Cultural Lives of Law

Tort law, a fundamental building block of every legal system, features prominently in mass culture and political debates. As this pioneering anthology reveals, tort law is not simply a collection of legal rules and procedures, but a set of cultural responses to the broader problems of risk, injury, assignment of responsibility, compensation, valuation, and obligation. Examining tort law as a cultural phenomenon and a form of cultural practice, this work makes explicit comparisons of tort law across space and time, looking at the United States, Europe, and Asia in the nineteenth, twentieth, and twenty-first centuries. It draws on theories and methods from law, sociology, political science, and anthropology to offer a truly interdisciplinary, pathbreaking view. Ultimately, tort law, the authors show, nests within a larger web of relationships and shared discursive conventions that organize social life.

Carol Weisbrod is Ellen Ash Peters Professor of Law at the University of Connecticut. She is the author of The Boundaries of Utopia and Butterfly, the Bride and coauthor of a casebook on Family Law. From outlawing polygamy and mandating public education to protecting the rights of minorities, the framing of group life by the state has been a subject of considerable interest and controversy throughout the history of the United States. The subject continues to be important in many countries. This book deals with state responses to cultural difference through the examination of a number of encounters between individuals, groups, and the state, in the United States and elsewhere. The book opens the concepts of groups and the state, arguing for the complexity of their relations and interpenetrations. Carol Weisbrod draws on richly diverse historical and cultural material to explore various structures that have been seen as appropriate for adjusting relations between states and internal groups. She considers the experience of the Mormons, the Amish, and Native Americans in the United States, the Mennonites in Germany, and the Jews in Russia to illustrate arrangements and accommodations in different times and places. The Minorities Treaties of the League of Nations, political federalism, religious exemptions, nonstate schools, and rules about adoption are among the mechanisms discussed that sustain cultural difference and create frameworks for group life, and, finally, individual life. At bottom, Emblems of Pluralism concerns not only relations between the state and groups, public and private, but also issues of identity and relations between the self and others. "In this rich and wide-ranging book, the reader is likely to encounter some stories that are thought-provoking, some of that were previously unfamiliar, and some that put old disputes in a new light."---Keith E. Whittington, The Law and Politics Book Review "This is an impressive, at times magisterial, book. It provides an unusually sophisticated argument about relations among groups, the state, and law. Forging connections among subjects usually left unconnected, Weisbrod brings together the vertical and horizontal dimensions of the argument about cultural difference and the law. She provides a compelling read and a panoramic view of what she calls the 'negotiation of social uncertainties' that is at the heart of the question of pluralism."-Austin Sarat, author of When the State Kills "Emblems of Pluralism is an imaginative and thought-provoking study. Weisbrod sensitively examines differing views of the relationship between the state and the groups and communities that shape our experience of everyday life. Navigating between prominent and obscure historical figures and between landmark Supreme Court decisions and little-known cases, this important book challenges the reader to reconsider conventional ideas about pluralism and the law."-David Engel, Director, Christopher Baldy Center for Law and Social Policy, SUNY Buffalo

One of the hallmark features of the post–civil rights United States is the reign of colorblindness over national conversations about race and law. But how, precisely, should we understand this notion of colorblindness in the face of enduring racial hierarchy in American society? In Letters of the Law, Sora Y. Han argues that colorblindness is a foundational fantasy of law that not only informs individual and collective ideas of race, but also structures the imaginative capacities of American legal interpretation. Han develops a critique of colorblindness by deconstructing the law's central doctrines on due process, citizenship, equality, punishment and individual liberty, in order to expose how racial slavery and the ongoing struggle for abolition continue to haunt the law's reliance on the fantasy of colorblindness. Letters of the Law provides highly original readings of iconic Supreme Court cases on racial inequality-spanning Japanese internment to affirmative action, policing to prisoner rights, Jim Crow segregation to sexual freedom. Han's analysis provides readers with new perspectives on many urgent social issues of our time, including mass incarceration, educational segregation, state intrusions on privacy, and neoliberal investments in citizenship. But more importantly, Han compels readers to reconsider how the diverse legacies of civil rights reform archived in American law might be rewritten as a heterogeneous practice of black freedom struggle.

