Vol. 16 No. 12 (December, 2006) pp.979-982
THE NEW CIVIL RIGHTS RESEARCH: A CONSTITUTIVE APPROACH, by Benjamin Fleury-Steiner and Laura Beth Nielsen (eds). Aldershot, UK and Burlington, VT: Ashgate Publishing, 2006. 270pp. Hardback. $99.95/£60.00. ISBN: 0754624404.
Reviewed by Daniel C. Kramer, Political Science-Economics- Philosophy Department, College of Staten Island CUNY. Email: kramer-d [at] mail.csi.cuny.edu.
This book is a collection of essays showing, according to the Introduction by the editors, Benjamin Fleury-Steiner and Laura Beth Nielsen, “How . . . individuals experience their legal rights in action, as opposed to “how judicial decisions impact social change” (emphasis in original). These essays describe in various contexts the views, oft-times fuzzy, sometimes clear, sometimes internally inconsistent, that different groups of “disadvantaged individuals” have of their rights. That is, these essays adumbrate the “legal consciousness” of these groups, which, the editors rightly emphasize, is influenced by a whole host of factors – e.g., place, organizational type, position in a hierarchy, and cultural values. Most of the essays are based on a series of interviews with individuals drawn from the particular group whose rights-awareness they are studying. Most of the authors do not claim that their interviewees are a representative sample of the relevant group, which of course precludes any generalizations about the views of the whole group. Nonetheless, their case studies are fascinating and sometimes produce surprising results. They are thus well worth a read – especially by political scientists (including graduate students) and law professors who concentrate on the activities and decisions of courts and judges. (However, the book not infrequently employs technical social science language and thus probably is not suited for an undergraduate course.)
Chapter 1, by Idit Kostiner, discusses the legal consciousness of “30 activists for educational justice,” a phrase not well defined. Some of these men and women are most interested in getting more resources for disadvantaged students; another subgroup feels that the school system “perpetuates” the oppression of minority students and thus avers that what is most needed is to get these students to fight for their needs themselves; and a third holds that the main problem with the system is the “systematic racism” of teachers in the public schools. Chapter 2, by Judith Taylor, is a study of six women who served as “Title IX” Coordinators in an unnamed urban school district over a 20-year period. Four of the six did not consider themselves feminists when they were hired, but three of the four began identifying themselves this way by the time they left the job. The two who viewed themselves as belonging to the women’s movement when first employed became more attached to it as a result of their work experiences, which included their colleagues’ stereotyping of and hostility toward them and their inability to get the resources they needed to do their work well. [*980]
Chapter 3, by Catherine Albiston, emphasizes the reactions of their colleagues when workers took leaves to which they were entitled under the federal Family and Medical Leave
Act of 1993 (FMLA), which requires some employers to grant their workers unpaid leave for a period of up to 12 weeks to take care of family or medical crises such as pregnancy, birth of a child, or serious illness of a family member. Not surprisingly, given the traditional view that the man is the family’s primary breadwinner, their employers and co-workers were much less antagonistic to females than to males who took FMLA leave. However, upon their return, even the women were viewed as “slackers”! The most striking finding of Chapter 4, Kimberly Richman’s study of members and former members of gay and lesbian families, was that gays and lesbians do differ on some “gay family” issues, including the question of what should be the visitation and child custody rights of the non-biological, non-adoptive parent when the couple breaks up. They were split over the Supreme Court’s 2000 (the essay wrongly says “1999”) decision of TROXEL v. GRANVILLE, allowing a parent to limit visitations of a grandparent. Some gays feared that this result would make it more difficult for a non-biological parent to obtain visitation or custody rights; while others rejoiced that it would stop a grandparent from taking his/her grandchild away from a gay parent. Chapter 5, by Anna-Maria Marshall, shows that the women employees of an unnamed university did not often complain to anyone about the sexual harassment they suffered at work even though the institution had circulated a “Written Policy” against such harassment. And Elizabeth Hoffman’s Chapter 6 indicates that male drivers and dispatchers in a cab company harassed their female colleagues whom they rightly or wrongly identified as lesbian, less than they did their female colleagues whom they believed “straight.” The men, by the way, were aware that harassment was outlawed by both law and company rules and could cost them their jobs. Some men asserted that an incident a woman believed was harassment in fact could not justly be labeled such.
Frank Rudy Cooper’s Chapter 7 is the only essay in the volume that does not rely on interviews. It argues that the 1968 Supreme Court case of TERRY v. OHIO allowing police to “stop and frisk” individuals on “reasonable suspicion” even though “probable cause” was lacking, had, at least in New York City, what the author terms a “seesaw” effect. When Rudolph Giuliani became Mayor in 1994, many whites, even liberal whites, felt that crime had increased in their communities. Thus, the culture of the times permitted the Giuliani administration to employ “aggressive policing tactics,” including using TERRY stops disproportionately against minorities. Then the culture turned against aggressive policing, partly because officers shot an innocent West African, Amadou Diallo, 41 times, killing him, and an officer stationed in Brooklyn anally raped a prisoner with the handle of a toilet plunger. (Minor correction here – the surname of the policeman who aided the rapist was “Schwarz,” not “Schwartz.”) Because of this turn of the tide, the police largely [*981] ignored attacks on women at the 2000 Puerto Rican Day parade. Chapter 8, by Benjamin Fleury-Steiner and Jessica Hodge, emphasizes the adverse effects on the prisoners’ rights movement of the federal Prison Litigation and Reform Act of 1996 (PLRA) which, among other things, requires prisoners filing suit to pay a filing fee and exhaust all prison administrative remedies before going to court, and also caps the fees their attorneys can receive. (Prisoners’ rights organizations were funded in part from these fees.) The PLRA was especially hard on HIV-infected prisoners, some of whom died while the remedies were being exhausted.
