Prof. Douglas Reed
GOVT 441
Spring 1998
Georgetown University
Syllabus draft; page under construction; assignments subject to change

Courts, Rights and Social Movements



Course Objectives

This course examines how courts, legal ideologies and legal institutions shape the development of American social movements and other forms of mass collective action -- and vice versa. I have three broad goals for this course -- goals that are obviously too ambitious to resolve fully here. But we will try.

A primary goal of this course will be to describe and understand the legal strategies pursued by individuals seeking to build a social movement. Are their motives focused exclusively on courtrooms and judges? To what extent are they relying on a broader 'rights consciousness' within the set of American ideologies. Do these individuals build organizations that take advantage of legal opportunities -- or do they shun legal forms, and for what reasons? By trying to understand how -- and if -- legal institutions, law and rights consciousness influence the priorities, strategies and internal organizations of social movements, we can begin to understand both the obstacles and the opportunities that legal institutions present to groups and individuals seeking significant social and political change. An understanding of these obstacles and opportunities may help us understand when -- and if -- legal strategies are the proper recourse for movement activists. Seeing how social movement activists evaluate their alternatives, may help us understand the extent to which a rights consciousness is a necessary precondition for social change in the American context.

A closely related goal of this course is to explore how legal institutions, legal ideologies and legal actors themselves are changed by their engagement with social movements. Can the law remain independent of movements that challenge its very legitimacy? How does the law -- and the ideologies and individuals that comprise legal institutions -- respond to the stresses and demands that law-based efforts to effect social and political change place on them? Can we map these changes within the law as we follow the course of law-based social movements? If a social movement does produces changes in the law, but fails to alter the broader pattern of political and social power that gave rise to the social movement, can the movement be regarded as a success? To what extent is legal change synonymous with political change, and to what extent are the two distinct?

A third, but by no means tertiary, goal of the course is to arrive at some understanding of what rights mean in America. Is it always necessary to translate one's political interests or demands or needs into a language of rights in order to secure political victory in American life? How are rights undone? Why do some rights emerge as viable political claims at particular points in American history? Do claims for rights confuse or clarify underlying issues of power?

Texts and Readings and Web Resources

The following texts are required for the course and are available at the Leavey Center Bookstore:

Stuart Scheingold, The Politics of Rights
Mary Anne Glendon, Rights Talk
William Forbath, Law and The Shaping of the Labor Movement
Mark Tushnet, Making Civil Rights Law
Gerald Rosenberg, The Hollow Hope
Doug McAdam, Political Process and the Development of Black Insurgency, 1940-1970
Barbara Craig and David O'Brian, Abortion and American Politics
Kristin Luker, Abortion and the Politics of Motherhood
Michael McCann, Rights at Work

In addition, there are a number of supplemental readings I have assigned. These are required and are listed in the readings below.

All the required supplemental readings are available via the web site for this class. The address for the web site is http://www.georgetown.edu/reed. From there, click on the link to this class and then click on the reading on the electronic syllabus. That will deliver you either to the Electronic Reserves at Lauinger or to the article on JSTOR, where a number of readings for the course are located. Also on the web site are a number of legal research resources. These may be useful for research on your term papers.

Printing from JSTOR requires some preliminary downloading of software for the first time use, but is not that difficult. In order to print from Lauinger Reserves, you will first need to download and install Adobe Acrobat. (This software is already installed on the Electronic Reserves Computers at Lauinger). After installing that program, viewing and printing via Electronic Reserves at Lauinger is relatively straightforward. The aim of the electronic syllabus and readings is to reduce costs and to increase the accessibility of materials to the students. It is an experiment, so please be patient while we work out the glitches.

Your Participation in the Course

This course meets twice a week. One day a week -- typically Mondays -- I will lecture; the remainder of our time together will be devoted to class discussion. Since enrollment is limited to 15 students, everyone will have the opportunity to participate freely in discussions -- and will be expected to do so.

