PorterWells

LSJ200FinalPaper
3/18/2015
Oneofthemanyshortcomingsoftheeducationsystemathandisthatwhena
childfirstlearnsaboutthecivilrightsmovement,theylikelylearn(whetherdirectly
statedorotherwise)thattheeffectivecombinationofMartinLutherKingJr.swords,
RosaParksdetermination,andthestrengthanddedicationofcountlessothersbeckoned
forththeendingofracismandthedawnofequalrights.Whilethetruthaboutthislesson
maybehardtocommunicatetoa4thgrader,manyfullgrownadults(particularlythose
whoserightshavebeeninplaceforcenturies)maystillmisunderstandittoday.Thetruth
isthattheCivilRightsmovementandarguablyanyothermovementworkingtowardsthe
goalofsecuringrightsforagroupofpeoplewasnottheendofastruggle,butjust
anotherbeginning.Thisisbecauserights,evenafterthepainstakingprocessofgetting
themlegallyrecognized,arenotapromisethatnooneisevergoingtoviolateanother
personshardearnedentitlementtovote,tospeakfreely,toreceivethesameeducationas
someoneelse,orotherrights.Aviolationoftheserightsmaystilloccurandlikelywill
forquiteawhile.Legallyrecognizedrightsdohoweverallowapersonexperiencinga
rightsviolationtoseekjusticeandretributionfortheoffensesagainstthem.Theyarenot
aguarantee,butratherameanstofightingforsomethingyouarelegallyendowedto.
Theconceptofrightsoftenexistsinamoralorculturalspherebeforelawcan
recognizethem.Theystartofasideasaboutwhatpeoplearedeservingofjustbymeritof
beinghumanbeings.However,evenastheserightsmaygrowinprevalencewithinthe
publicconsensus,peoplemaystillbeatriskforbeingunabletodefendtheirrightsifthey

arenotlegallyrecognized.Takeforinstancetherecentstruggleforprotectionagainst
discriminationbasedonsexuality.Overthepastfewdecades,supportandchangein
favoroftherightsoftheLGBTQcommunityhasbeenmobilizedrapidly.Accordingto
MichaelJ.KlarmansarticleHowSameSexMarriageCametoBe.Withinthistime
framewevewitnessedvariousrightsbeingrecognizedsuchasthedecriminalizationof
sodomy,therepealofDontAskDontTellpoliciesinthemilitaries,andthelegalization
ofcivilunionsandmarriagesinstatesacrossthenation.Beforeanyofthiscouldhappen,
thepublicsperceptionofqueersexualityhadtochange.In1990,75%percentof
Americanspolledasviewinghomosexualseximmoral,whereasby200475%of
Americanssupportlawsbarringdiscriminationonsexualorientationinpublic
accommodations.(Klarman,2012,pg.31,33)Soifallofthesudden,themajorityof
AmericansbegintoseeLGBTQrightsinapositivelight,recognizingtheirvalidity,then
whyislegalrecognitionnecessary?Unfortunately,withoutlegalprotection,LGTBQ
peoplecanstillbeatlossforresourcesandtreatmentthatashumanbeingswefeelwe
deserve.Withoutlegalrecognition,aqueerpersoncanbeturnedawayatarestaurant
becauseoftheirsexuality,twopeopleofthesamesexcannotgetmarriedandshare
healthbenefits,andsomeonecouldlosetheirjobjustforcomingoutofthecloset.So
evenaspublicsentimentsbegintoshiftfavorablyforsomeone,theyarestillatriskfor
receivingunfairtreatment.Winninglegallyrecognizedrightscangivepeoplethe
resourcesneededtoberecognizedasdeservingequallytreatmentandgivepeoplea
chancetofightagainstpeopleandconditionsthatprovideotherwise.

