Studies in Law, Politics and Society

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STUDIES IN LAW, POLITICS, AND SOCIETY

STUDIES IN LAW, POLITICS, AND SOCIETY Series Editor: Austin Sarat Recent Volumes: Volumes 1–2:

Edited by Rita J. Simon

Volume 3:

Edited by Steven Spitzer

Volumes 4–9:

Edited by Steven Spitzer and Andrew S. Scull

Volumes 10–16:

Edited by Susan S. Sibey and Austin Sarat

Volumes 17–33:

Edited by Austin Sarat and Patricia Ewick

Volumes 34–49:

Edited by Austin Sarat

STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 49

STUDIES IN LAW, POLITICS, AND SOCIETY EDITED BY

AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA

United Kingdom – North America – Japan India – Malaysia – China

Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2009 Copyright r 2009 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. No responsibility is accepted for the accuracy of information contained in the text, illustrations or advertisements. The opinions expressed in these chapters are not necessarily those of the Editor or the publisher. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-84950-615-1 ISSN: 1059-4337

Awarded in recognition of Emerald’s production department’s adherence to quality systems and processes when preparing scholarly journals for print

CONTENTS LIST OF CONTRIBUTORS

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EDITORIAL BOARD

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PART I: SYMPOSIUM: ‘‘THE TRIAL: PAST, PRESENT, FUTURE’’ A CRITICAL APPRECIATION OF THE AMERICAN TRIAL IN (CURRENT) DECLINE Robert P. Burns

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STORIES FROM THE JURY ROOM: HOW JURORS USE NARRATIVE TO PROCESS EVIDENCE Robin H. Conley and John M. Conley

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‘‘WE HAD NEVER JUMPED FENCES BEFORE’’: THE CITY, THE WOMAN, AND THE DRIFTER IN THE YAAKOBOWITZ CASE Leora Bilsky

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A TRIAL IN THE LIFE OF THE ENVIRONMENTAL JUSTICE MOVEMENT: USA V. CITGO Anna-Maria Marshall

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v

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CONTENTS

PART II: GENERAL ARTICLES LEGALIZING PUBLIC REASON: THE AMERICAN DREAM, SAME-SEX MARRIAGE, AND THE MANAGEMENT OF RADICAL DISPUTES Keith J. Bybee and Cyril Ghosh

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LITTLE MONSTERS, WILD ANIMALS, AND WELFARE QUEENS: RONALD REAGAN AND THE LEGAL CONSTITUTION OF AMERICAN POLITICS Jeffrey R. Dudas

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LIST OF CONTRIBUTORS Leora Bilsky

Law, Tel-Aviv University, Israel

Robert P. Burns

School of Law, Northwestern University, USA

Keith J. Bybee

Political Science and Law, Syracuse University, USA

John M. Conley

School of Law, University of North Carolina, USA

Robin H. Conley

Department of Anthropology, UCLA, USA

Jeffrey R. Dudas

Department of Political Science, University of Connecticut, USA

Cyril Ghosh

Department of Political Science, Reed College, USA

Anna-Maria Marshall

Department of Sociology, University of Illinois – Urbana-Champaign, USA

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EDITORIAL BOARD Laura Gomez University of New Mexico, USA

Gad Barzilai University of Washington, USA, and Tel Aviv University, Israel

Piyel Haldar University of London, UK

Paul Berman University of Connecticut, USA Roger Cotterrell University of London, UK

Thomas Hilbink University of Massachusetts, USA

Jennifer Culbert Johns Hopkins University, USA

Desmond Manderson McGill University, Canada

Eve Darian-Smith University of Massachusetts, USA

Jennifer Mnookin University of California, Los Angeles, USA

David Delaney Amherst College, USA

Laura Beth Nielsen American Bar Foundation, USA

Florence Dore Kent State University, USA

Paul Passavant Hobart and William Smith College, USA

David Engel State University of New York at Buffalo, USA

Susan Schmeiser University of Connecticut, USA

Anthony Farley Boston College, USA

Jonathan Simon University of California, USA

David Garland New York University, USA

Marianna Valverde University of Toronto, USA

Jonathan Goldberg-Hiller University of Hawaii, USA

Alison Young University of Melbourne, Australia

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PART I SYMPOSIUM: ‘‘THE TRIAL: PAST, PRESENT, FUTURE’’