Our Wednesday discussions will focus predominantly on the readings for that week. But I want our discussions to move beyond an explication of the texts. I want us to think seriously about the implications of the authors' views for both law and social movements. In order to focus our discussions, I will ask three students every week to write a 6-8 page response to questions I will distribute on Wednesdays. These papers will be due on Mondays for distribution in class -- you must bring 15 copies of your paper to class when your paper is due. Your fellow students will read these papers -- as will I -- and they will begin our discussions on Wednesdays. Each student will write two of these discussion papers over the course of the term.

In addition to the two discussion papers, each student will write a 5 page literature review of their research topic and a 20 to 25 page term paper on some aspect of courts, law and social change. Be broad-minded in your thinking for these papers. I want students to break outside the traditional confines of constitutional law and think innovatively about law and social action. We will discuss paper topics over the course of the term, and by Spring Break, I want a short written statement of your topic. A half page typed (single-spaced) is fine.

Course Organization and Schedule of Class Meetings

The course is organized into four sections. Two introductory sections begin the course. First, we address the nature and politics of rights and rights rhetoric in American legal and constitutional orders. Second, we examine the origins of social movements in general, paying attention to both the structural features of social movements and their normative dimensions. From there, we turn to examinations of three social movements: The labor movement in the late 19th and early 20th centuries, the Civil Rights Movement of the mid-20th century, and the women's movement, paying particular attention to abortion and the rise of anti-abortion politics. Readings are listed for each class meeting.

Part I: Rights and Rights Consciousness

Jan 12: Course Introduction
Readings: None

Jan 14: What are Rights?
Readings:
Richard E. Flathman, "Types of Rights," in The Practice of Rights
Ronald Dworkin, "Taking Rights Seriously," in Taking Rights Seriously
Ian Shapiro, "Anatomy of an Ideology," in The Evolution of Rights in Liberal Theory
Hendrik Hartog, 1987. The Constitution of Aspiration and 'The Rights That Belong to Us All', Jnl. of Am. Hist. 74 (3): 1013-1034
Lynd, Staughton. 1987. The Genesis of the Idea of a Community Right to Industrial Property in Youngstown and Pittsburgh, 1977-1987. Journal of American History 74 (3):926-958.

Jan 19: Martin Luther King Day -- No Class

Jan 21: Rights, Legal Consciousness and the State
Readings:
Reich, Charles A. 1964. The New Property. Yale Law Journal 73 (5):733-787.
Sarat, Austin. 1990. 'The Law is All Over': Power, Resistance and the Legal Consciousness of the Welfare Poor. Yale Journal of Law & the Humanities 2 (2):343-379.
Ewick, Patricia, and Susan S. Silbey. 1992. Conformity, Contestation and Resistance: An Account of Legal Consciousness. New England Law Review 26 (3):731-749.
Merry, Sally Engle. 1995. Wife Battering and the Ambiguities of Rights. In Identities, Politics and Rights, edited by A. Sarat and T. R. Kearns. Ann Arbor: University of Michigan Press.

Jan 26: The Politics of Rights
Group A papers due
Readings:
Scheingold, The Politics of Rights

Jan 28: Discussion

Feb 2: The Limitations of Rights
Group B papers due
Readings:
Glendon, Rights Talk
Tushnet, Mark. 1984. An Essay on Rights. Texas Law Review 62 (8):1363-1403.

Feb 4: Discussion

Part II: Social Movements: The Roles of Structures and Norms

Feb 9: Origins of Social Movements: Structural Issues
Group C Papers Due
Readings:
Neil Smelser, "Structural Strain Underlying Collective Behavior," in Theory of Collective Behavior
Neil Smelser, "The Nature of Collective Behavior," in Theory of Collective Behavior
Mancur Olson, "A Theory of Groups and Organizations" in The Logic of Collective Action
Mancur Olson, "Group Size and Group Behavior" in The Logic of Collective Action
McCarthy, John D., and Mayer N. Zald. 1977. Resource Mobilization and Social Movements: A Partial Theory. American Journal of Sociology 82 (6):1212-41.
Cohen, Jean L. 1985. Strategy or Identity: New Theoretical Paradigms and Contemporary Social Movements. Social Research 52 (4):663-716.