Evenwithchangesinpublicconsensushowever,thefightforlegallyrecognized
rightscouldbemetwithquiteafewissuesasidefromjuststatusquoandstubborn
opposition.Oneargumentoftenmadetostoprightsmovementsisthatthesemovements
aimtoacquirespecialrights.IntheAmericancultureofequalitarianrights,itis
commonlyseenaseveryoneneedstoworkearntheirfairshareandeveryoneshouldbe
givenequaltreatment.Manypeople,inlinewiththisphilosophy,seetheplayingfieldof
rightsasequalwithoutmakingspecialprovisionsforspecialgroupssuchasracial
minorities,women,LGBTQcommunities,andothers.Peoplewiththismindsetareoften
uppermiddleclasswhitepeopleandseetheseimprovementsofrightsrecognitionsfor
specialgroupswithresentment,viewingsuchchangesasstackingthegameagainst
primarilywhitemales.Usingtheconceptsofanequalitarianviewofrights,thesepeople
retaliateagainstrightsmovementsbymakingitlooklikerightsmobilizationgroupsare
gettingunfairspecialtreatment.
Anotherproblemthatrightsmobilizationsarelikelytorunupagainistheconflict
ofrightsclaims.Theveryfactthatthisoccursgoestoshowthatourunderstandingof
rightsasundeniablebasichumanentitlementsistoocleantoaccountforthesemessy
overlaps.AverycontemporaryexampleofthisisthecurrentclashbetweentheLGBTQ
rightsmovementandtherightstoreligiousfreedom.Therighttonotbediscriminatedon
thebasisofsexualityisnotrecognizedonthelistidentifyingqualitiesprotectedbythe
CivilRightsAct.AsIstatedearlier,manyarenowinsupportoflawsprotectingthe
LGBTQcommunityfromdiscrimination.However,inthearenaofprivatebusinessesthis
iscurrentlyfacingquiteabitofresistance.Thisisseenascomingintoconflictwiththe

religiousfreedomofprivatebusinessesandvendorswhomaynotwanttoservemembers
ofLGBTQcommunity.Argumentscanbemadeinfavorofeitherside,andbothseemto
berootedinimportantvaluesofAmericanrightssuchasreligiousfreedomand
protectionfromdiscrimination(althoughthisisarguablyalaterintroducedvalue).This
conflictillustratesthatrightscanrunupagainsteachotherandthatevenoncesomeone
receivessomelevelofrights,thebattleisfarfromover.
Sothenwhyfightforrights?Iftheyarenotaguarantee,whatexactlydothey
provide?Astudythatwediscussedinclass,byRosenberg,lookedattheimmediate
impactsaftertheAmericanswithDisabilitiesActwaspassedin1990.(Theresearchers
foundthatimmediatelyaftertherewasasmallslowchangebeginningintreatmentof
peoplewithdisabilitiesandlittleincreaseinpeopleusingtheirnewlyearnedrights.
Howeverhefoundthatpeoplewerebeginningtohaveabetterunderstandingoftheir
rightsandthelegalframeworkitprovidedforfightingtheirbattlesforequality.
o Rosenberg: Legal recognition of civil rights had no immediate effects
Study of impact of ADA: passed in 1990, people with disabilities
have a right not to be discriminated against on the basis of
disability
Rights of Inclusion (David Engel): found that most people
who experienced discrimination due to disability, but none
had invoked legal rights, potentially due to
o hard to prove
o damage to employment relationship
o still not in position of power
helped clarify responsibility of discrimination
Legalrightshavesubtleandindirecteffects
Raiseexpectations
Providealegallanguage/framework
Transformconsciousnessandencourageaction,thoughmaynot
providethedirectresultsatfirst

Oncearighthasbeenwon,itisneitherguaranteednorexistingwithoutcounter
movements.Itisnonethelessveryimportantbecauseitprovidesanimportantresource
foragroupexperiencingunfairorunequaltreatment.
1.Sociolegalscholarsoftenstudythepoliticsofrights,thatis,politicalstrugglesover
whichrightsclaimsshouldandshouldnotberecognizedasrightsandprotectedbylaw.
(Thisessayshouldbe34pageslong).

Whatarerights,andwhydorightsseekersoftenseeklegalrecognitionofthem?
o Rights: ideas about entitlements and obligations
some of these are recognized by law, some are not
Moral and political in nature
Ideas surrounding these change over time
Myth of rights: legally recognized rights are resources, not
guarantees
Having the backing of law in a rights claim does not
guarantee the rights being respected
Belief in rights matters in important ways
Whatarethevarioustacticsopponentsusetocountersuchrightsclaims?
o SpecialrightsclaimsgoesagainstAmerica's'everyoneisequalideas
treatyrights
o Onesetofrightsversusanothersamesexmarriagevs.religiousliberty
AsSallyEngleMerrystatesinTheCriminalizationofEverydayLife,lawis