How does the way we think and feel about the world around us affect the existence and administration of the death penalty? What role does capital punishment play in defining our political and cultural identity? After centuries during which capital punishment was a normal and self-evident part of criminal punishment, it has now taken on a life of its own in various arenas far beyond the limits of the penal sphere. In this volume, the authors argue that in order to understand the death penalty, we need to know more about the "cultural lives"-past and present-of the state's ultimate sanction. They undertake this "cultural voyage" comparatively-examining the dynamics of the death penalty in Mexico, the United States, Poland, Kyrgyzstan, India, Israel, Palestine, Japan, China, Singapore, and South Korea-arguing that we need to look beyond the United States to see how capital punishment "lives" or "dies" in the rest of the world, how images of state killing are produced and consumed elsewhere, and how they are reflected, back and forth, in the emerging international judicial and political discourse on the penalty of death and its abolition. Contributors: • Sangmin Bae • Christian Boulanger • Julia Eckert • Agata Fijalkowski • Evi Girling • Virgil K.Y. Ho • David T. Johnson • Botagoz Kassymbekova • Shai Lavi • Jürgen Martschukat • Alfred Oehlers • Judith Randle • Judith Mendelsohn Rood • Austin Sarat • Patrick Timmons • Nicole Tarulevicz • Louise Tyler

International crime and justice are powerful ideas, associated with a vivid imagery of heinous atrocities, injured humanity, and an international community seized by the need to act. Through an analysis of archival and contemporary data, Imagining the International provides a detailed picture of how ideas of international crime (crimes against all of humanity) and global justice are given content, foregrounding their ethical limits and potentials. Nesam McMillan argues that dominant approaches to these ideas problematically disconnect them from the lived and the specific and foster distance between those who have experienced international crime and those who have not. McMillan draws on interdisciplinary work spanning law, criminology, humanitarianism, socio-legal studies, cultural studies, and human geography to show how understandings of international crime and justice hierarchize, spectacularize, and appropriate the suffering of others and promote an ideal of justice fundamentally disconnected from life as it is lived. McMillan critiques the mode of global interconnection they offer, one which bears resemblance to past colonial global approaches and which seeks to foster community through the image of crime and the practice of punitive justice. This book powerfully underscores the importance of the ideas of international crime and justice and their significant limits, cautioning against their continued valorization.

Laura Beth Nielsen is currently Research Fellow at the American Bar Foundation and will be Assistant Professor of Sociology and Law at Northwestern University beginning in the fall of 2006. She is the editor, with Robert L. Nelson, of Handbook of Employment Discrimination Research: Rights and Realities. Offensive street speech--racist and sexist remarks that can make its targets feel both psychologically and physically threatened--is surprisingly common in our society. Many argue that this speech is so detestable that it should be banned under law. But is this an area covered by the First Amendment right to free speech? Or should it be banned? In this elegantly written book, Laura Beth Nielsen pursues the answers by probing the legal consciousness of ordinary citizens. Using a combination of field observations and in-depth, semistructured interviews, she surveys one hundred men and women, some of whom are routine targets of offensive speech, about how such speech affects their lives. Drawing on these interviews as well as an interdisciplinary body of scholarship, Nielsen argues that racist and sexist speech creates, reproduces, and reinforces existing systems of hierarchy in public places. The law works to normalize and justify offensive public interactions, she concludes, offering, in essence, a "license to harass." Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate. "The author has written a compelling text that not only highlights the problem of offensive public speech experienced daily by ordinary citizens but broadens our understanding of this noxious issue."---Susan Fineran, American Journal of Sociology "Terrific! There are many powerful ideas in this book and they are presented in an elegant way that undergraduates can read easily and that mature scholars will appreciate."-Michael McCann, University of Washington "An important contribution to the scholarly debate on the effects of speech, the need for regulation, and individuals' reaction to and understanding of legal rules. It offers sophisticated insights that will intrigue Nielsen's academic audience, yet at the same time it is also blessedly free of specialized jargon, making it a well-written book that is accessible to undergraduates as well."-Steven B. Lichtman, Law and Politics Book Review