A CRITICAL APPRECIATION OF THE AMERICAN TRIAL IN (CURRENT) DECLINE Robert P. Burns ABSTRACT In this chapter, I address a number of the difficult questions surrounding the current decline of the American trial. I begin with a compressed and evaluative account of what the contemporary trial is for us. This involves both an account of what we do at trial and a more global account of its significance. I discuss some of the theoretical issues that such an account poses. I then provide a short account of how we have gotten to where we are (‘‘the past’’). I provide a summary of recent social scientific findings that suggest that the trial is in current decline and some preliminary speculations as to the explanations for that decline (‘‘the future’’). Finally, I suggest the happy possibility that explanation of the future may be quite limited in this matter.

I begin with a compressed account of my understanding of the contemporary American trial, ‘‘The Present’’ in the title of this Studies volume. It is helpful, I think, to start where we always start when we contemplate the past and the future, in the present. We cannot jump over our own shadows. My account of the contemporary trial is self-consciously normative, an appreciation of what

Studies in Law, Politics, and Society, Volume 49, 3–23 Copyright r 2009 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049004

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I take to be a great achievement of our political culture. Some such account seems necessary for us to distinguish what in our current ways are essential elements of trial practices and so ought to be maintained rather than ‘‘reformed away.’’ This requires an inevitably circular process of description in which the most local of details of our current practices are brought into tension with a more global account of the social theory that makes sense of (and so justifies) those practices from broader perspectives (Geertz, 1983, p. 69). It is circular because the trial is a dense social practice, which reflects in its procedures and languages what Rawls calls ‘‘considered judgments of justice,’’ convictions that we have developed over decades at a high level of self-consciousness. Those practices, then, form some of the sources for any broader social theory that takes the legal order seriously, an element of our most basic political commitments. Any plausible normative social theory that would evaluate the trial will have to take the trial’s practices as at least one normative source, even while deploying other normative sources to offer criticism. The circularity requires interpretive judgment to be deployed in judging both the theory and the practices. As in trial practice itself, the most persuasive account will be determined by ‘‘the mutual support of many considerations, of everything fitting together into one coherent view’’ (Rawls, 1971, p. 579). One indication of the importance of our trial practices is the way in which many of its elements are matter of constitutional law, that is, fundamental law, beyond the reach of legislature and court rules. In my view, this represents more than simply the proprietary feelings that the legal guild has for its own ways. For the trial is, as James Boyd White has put it eloquently, ‘‘the central institution of law as we know it’’ (White, 1999, p. 108). Another indication is the way in which the structure of the trial has been an important object of political argument throughout our history (Abramson, 1994). On the contrary, the trial has not been one thing historically and its structure is not beyond criticism and change. We moderns know that we are responsible for the practices we follow as we both try to do justice and create the institutional conditions for its realization (Luban, 1994, p. 380).

THE PRESENT There are competing understandings of the contemporary trial, one of which I have called ‘‘the received view’’ (Burns, 1999, pp. 11–26), which provide an account of trial practices at odds with mine. They naturally seek justification in competing social theories. The received view of the trial envisions it as the

A Critical Appreciation of the American Trial in (Current) Decline

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institutional device for establishing the rule of law in situations where there are disputes of fact. ‘‘The law’’ in this understanding is Justice Scalia’s ‘‘rule of law as a law of rules.’’ This view captures important aspects of what the trial is for us. It expresses the powerful political ideals embedded in liberalism: that the state may act against an individual only on the basis of pre-announced rules applied evenhandedly to all. It is descriptively accurate insofar as it provides an account of some of the most striking aspects of trial practices, for example, the law of materiality, which requires all evidence to have a warrant for admissibility provided by its logical relationship to the substantive law, and the general requirement of testimony by witnesses with perceptual knowledge presented in ‘‘the language of perception.’’ In this view, jury decision-making involves the creation of a value-free narrative of past events, followed by what we may call the ‘‘fair categorization’’ of that narrative, employing only the norms that are to be found in the jury instructions, and ultimately in the substantive law. These aspects of our contemporary trial were created by the very practical utopians who were common law lawyers and judges who sought actually to establish the liberal ideal of the rule of law, decisions based solely on accurate fact-finding and the imposition of pre-announced rules. The received view of the trial is not so much incorrect as it is partial. The trial, and in particular the jury trial, occupies a much more central place in our political culture than the received view suggests. It is today much more than the devices for operationalizing the rule of law as a law of rules. This is true on the descriptive level: we do many things at trial that are inconsistent with the received view. We allow partisan lawyers to control most of the presentation of evidence and allow narrative and argumentative devices that appeal to moral and political norms well beyond those embedded in the law of rules. The trial’s ‘‘consciously structured hybrid of languages’’ serves to discipline and refine the moral resources available in our life-world norms and mediate between them and the law of rules. The trial proceeds through the construction and deconstruction of different forms of narrative (Burns, 2004). These narratives carry the norms that are embedded in our life-worlds, an ‘‘ethics already realized.’’ ‘‘The world of recountable events’’ is inevitably an ethical world (Burns, 1999, p. 171). The narratives of opening statement place the entire human event being tried in the largest possible common sense normative context that supports the judgment sought by each of the adversaries. The austere narratives of direct examination attempt to show at a level of almost obsessive detail that the interpretation of the event that was offered in opening is the right one for this particular event. The critical devices of closing argument and

