Framework for Analysis of Legal Mobilization: A Decision-Making Model

The American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law on his or her own behalf Without discounting the contribution to our understanding of legal mobilization which has been made by the access-to-justice movement, the author argues that focusing on the poor and the distribution of legal services has limited our understanding of the legal system.
The article presents an alternative analytic framework for examination of citizen use of the law. The model of legal mobilization presented focuses on demands rather than needs, on citizens rather than lawyers or judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawing on the literature and available empirical evidence, the author attempts to analytically clarify the complex process of legal mobilization by organizing relevant variables into a decision-making model that focuses on the individual actor and the factors weighed in deciding whether and how to proceed in mobilizing the law.     

Legal Mobilization and Analogical Legal Framing: Feminist Litigators’ Use of Race–Gender Analogies

We investigate how cause lawyers articulate their demands in court. We do so by examining feminist legal briefs submitted in US Supreme Court cases from 1970 to the present, specifically focusing on the use of race–gender analogical legal framing. We explore the frequency and trends in the use of such arguments as well as the forms these arguments take, including how race–gender analogies parallel frame bridging and transformation. Additionally, we also investigate why activists choose to deploy race–gender analogies in their legal framing and discern that different political, legal, and social contexts can produce different uses of the race–gender analogy.     

马萨诸塞州诉美国联邦环保局案的述评

马萨诸塞州诉美国联邦环保局案是美国第一件具有里程碑意义的气候变化公益诉讼案件,该案体现了美国各州和民间力量通过公民诉讼方式促进政府采取温室气体减排行动的艰巨努力。该案从联邦上诉法院一审到联邦最高法院再审,始终存在较大争议,其中关于原告诉讼资格的争议更是人声鼎沸。在联邦最高法院判决中,原告仅以微弱优势胜诉。尽管关于原告胜诉的理由仍有颇多争议,但该案在明确温室气体属于《清洁空气法》的调整范围、拓展气候变化公民诉讼原告的诉讼资格以及确立公民诉讼可以促进政府采取减排行动等方面,都具有非常积极的意义。     

Queer Legal History: A Field Grows Up and Comes Out

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.     

Requirement‐Sensitive Legal Moralism: A Critical Assessment

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed.     

Mobilizing Doubt: The Legal Mobilization of Climate Denialist Groups

The climate change countermovement (CCCM) deploys a broad repertoire of tactics in its effort to cast doubt on the science of climate change. One important yet understudied tactic is the effort by CCCM groups to use open records laws in scientifically uncertain areas to cast doubt on the accuracy of scientific information. This article explores the use of this tactic by CCCM groups and adds to the legal mobilization literature in three ways. First, it traces the origin of CCCM groups to the broader conservative legal movement of the 1970s that challenged the dominance of the liberal legal network. Second, it shows how CCCM groups waged an open records campaign against climate scientists in Virginia and Arizona, causing scientists to countermobilize by organizing their own legal campaigns. Finally, this article provides the first empirical evidence of the effect of CCCM Freedom of Information Act suits on the activities of university researchers. I find, through in‐depth personal interviews with twelve university researchers, that the experience of researchers who have been exposed to open records campaigns has been overwhelmingly negative, has caused them to change their methods of communication, and has imposed a new work burden that draws them away from other work responsibilities. I argue that the costs of these tactics are narrowly borne by a concentrated group of scientists whose production of knowledge is a public good that allows us to address the crosscutting and relentless problem of climate change.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

Lochner v. New York and the Challenge of Legal Historiography

This essay reviews three works addressing the famous case Lochner v. New York: David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers (1992); and Victoria Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights” (2009). The author argues that a comparison of these three works raises historiographic issues relating to legal historians’ deployment of assumptions about the continuity of legal development, the role of key actors or social forces, and the autonomy of legal development in relation to other societal events. Further, the essay argues that there is a tendency toward “law school historiography,” referring to the selection of historiographic approach to suit a preconceived jurisprudential narrative that appears when the subject is the history of legal and, especially, constitutional doctrine.     

Citizenship of the European Union—A Legal Analysis

Abstract:  The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.     

Toward the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. v. Spain

This article identifies the factors that contribute to the successful implementation of intersectionality in European multilevel legal praxis through the analysis of the case B.S. v. Spain. Combining critical legal analysis of the main judicial documents with qualitative methodology from political science based on in‐depth interviews with key actors involved in the case, we uncover the obstacles and opportunities existing at the national and supra‐national levels for the implementation of intersectionality. We decipher the factors contributing to the exceptional success of this case through the conjoint analysis of macro, meso, and micro levels. Our analysis shows that a combination of the legal provisions, paradigms and structures, the roles of the different actors involved, and the applicant's subjective position made it possible to put intersectionality in practice. This study provides novel empirical evidence that contributes to advancing the theoretical debate about intersectionality implementation in the multilevel European context.     

Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers

Street‐level bureaucratic theory is now at a fairly mature stage. The focus on street‐level bureaucrats as ultimate policymakers is now as familiar as it is important. Likewise, the parallel sociolegal study of the implementation of public law in public organizations has demonstrated the inevitable gap between law‐in‐the‐books and law‐in‐action. Yet, the success of these advances comes at the potential cost of us losing sight of the importance of law itself. This article analyzes some empirical data on the decision making about one legal concept—vulnerability in UK homelessness law. Our analysis offers two main contributions. First, we argue that, when it comes to the implementation of law, the legal abilities and propensities of the bureaucrats must be taken into account. Bureaucrats' abilities to understand legal materials make a difference to the likelihood of legal compliance. Second, we must also pay attention to the character of the legal provisions. Where a provision is simple, it is more likely to facilitate legal knowledge and demands nothing of bureaucrats in terms of legal competence. Where the provision is also inoffensive and liveable, it is less likely to act as an impediment to legal conscientiousness.