Feb 11: Discussion

Feb 16: President's Day -- No Class

Feb 18: Origins of Social Movements II: Normative Issues
Research Paper Topic Due -- One page
Readings:
Joel F. Handler, 1978. "A Theoretical Perspective" in Social Movements and the Legal System. New York: Academic Press.
Galanter, Marc. 1974. Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change. Law and Society 9 (1):95-160.
Tilly, Charles. 1984. Social Movements and National Politics. In Statemaking and Social Movements, edited by C. Bright and S. Harding. Ann Arbor: University of Michigan Press.
Keller, Morton. 1987. Powers and Rights: Two Centuries of American Constitutionalism. Journal of American History 74 (3):675-694.

Part III: The Labor Movement and the Law

Feb 23: Origins of the Labor Movement and Judicial Repression
Group D Papers due
Readings:
Forbath, Law and the Shaping of the Labor Movement

Feb 25: Discussion

Mar 2: The Price of Success: The Labor Movement and the Wagner Act
Group E Papers Due
Readings:
Tomlins, Christopher L. 1985. The New Deal, Collective Bargaining and the Triumph of Industrial Pluralism. Industrial and Labor Relations Review 39:19-34.
Klare, Karl E. 1978. Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness. Minnesota Law Review 62 (3):265-339
Dubofsky, Melvin. 1994. "The New Deal Labor Revolution, Part I, 1933-1936" in State and Labor in Modern America, pp107-135.
Dubofsky, Melvin. 1994. "The New Deal Labor Revolution, Part II, 1937-1941" in State and Labor in Modern America, pp137-167.

Mar 4: Discussion

Spring Break

Part IV: The Civil Rights Movement and the Law

Mar 16: The NAACP's Legal Strategy to End Segregation
Group A Papers Due
Readings:
Tushnet, Making Civil Rights Law
Tushnet, Mark. 1987. The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. DuBois, and Charles Hamilton Houston. Journal of American History 74 (3):884-903.

Mar 18: Discussion

Mar 23: Did Brown Do Anything?
Group B Papers due
Readings:
Rosenberg, The Hollow Hope, pp1-174
Klarman, Michael J. 1994. How Brown Changed Race Relations: The Backlash Thesis. Journal of American History 81 (1):81-118;
Sanders, Francine. 1995. Brown v. Board of Education: An Empirical Reexamination of Its Effects on Federal District Courts. Law and Society Review 29 (4):731-756.

Mar 25: Discussion

Mar 30: Assessing the Origins of the Civil Rights Movement
Group C Papers Due
Readings:
McAdam, Political Process ... , pp1-145

Apr 1: Discussion

Apr 6: Why Did the Civil Rights Movement End?
Group D Papers Due
Readings:
McAdam, Political Process . . . , pp146-234

Apr 8: Discussion
Five Page Literature Review for Research Paper Due
(For Group D members, the literature review is due April 10.)

Apr 13: Easter Holiday -- No Class

Part V: The Women's Movement and the Law

Apr 15: Placing Abortion Within the Women's Movement
Readings:
Craig and O'Brien, Abortion and American Politics
Rosenberg, The Hollow Hope, pp173-265

April 16: Evening Class meeting and discussion
Time and Place to Be Announced

Apr 20: Battles Over Rights: The Right to Choose and Fetal Rights
Group E Papers Due
Readings:
Luker, Abortion and the Politics of Motherhood

Apr 22 Discussion

Apr 27 Legal Mobilization and the Women's Movement
Readings:
McCann, Rights at Work

Apr 29 Discussion

Research Papers Due On May 8, 5pm