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cross-examination serve to deconstruct these narratives to manifest the gaps between the underlying event and the telling of it. The trial then serves as the critique of the overgenerality of both the law and the common sense of the life-world. These trial languages create an enormously engrossing event long before the jury hears any of the rules. The narrative and dramatic devices through which that engrossing event is created constitute very rich sources of lifeworld norms. We engage in very light policing of the decisions of trial juries and do not deploy all the jury-control devices that we could easily use. (This is particularly true in the criminal context where there are no directed verdicts for the prosecution and no appellate review of judgments of acquittal.) The law of evidence itself is increasingly liberal in what it allows the jury to see. The intense interest the contemporary trial shows for a detailed account of witnesses’ perceptions and an accurate account of past events can thus be justified in ways discontinuous with the received view. That kind of keen attention to simple fact is a crucial aspect of value clarification that goes on at trial. The trial provides for that clarification by dramatizing the enormous tensions between the broader contexts of meaning provided by opening statements and closing arguments, on the one hand, and the enormously, almost obsessively, disciplined and detailed accounts of past events that the constitutive rules of direct examination and cross-examination offer, on the other hand: Still, practical truth emerges at trial from the most demanding tension of opposites y [T]here exist tensions among the questions a juror will put to himself. There are also related tensions among the various linguistic devices that the trial comprises y There are tensions between what a witness wants to say and what he can defensibly and admissibly say. There are tensions among the roles of the judge, the advocate, and the witness, and in jury trials, between the judge and the jury y So the trial is the ‘‘crucible of democracy.’’ What it allows is the emergence of a truth beyond story-telling. (Burns, 1999, pp. 200–201)

The dramatic nature of the trial’s performances serves to deepen those underlying tensions: Witnesses and lawyers tell stories that are internally ‘‘dramatic.’’ Lawyers interact with each other and with witnesses in ways that create the interpersonal tensions associated with drama. Those tensions function positively to reveal, in ways that are only partially articulated, what is at issue in the case. The trial does not just reenact but is itself a set of actions and judgments with enormous consequences – an (in-court) drama about a (realworld) drama. (ibid., pp. 137–138) (references omitted)