Due to the graphic nature of this program, viewer discretion is advised. Most of us have encountered this warning while watching television at some point. It is typically attached to a brand of reality crime TV that Paul Kaplan and Daniel LaChance call "crimesploitation": spectacles designed to entertain mass audiences by exhibiting "real" criminal behavior and its consequences. This book examines their enduring popularity in American culture. Analyzing the structure and content of several popular crimesploitation shows, including “Cops”, “Dog: The Bounty Hunter”, and “To Catch a Predator”, as well as newer examples like “Making a Murderer” and “Don't F**K with Cats”, Kaplan and LaChance highlight the troubling nature of the genre: though it presents itself as ethical and righteous, its entertainment value hinges upon suffering. Viewers can imagine themselves as deviant and ungovernable like the criminals in the show, thereby escaping a law-abiding lifestyle. Alternatively, they can identify with law enforcement officials, exercising violence, control, and "justice" on criminal others. “Crimesploitation” offers a sobering look at the depictions of criminals, policing, and punishment in modern America.

Mariana Valverde is Professor at the Centre of Criminology, University of Toronto, where she teaches social and legal theory. She is the author of Diseases of the Will, The Age of Light, Soap, and Water, and Sex, Power, and Pleasure. If knowledge is power, then the power of law can be studied through the lens of knowledge. This book opens up a substantive new area of legal research--knowledge production--and presents a series of case studies showing that the hybridity and eclecticism of legal knowledge processes make it unfruitful to ask questions such as, "Is law becoming more dominated by science?" Mariana Valverde argues that legal decision making cannot be understood if one counterposes science and technology, on the one hand, to common knowledge and common sense on the other. The case studies of law's flexible collage of knowledges range from determinations of drunkenness made by liquor licensing inspectors and by police, through police testimony in "indecency" cases, to how judges define the "truth" of sexuality and the harm that obscenity poses to communities. Valverde emphasizes that the types of knowledge that circulate in such legal arenas consist of "facts," values, and codes from numerous incompatible sources that combine to produce interesting hybrids with wide-ranging legal and social effects. Drawing on Foucaultian and other analytical tools, she cogently demonstrates that different modes of knowledge, and hence various forms of power, coexist happily. Law's Dream of a Common Knowledge underlines the importance of analyzing dynamically how knowledge formation works. And it helps us to better understand the workings of power and resistance in a variety of contemporary contexts. It will interest scholars and students from disciplines including law, sociology, anthropology, history, and science-and-technology studies as well as those concerned with the particular issues raised by the case studies. "The theme of this book is broad and its philosophic argument complex while the specific case study topics are quite narrow and cutting edge." "Law's Dream of a Common Knowledge is an important and novel contribution towards the development of a sociology of legal knowledge. . . . [It] is interesting, engaging and refreshing both in its thematology and its style."---Emmanuel Melissaris, The Law and Politics Book Review "Valverde's book calls attention to a host of oft-overlooked decisions that, taken together, bring slow but steady changes while amounting to subtle forms of control. . . . [T]his is an intriguing work."---Lynn Chancer, American Journal of Sociology "Law's Dream of a Common Knowledge is a very good book. It is theoretically ambitious, careful in its use of evidence, and persuasive in its claims. It succeeds admirably in contributing to both the sociology of legal knowledge and the study of deviance and its regulation. Moreover, it discusses some of the most interesting and controversial areas of legal regulation. Readers will find themselves moving easily between sophisticated discussions of topics ranging from obscenity and sexual preference to pub licensing. Valverde is an outstanding scholar who writes with great skill and mastery."-Austin Sarat, Amherst College, author of When the State Kills "Valverde's analysis is important and worthy because she deliberately focuses on the nonscientific and, often, nonexpert decisionmakers who, despite their lack of training or expertise, are responsible for the bulk of legal decisions, and thus legal 'knowledge.' Her approach, relentlessly empirical and resistant to generalization, yields a study that defies easy summary and is both conceptually and theoretically sophisticated."-Patricia Ewick, Clark University

Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice. Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech-the claims and responses that we make to one another in the name of the law-acts.

