History of Capitalism and Unfree Labor: Law,Slavery, and Emancipation in the American Marketplace

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.     

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong “planned” nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of China's particular version of the “rule of law.”     

Trapped in Resistance: Collective Struggle through Welfare Fraud in Israel

This paper offers a qualitative empirical examination of the noncompliance of Israeli female welfare recipients with welfare laws and authorities. The paper demonstrates that their behavior, defined as “welfare fraud” by the law, is a limited form of collective resistance to the Israeli welfare state. Although the acts of welfare fraud that the women in my study engaged in entail a political claim against the state, the relationship between these acts and notions of collectivity is very constricted in form. The women's collectivity is shown to be constrained by the welfare authorities' invasive and pervasive investigation practices and methods. Due to fear of disclosure to the authorities, the women emerged as deliberately isolating themselves from their immediate environment and potential members of their like‐situated collective. This weakens the connection between the women's acts of resistance and their collectivity, and prevents their acts of resistance from driving social change, trapping them in their harsh conditions and existence.     

Legal History and the Problem of the Long Civil Rights Movement

This essay offers a critical examination of use of the term “long civil rights movement” as a framework for understanding the legal history of the battle against racial inequality in twentieth‐century America. Proponents of the long movement argue that expanding the chronological boundaries of the movement beyond the 1950s and 1960s allows scholars to better capture the diverse social mobilization efforts and ideas that fueled the black freedom struggle. While not questioning the long framework's usefulness for studying the social movement dynamics of racial justice activism, I suggest that the long framework is of more limited value for those who seek to understand the development of civil rights, as a legal claim, particularly in the first half of the twentieth century. The tendency of long movement scholars to treat civil rights as a pliable category into which they can put any and all racial justice claims is in tension with historical understandings of the term. Susan Carle's Defining the Struggle: National Organizing for Racial Justice, 1880–1915 suggests an alternative approach. Her detailed and nuanced account of a period in American history when racial justice activists understood civil rights as a relatively narrow subset of legal remedies within a much broader struggle for racial equality indicates the need for an alternate history of civil rights—one that places the evolving, contested, and historically particularized concept of civil rights at the center of inquiry.     

Interpreting “Percent Black”

Abstract

Time series analysis is employed to assess the relationship between “percent Black” and violent crime in Washington D.C. over a 40-year period. Race-disaggregated violent crime arrest data are also examined. It is concluded that while there is some indication of a positive relationship between violent crime and “percent Black” over time, that relationship is not robust when disaggregated by race and crime type and may be limited to Black robbery offending. Further, it appears that “percent Black” may be serving as a proxy for other social problems. An exploration of possible correlates of racial disparity in violent arrests suggests that they are associated with a variety of factors, including social problems and their disparities.     

“Fitting in” and “opting out”: exploring how law students self-select law firm employers

In this paper we draw on interviews with 15 law students at the University of Birmingham in the UK to explore the extent to which law students critically self-evaluate themselves against their perceptions of the preferences of elite law firms. While our conclusions are necessarily tentative, we show how some law students “opt out” of applying to certain law firms where they perceive there is no fit between themselves and that law firm. Equally, our data also shows that some students recognise that, despite not having a supplementary fit with a firm (i.e. they can see that they do not “match” that firm’s current crop of lawyers or what they think is the firm’s culture), they realise that they can instead be a complementary fit for the firm, and hence realise that their potential to add something “new” to the law firm (by way of increasing diversity) can secure them a vacation scheme placement or a training contract. Finally, a proportion of students play “the numbers game” and despite determining a law firm “misfit”, still proceed to apply to as many law firms as possible as they thought that more applications meant a higher chance of success.     

Legal Aid,Social Workers,and the Redefinition of the Legal Profession in Chile, 1925–1960

This article examines the history of the Chilean Legal Aid Service (Servicio de Asistencia Judicial) from the 1920s until the 1960s. It argues that with the emergence of the “social question”—the concern for improving the lower classes' working and living conditions to promote the nation's modernization and prevent political radicalization—the Chilean legal profession committed to legal aid reform to escape a professional identity crisis. Legal aid allowed lawyers to claim they had a new “social function” advocating on behalf of the poor. However, within legal aid offices, lawyers interacted with female social workers who acted as gatekeepers, mediators, and translators between the lawyers and the poor. This gendered professional complementarity in legal aid offices helped lawyers to put limits on their new “social function”: it allowed them to maintain legal aid as a part‐time activity that did not challenge the structure of the legal system as a whole.     

Campaigns and the Selection of Policy-Seeking Representatives

Can voters learn meaningful information about candidates from their electoral campaigns? As with job market hiring, voters, like employers, cannot know the productivity of candidates, especially challengers, when they elect them. The real productivity of representatives only reveals itself after the election. We explore if the information revealed during the “hiring process” is a good signal of the legislative effort of elected representatives. In the incomplete information environment of election campaigns, candidates should turn to credible signals to indicate their “type” to voters. Campaigns—and campaigning—are means by which candidates can, in principle, signal their motivations to voters. Is a candidate’s behavior on the campaign trail informative about his or her behavior and effort as a legislator? Does it, for example, reveal whether a candidate will be more hard working and legislatively active? Using evidence from the European Parliament, we show that campaign activity prior to the election is not related to policy-seeking behavior in the legislature post-election. The finding also holds in two national-level settings and across a variety of measures of legislative effort. Those who campaign harder do seem more likely to win the election, but campaign effort seems to provide a poor guide to what the winner does once elected.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

The Humdrum of Legality and the Ordering of an Ethic of Care

This paper provides an ethnographic analysis of the ways that employees of an emergency shelter create and maintain order. The paper applies the framework of legal consciousness to explicate the practices of the employees that amount to “private ordering.” The employees administer the rules of the shelter in the context of an “ethic of care,” but one that is outside the purview of formal law. This ethic, however, is polysemic, and the employees, therefore, must adopt diverse styles based on their understandings of their professional roles regarding the needs of the clients. The practices of two employees are highlighted in detail, whose strategies in applying and maintaining adherence to shelter rules are at the opposite ends of the spectrum. Both make decisions in a somewhat spontaneous and, more importantly, inconsistent, fashion. Despite the complications that arise from applying the rules as such, the employees tolerate, even laud and celebrate, these methods. While this system of private ordering has little resemblance to the ordered, consistent, and rigid application of formal law, it allows the employees to administer diverse strategies of ethics of care and shape practices to fit their professional roles and the complex exigencies of an emergency shelter. The paper locates the extant private ordering not in the law, nor in its shadow—assumed to be preconditions—but outside or beyond them. Given that this ordering is founded against the law—it is not law, nor law‐like and has no desire to so be—the paper suggests that it can be thought of as private ordering proper and lays the framework for theorization that accounts for its instrumental and symbolic dimensions.