often(andincorrectly)thoughtoftoexistinarealmthatdoesnotoftencomeconverse
witheverydaylife.Iarguethatinfact,lawdoescomeincontacttoeverydaylife.And
subsequently,everydaylifecomesincontactwithlaw.Lawisacollectionofideas,rules,
andregulationscreatedbyagoverningbody,butnomatterwhatthisgoverningbody
involvespeoplewhocreatethelawsandlegalsystem.Tobeinthepositiontodothis,a
personmustoftenfirstbeapartofthepowerwieldingsocialmajority.Becauseofthis,
lawisthusanembodimentandenforcementofthismajoritygroupssocialnorms.This
cancreatelargeproblems,intendedandunintended,forpeoplethatdonotorcannot
adheretothesocialnormsofthegoverningmajority.However,theexchangebetween

lawandsocialnormsitisnotalwaysaonewaystreet.Althoughlawisoftenan
enforcementofacertaingroupssocialandculturalnorms,socialnormscanchangeand
evolve,growingtoinformlawitself.Thisisanimportantpartoflawbecauseitallows
forthemobilizationofrights.
First of all, social norms are shared understandings about how people are
supposed to behave in certain situations. These norms are rarely universal norms; even in
our current globalized world there is still a great variance in different cultures norms. An
argument for the usefulness is that the enforcement of social norms creates social order,
to protect society from falling in to disorder and chaos. These systems of social order are
upheld informally, through social pressures like bullying, shaming, and even social exile.
On the other end of this is formal social control, which is the embodiment of social norms
in laws. When social norms become embodied into law, it can become even more
dangerous for those who do not or cannot adhere to these norms. In some cases, their
very existence goes against the social order of the governing majoritys social norms. For
example, in Dr. Becketts article Banished, which details the ever-increasing prevalence
of laws that resemble the practice of social banishment, we meet a man named Jose. This
man must wait outside Casa Latina in order to get work and sustain himself. However he
was no longer able to do this upon receiving a trespass admonishment from the SPD,
barring him from this area just for socializing with known crack dealers (regardless of
having no evidence that he himself was involved with dealing drugs). No longer able to
access jobs that he got from the Casa Latina location, he now has to resort to less legal
forms of employment. Trespass laws like this and similar others make large areas of
urban citied like Seattle inaccessible for certain people who homeless people, people who

are suspected of drug use or dealing, or people who may just seem suspicious to police.
These are all activities or statuses of people that the prevailing social ideas see as going
against norms, and thus threaten the social order. There is much debate to be had as to
whether these actions or people are actually a threat to society, but it is all too evident that
society aims to be a threat to them through law. Laws that criminalize activities that exist
outside social norms also attach a criminal status to the people that partake in them. In
The Criminalization of Everyday Life, Merry looks at a historical example similar to
that of Seattles new take on trespassing laws: the use of vagrancy laws to control the
recently freed population of slaves in British colonial Africa. The British viewed the
African people, previously enslaved, as outside the British ideas of how people should
act. They viewed them as idle, adulterous, disorderly, and lacking any self restraint.
(Merry, pg. 25) To attempt to force these populations to adhere to the British ideas of
social norms (hard-working, controls, moral, etc.) they began to outlaw acts of drinking,
dancing, adultery, and vagrancy, all acts that prevented these people from being apart of
the industrialized capitalist workforce. However, these acts were very much a part of
these peoples lives, and thus the criminalization of another groups social norms (because
they go against the prevailing groups norms) in turn criminalizes whole groups of
people.
This brings us the intended and unintended consequences of embodying social
norms in a legal system. To an extent these laws obviously have some intended outcome
for enforcing social norms. One motivation is to create instrumental (externally
motivated) reasons for people to obey the law, pushes people to be active contributors to
society and the economy, and makes a system of general social order followed by a large

part of the population. Law also intends to protect people from violence and harm and to
deter people from committing acts that would result in this. However, in trying to both
accomplish both of these things at once, it sometimes sacrifices one for the other and fails
to protect whole groups of people. One example of this unintended consequence is the
current situation with immigration control. Over recent decades, enforcement at the
border has been substantially amped up. More money and resources being poured into
things like Operation Blockade and Gatekeeper, launching missions to completely
prevent immigration through urban corridors and building mile long fences with
floodlights along other common rural passages. (Massey, pg.4) These operations take
precedence in the idea of deterrence, but it has been shown that deterrence is ineffective
in cases when people having nothing to lose. (Beckett Lecture) This happens to be the
situation in economically struggling and violence ridden Central America, where an
attempt to cross the border to find work is an improvement no matter how harsh the
consequences. So the attempt to create social order in increasing deterrence surrounding
immigration has been ineffective, and also has created a system of indirect structural
violence. People are forced by their situations to attempt to cross regardless of border
control efforts, and doing so is now a much more dangerous game. They must cross
through terrain that is harsh and often lethal due to dehydration, starvation, or general
exposure to the elements. Many migrants must rely on the illegal market of smuggling
people across the border, which left unregulated creates many situations where people are
vulnerable to violence. With the shift towards more harshly criminalizing the act of
illegally immigrating into the U.S, migrants are more afraid than ever to get help from the