Better Left Unsaid is in the unseemly position of defending censorship from the central allegations that are traditionally leveled against it. Taking two genres generally presumed to have been stymied by the censor's knife-the Victorian novel and classical Hollywood film-this book reveals the varied ways in which censorship, for all its blustery self-righteousness, can actually be good for sex, politics, feminism, and art. As much as Victorianism is equated with such cultural impulses as repression and prudery, few scholars have explored the Victorian novel as a "censored" commodity-thanks, in large part, to the indirectness and intangibility of England's literary censorship process. This indirection stands in sharp contrast to the explicit, detailed formality of Hollywood's infamous Production Code of 1930. In comparing these two versions of censorship, Nora Gilbert explores the paradoxical effects of prohibitive practices. Rather than being ruined by censorship, Victorian novels and Hays Code films were stirred and stimulated by the very forces meant to restrain them.

"Check out that baby bump!" Online and print magazines, television shows, and personal blogs are awash with gossip and speculation about pregnant celebrities. What drives our cultural obsession with celebrity baby bumps? Pregnant with the Stars examines the American fascination with, and judgment of, celebrity pregnancy, and exposes how our seemingly innocent interest in "baby bumps" actually reinforces troubling standards about femininity, race, and class, while increasing the surveillance and regulation of all women in our society. This book charts how the American understanding of pregnancy has evolved by examining pop culture coverage of the pregnant celebrity body. Investigating and comparing the media coverage of pregnant celebrities, including Jennifer Garner, Angelina Jolie, Beyoncé Knowles, Kristen Bell, M.I.A., Jodie Foster, and Mila Kunis, Renée Cramer shows us how women are categorized and defined by their pregnancies. Their stories provide a paparazzi-sized lens through which we can interpret a complex set of social and legal regulations of pregnant women. Cramer exposes how cultural ideas like the "rockin' post-baby body" are not only unattainable; they are a means of social control. Combining cultural and legal analysis, Pregnant with the Stars uncovers a world where pregnant celebrities are governed and controlled alongside the recent, and troubling, proliferation of restrictive laws aimed at women in the realm of reproductive justice and freedom. Cramer asks each reader and cultural consumer to recognize that the seeing, judging, and discussion of the "baby bump" isn't merely frivolous celebrity gossip-it is an act of surveillance, commodification, and control.

This book takes a unique stance on a controversial topic: zoos. Zoos have their ardent supporters and their vocal detractors. And while we all have opinions on what zoos do, few people consider how they do it. Irus Braverman draws on more than seventy interviews conducted with zoo managers and administrators, as well as animal activists, to offer a glimpse into the otherwise unknown complexities of zooland. Zooland begins and ends with the story of Timmy, the oldest male gorilla in North America, to illustrate the dramatic transformations of zoos since the 1970s. Over these decades, modern zoos have transformed themselves from places created largely for entertainment to globally connected institutions that emphasize care through conservation and education. Zoos naturalize their spaces, classify their animals, and produce spectacular experiences for their human visitors. Zoos name, register, track, and allocate their animals in global databases. Zoos both abide by and create laws and industry standards that govern their captive animals. Finally, zoos intensely govern the reproduction of captive animals, carefully calculating the life and death of these animals, deciding which of them will be sustained and which will expire. Zooland takes readers behind the exhibits into the world of zoo animals and their caretakers. And in so doing, it turns its gaze back on us to make surprising interconnections between our understandings of the human and the nonhuman.

Diverse societies are now connected by globalization, but how do ordinary people feel about law as they cope day-to-day with a transformed world? Tort, Custom, and Karma examines how rapid societal changes, economic development, and integration into global markets have affected ordinary people's perceptions of law, with a special focus on the narratives of men and women who have suffered serious injuries in the province of Chiangmai, Thailand. This work embraces neither the conventional view that increasing global connections spread the spirit of liberal legalism, nor its antithesis that backlash to interconnection leads to ideologies such as religious fundamentalism. Instead, it looks specifically at how a person's changing ideas of community, legal justice, and religious belief in turn transform the role of law particularly as a viable form of redress for injury. This revealing look at fundamental shifts in the interconnections between globalization, state law, and customary practices uncovers a pattern of increasing remoteness from law that deserves immediate attention.