Chapters 9, by Hadar Aviram, and 10, by Jerome Pelisse, are from abroad. The former, from Israel, describes the varied reactions to prison of Israeli military reservists, mostly very-well educated, who refused for reasons of conscience to serve in the West Bank territories. Some silently mocked their jailers and felt that they were playing “games” with them; others, some of whom were social scientists, spent their time comparing the reality of prison life against the views they had formed of it from television and cinema; unexpectedly, many enjoyed their prison experience, considering it a “break from their daily lives.” The Pelisse essay portrays the impact on various workers in several firms of the French law limiting the workweek to 35 hours. Some lower-level employees were unhappy with the way the law was put into effect. Frequently the supervisor decided the contours of the new work schedule, which was often not the most convenient for a particular worker. White collar employees were given more power to decide for themselves how to allocate the reduction in hours mandated by the law. Finally, back to the United States, in Chapter 11 Laura Beth Nielsen points out that “place” plays an important role in assigning the meaning one gives to certain types of speech and in determining whether that speech should form the basis of a legal action. In a well-chosen example, she notes that a remark from a man to a woman such as “hey baby, looking good,” can be considered a compliment by a woman in a singles bar, “troubling but not frightening” by one walking in a park during the day, frightening if walking on a deserted street at night, and perhaps actionable if it and other sexist comments are uttered by her boss.
Remember that the last three words of the title of the volume under review are “A Constitutive Approach.” Unfortunately, this phrase is clearly defined neither in the editors’ Introduction nor in Michael McCann’s lengthy Preface (which precedes the Introduction). From putting McCann’s definition of “constitutive power” in this volume alongside his discussion of “constitutive” legal discourses in RIGHTS AT WORK (1994, at p.6) and the last couple of chapters of that book, one can conclude that he and the editors of THE NEW CIVIL RIGHTS RESEARCH feel that one situation where the legal consciousness of the members of a group is “constitutive” is where it encourages them to try to expand their rights, informally through negotiation and/or formally through filing administrative complaints or lawsuits. Interestingly, very few essays in this book portray much “constitutive” [*982] legal consciousness of this sort. The one that does so most vividly is that on the FMLA, where workers used their knowledge of the measure both to negotiate leaves for themselves and to explain to their colleagues that taking leave is not “slacking off.” But few of the harassed female university employees whom Chapter 5 discusses bothered to file a complaint with their supervisor, let alone a formal grievance or a lawsuit. Likewise, most of the lower level French employees discussed in Chapter 10 did not put up a great deal of resistance to their employers’ taking it upon themselves to decide how the reduced 35 hour workweek of their subordinates should be structured.
Several minor complaints. The book is divided into three parts – “Rights in Practice,” “Contested Rights,” and “The Future of Rights Research.” This segregation is misleading. The chapters in ALL the parts are mostly descriptions of the present-day legal consciousness of the various groups studied; while the rights of the groups covered in the first section are no less “contested” than those of the men and women covered in the second (and third) sections. The fact that the last chapter of Part I and the first of Part II both deal with workplace-related sexual harassment is further evidence that there is no real difference among the parts, Next, the editors’ claim in their Introduction – a claim reflected in their book’s title – that the approach of their contributors is “new,” in that it focuses on rights from the “bottom up,” is overstated. To take just one example, McCann’s RIGHTS AT WORK (1994) had a similar focus.
As McCann correctly points out in his Preface to THE NEW CIVIL RIGHTS RESEARCH, researchers interested in “constitutive” legal consciousness ought to study that of the “haves” as well as that of the “have-nots.” It cannot be said that lawyers, business people, affirmative action opponents, and the like, are not conscious of their rights or do not act on them. In fact, they feel that their rights are being eaten away by the rights given to the disadvantaged and in many cases attempt to re-conquer their own by limiting those of the latter. (A parenthetical note: It may be that the people most aware of their rights under the law are professional criminals! See Jackson 1972). THE NEW CIVIL RIGHTS RESEARCH would have been even more informative had it included a couple of essays on “elite” legal consciousness. But despite this and my other cavils, this book is a fine effort.
Jackson, Bruce. 1972. A THIEF’S PRIMER. New Brunswick: Transaction Books.
McCann, Michael. 1994. RIGHTS AT WORK. Chicago: University of Chicago Press.
TERRY v. OHIO, 392 U.S. 1 (1968).
TROXEL v. GRANVILLE, 530 U.S. 57 (2000).
© Copyright 2006 by the author, Daniel C. Kramer.
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New Civil Rights Research: A Constitutive Approach