law in response to experiencing abuse or violence thus making them even more
vulnerable.
These changes in immigration policy and regulation have largely been in effort to
prevent drug trafficking and terrorism from coming through our borders, suggesting an
increase in the socially widespread rise in xenophobia and paranoia along with the actual
increase in drug cartels in Central America. But in the process, they are putting the mark
of criminalization on people that migrate to find work, people that dont fit Americas
ideas of social norms, and therefore are not recognized as having equal rights or
protection under the law.
As detrimental as this relationship between prevailing social norms and law can
and has appeared, it can serve a purpose and combat against the oppression and exclusion
of those who, at some point, do not fit norms. Law does influence everyday life, but it is
far from the sole controlling factor. Shifts in the public mind occur with the mobilization
of movements such as the Civil Rights Movement, Womens Suffrage, and LGBTQ rights
movement. The latter of which is a perfect example of how prevailing norms can be
changed outside of law and actually end up changing law itself. Klarmans article
detailing the progression of the LGBTQ rapid expansion of rights (still in progress of
course) makes a point to note that in 1986, only 25% of people claimed to know a gay
person. At this point, the LGBTQ rights movement was just getting underway with very
little legal recognition. In fact, sodomy was still illegal in many states. By the time the
first civil-unions were becoming legal in Vermont, this statistic of people who knew a gay
person jumped from 25% to 74%. (Klarman, pg. 30, 32) I had at one point asked Dr.
Bennett what she attributed the rapid garnering of recognition of LGBTQ rights to after

class one day, and she claimed that it was likely due to the movement focusing highly in
getting people to come out of the closet, making it an issue more real to the friends and
family of people who wouldve previously considered it immoral, as 75% of Americans
did in 1990. (Klarman, pg. 32) What this shows is that the increase in the number of
LGBTQ individuals in the public eye began to shift the social norms surrounding
LGBTQ issues, bringing them more into the realm of normalcy. This was able to give
people a foundation for fighting for the legal recognition of their rights in the eyes of the
American Government.
Law exists as a manifestation of social norms accepting by the prevailing
majority, thus threatening the livelihood and lives of those who do not or cannot fit to a
governing bodys ideas of social norms at times. Sometimes law, like in Joses case of
trespass admonishment, intends to create this threat to outsiders. Other times, like in the
case of the violence created by immigration reform, it is created via indirect and harder to
rectify routes. This relationship does however present the opportunity for a change in
social norms to change in law, a process that is key to rights mobilizations.

creates instrumental reasons for people to obey the law, pushes people to be active
contributors to society and the economy, general social order followed by a large part of
the population

HOWEVER: instrumental reasons are not effective we people have no

other choice but to engage in criminalized actions (example from the Banished article:
Jose, trespass admonished from Casa Latina for, unable to secure work now turns to
drugs dealing for money

criminalizing behaviors seen as disorderly to uphold social order, sweeps

them under the rug, doesnt treat the problem just a symptom, often creating a cycle
trapping people within the justice system

Creation of social order/compliance

Peaceful resolution of disputes
Facilitate orderly social change
Laws stated purposes/intended consequence are sometimes achieved, sometimes
not
Social Order: keeping power to the people, power in the institutions of social life,
maintain hierarchies of power, preventing chaos
Double edge sword of allowing things to get done, but can also be too rigid
and oppressive
Norms
o shared understanding of how you are supposed to be in certain
situations
o may vary across groups/cultures
o informal social control: the subject must be aware that their behavior is
not acceptable/adhering to the norm
o formal social control: law systems
Lawisacollectionofideas,rules,andregulationscreatedbyagoverningbodyto
enforcethesociallyconstructednormsupheldbythepowerwieldingmajority.
2.Whatislaw?Whatareitsintendedandunintendedconsequences?Whyisit
important?(Pleasebesuretodiscussbothviolenceandrightswhenaddressingthese
questions).(Thisessayshouldbe56pageslong).
o SocialOrder:
Successfulwhen:createsinstrumentalreasonsforpeopletoobey
thelaw,pushespeopletobeactivecontributorstosocietyandthe