The U.S. Supreme Court decision in Roe v. Wade stands as a historic victory for abortion-rights activists. But rather than serving as the coda to what had been a comparatively low-profile social conflict, the decision mobilized a wave of anti-abortion protests and ignited a heated struggle that continues to this day. Picking up the story in the contentious decades that followed Roe, The Street Politics of Abortion is the first book to consider the rise and fall of clinic-front protests through the 1980s and 1990s, the most visible and contentious period in U.S. reproductive politics. Joshua Wilson considers how street level protests lead to three seminal Court decisions-Planned Parenthood v. Williams, Schenck v. Pro-Choice Network of Western N.Y., and Hill v. Colorado. The eventual demise of street protests via these cases taught anti-abortion activists the value of incremental institutional strategies that could produce concrete policy gains without drawing the public's attention. Activists on both sides ultimately moved-often literally-from the streets to fight in state legislative halls and courtrooms. At its core, the story of clinic-front protests is the story of the Christian Right's mercurial assent as a force in American politics. As the conflict moved from the street, to the courts, and eventually to legislative halls, the competing sides came to rely on a network of lawyers and professionals to champion their causes. New Christian Right institutions-including Pat Robertson's American Center for Law and Justice and the Regent University Law School, and Jerry Falwell's Liberty University School of Law-trained elite activists for their "front line" battles in government. Wilson demonstrates how the abortion-rights movement, despite its initial success with Roe, has since faced continuous challenges and difficulties, while the anti-abortion movement continues to gain strength in spite of its losses.

How has the modern conservative movement thrived in spite of the lack of harmony among its constituent members? What, and who, holds together its large corporate interests, small-government libertarians, social and racial traditionalists, and evangelical Christians? Raised Right pursues these questions through a cultural study of three iconic conservative figures: National Review editor William F. Buckley, Jr., President Ronald Reagan, and Supreme Court Justice Clarence Thomas. Examining their papers, writings, and rhetoric, Jeffrey R. Dudas identifies what he terms a "paternal rights discourse"-the arguments about fatherhood and rights that permeate their personal lives and political visions. For each, paternal discipline was crucial to producing autonomous citizens worthy and capable of self-governance. This paternalist logic is the cohesive agent for an entire conservative movement, uniting its celebration of "founding fathers," past and present, constitutional and biological. Yet this discourse produces a paradox: When do authoritative fathers transfer their rights to these well-raised citizens? This duality propels conservative politics forward with unruly results. The mythology of these American fathers gives conservatives something, and someone, to believe in-and therein lies its timeless appeal.

We live in an age where one person's judicial "activist" legislating from the bench is another's impartial arbiter fairly interpreting the law. After the Supreme Court ended the 2000 Presidential election with its decision in Bush v. Gore, many critics claimed that the justices had simply voted their political preferences. But Justice Clarence Thomas, among many others, disagreed and insisted that the Court had acted according to legal principle, stating: "I plead with you, that, whatever you do, don't try to apply the rules of the political world to this institution; they do not apply." The legitimacy of our courts rests on their capacity to give broadly acceptable answers to controversial questions. Yet Americans are divided in their beliefs about whether our courts operate on unbiased legal principle or political interest. Comparing law to the practice of common courtesy, Keith Bybee explains how our courts not only survive under these suspicions of hypocrisy, but actually depend on them. Law, like courtesy, furnishes a means of getting along. It frames disputes in collectively acceptable ways, and it is a habitual practice, drummed into the minds of citizens by popular culture and formal institutions. The rule of law, thus, is neither particularly fair nor free of paradoxical tensions, but it endures. Although pervasive public skepticism raises fears of judicial crisis and institutional collapse, such skepticism is also an expression of how our legal system ordinarily functions.