economy,generalsocialorderfollowedbyalargepartofthe
population
HOWEVER:instrumentalreasonsarenoteffectivewe
peoplehavenootherchoicebuttoengageincriminalized
actions(examplefromtheBanishedarticle:Jose,trespass
admonishedfromCasaLatinafor,unabletosecurework
nowturnstodrugsdealingformoney
criminalizingbehaviorsseenasdisorderlytoupholdsocial
order,sweepsthemundertherug,doesnttreattheproblem
justasymptom,oftencreatingacycletrappingpeople
withinthejusticesystem

Intendedconsequences:LawinthecontemporaryUnitedStatesworkstoachieve
socialorderandtheresolutionofdisputes,howeveritdoessoprimarilyinthe
bestinterestsofthosewithhighersocialandpoliticalpower.
o Directbehaviorandlifeinawaythatmaintainsorder
o Protectpeoplefromviolenceandharm(iftheythemselvesareadheringto
theexpectednorms)
o LegalConsciousness:understandingofhowthelawworks,basedon
observationsandexperienceswithlawenforcement,
LegalMobilization:processes through which people would
recognize and define rights violations and then take action in
response to them
Successfulwhen:(ConsensusPerspective)CivilCourtsoperateon
theideaofgivingpeoplevoices,aplacewherepeoplecansue
largebodiessuchascorporations,whenperhapsastate
governmentwillnotpresssuchacase

Unintendedconsequences:
o ConflictPerspective:emphasizes gap between formal legal equality
(which makes a difference, but potentially covers a still present inequality)
and substantive (actual) inequality
Peopleareaware:Latino/astudentsmorelikelytoexperience
rightsviolations,lesslikelytoreportthemandseekformallegal
action.
LegalConsciousness
o peoplecooperatewithgroupsiftheyiftheyfeel
groupdecisionsaremadefairly(tyingbacktosocial
order)
Largenumbersneverusetheformallegalsystemtosolvetheir
dispute,4%hireanattorney,2%gotocourt
Occursbecauseitsexpensive,timeconsuming,potentially
detrimentaltotheirimage

o Inanattempttoupholdsocialnorms,itcriminalizesthosethatdonotor
cannotadheretothesenorms,creatingsystemsofdirectandindirect
violencetargetedatthesepeople
Peoplewithcriminalizedstatus:immigrants,prostitutes,drug
addicts
Direct Violence: intentional use of physical force or power, threatened or
actual, against a person, results in or has a high likelihood of resulting in
injury, death, psychological harm, or deprivation
o New deportation enforcement policies:
1. previously voluntary deportation, send them back to Mexico
without hearing or criminal charges,
2. now consequence delivery system: if caught within 100 miles,
name recorded so upon attempt to reentry, its a felony
misdemeanor and you face criminal charges.
o Increased criminalization of immigrants by these acts leading to more
use of arrests (legal direct violence) and Immigration Detention
Centers, along with decrease in rights from IIRIRA
1. Lost in Detention documentary: detainees are susceptible to
abuse and sexual harassment at the hands of guards, separated
from families,
2. reduction of rights and the attempt to swiftly remove them
from the country, limited ability to fight back legally.
Structural Violence: social structures, law and policy -> prevent people from
meeting their basic needs/causes harm to people
o NAFTA is creating an economic depression in Mexico, creating
structural violence by depriving people of their jobs, economic
sovereignty, and therefore food and livelihood.
motive to immigrate.
o Operations Hold the Line, Blockade and Gatekeeper concentrated
enforcement resources in urban corridors - > shift in where immigrants
attempt to cross
1. Immigrants are merely deterred from entering through urban
pathways, but are not overall deterred -> enter through desert
and mountains, higher risk of death
2. Also increases the demand and price for an illegal migration
market, putting immigrants at risk of non-legal direct violence
at the hands of coyotes
Importance:Eventhoughlawisalegalmanifestationofsocialnorms,this
presentsopportunityforchange.Ifpeoplecanchangethenorms,theycanchange
thelaws.Regardlessoftheflawsthatthe