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‘‘[T]he main thing is the drama, the conflict of individual situations, of ideas and passions – the clash of characters who are left, so to speak, on their own’’ (Chiaromonte, 1975, p. 31). On the theoretical side, I have tried to give an account of how the trial functions so as to realize the conception of justice most appropriate for us now (Burns, 1999). That conception requires that we identify with attention to the specifics of a particular situation, which of a range of competing social norms is the most important, mercifully not in general, but for this very particular situation. This allows us to be critical of both our common sense and our written enactments without access to transcendent norms. It allows us to forge our moral and political identity in the act of judgment. Most broadly, it allows us do what we need to do to approach justice, ‘‘less to create constantly new forms of life than to creatively renew actual forms by taking advantage of their internal multiplicity and tensions and their frictions with one another’’ (Kolb, 1986, p. 259). This view is consistent with other kinds of theorizing, which serve to complete the circular process of justification mentioned above. For example, some judges and commentators have understood the jury trial to represent the remnant of a kind of ‘‘preconstitutional’’ sovereignty of the people, recognized and enshrined in several of the central Amendments in the Bill of Rights (Amar, 1998, p. 96). In this view, in decline since the late nineteenth century, but recently reasserted, the jury trial exercises a function not unlike, though more basic than, the judicial review of statutes exercised by the courts and serves as part of the constitutional structure of checks and balances. To the extent that legislatures are not fully democratic institutions have been ‘‘captured,’’ to that extent does this view have continued vitality. And this qualification of legislative and judicial authority can occur not only in the relatively rare instances of overt jury nullification but more pervasively in the process of what courts call ‘‘fact-finding’’ and which, as Kalven and Zeisel showed, is pervaded by commonsense normative judgments (Kalven & Zeisel, 1966, pp. 164–166). The contemporary trial as I have described it is important for a number of reasons. It provides a forum where the rigor of the written law may be softened by equitable considerations in its application (Kalven & Zeisel, 1966, pp. 270, 293, 305, 319, 338). This is a traditional function that received its classical formulation in Aristotle’s account of the importance of equitable qualification of legal rules. It offers us a forum where an individual may coherently tell his own story and, aided by a professional whose first allegiance is to the client, offer the evidence that can render that story convincing. In this matter, we are far less dependent on a state official like

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the continental magistrate to decide what questions to ask and what theories and themes to develop. I have suggested that this forensic individualism is appropriate for our relatively individualist society (Burns, 2007, p. 310). The contemporary trial provides a forum where we can take facts seriously in a way discontinuous with the stereotypical scripting of mass-circulation journalism. It allows for a level of ordinary citizen participation in government otherwise not available to us. After all, ‘‘[t]he jury is the most effective instrument for incorporating the diverse ethnic, economic, religious, and social elements of the American society into the justice system’’ (Landsman, 2004, p. 983). This provides for the multiplication of perspectives that can deepen the quality of judgment (Abramson, 1994, pp. 115–121). Over the past forty years, the American jury has been effectively democratized, and our juries now have representations of women and minorities much closer to their percentages in the general populations than in other forums where power is exercised (Abramson, 1994, pp. 99–104). The trial is a forum where those perspectives can exercise real authority. After all, Blackstone’s words have continued vitality, especially when we contemplate the increase in summary proceedings behind closed doors described below: judges’ ‘‘decisions, in spite of their own natural integrity, will have frequently an involuntary bias toward those of their own rank and dignity; it is not to be expected from human nature that the few should always be attentive to the interests and good of the many.’’ The contemporary trial has other importances as well. It provides some touchstones for the inevitable majority of cases that will be settled and allows a citizen to ‘‘stand on principle’’ when compromise is not acceptable. Its availability can resist a corrosive dynamic in which social and economic pressures force all issues to be resolved through informal settlement negotiations that are treated instrumentally and the results of which simply reflect preexistent power relations. As Thomas Green explained, the face-toface nature of the trial has always served as a reminder that legal proceedings bore some relationship to justice (Green, 1985, p. 149). The oral form of the trial continues to establish the twin conditions for the doing of justice, sympathy, and detachment (Beiner, 1984, p. 102). The trial’s dramatic form actualizes the real tensions that exist among the competing values that are in play in virtually all trials and offers the judge or jury a performance appropriate for our largely tacit practical powers of judgment. It provides a space apart from our quotidian concerns and social systems from which we can gain a perspective more responsive to a broader range of moral sources. It serves to qualify bureaucratic and purely instrumental modes of social ordering. Juries usually respond to the meaning of events


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rather than using the event as a means to accomplish some extrinsic social goal. The form of the trial encourages judges to respond the same way. The contemporary trial attempts to create a form of intellectual discipline, ‘‘the discipline of the evidence,’’ (Abramson, 1994, p. 162), which is the result of the trial’s languages. This discipline actually approaches what legal formalism never could achieve: to constrain the discretion of the decisionmaker and root his decision in something ‘‘objective,’’ in this case, the shared practical reason of the community. That practical reason is respectful of the values inherent in the law of rules but reaches beyond it. It allows the judge or jury to make ‘‘objective’’ determinations of the relative importance of the competing values at play in almost all cases that actually get to trial, including those implicit in the law of rules. Although it is very difficult to give an adequate account of this, a study of the contemporary trial tends to support the conclusions that we can make the determinations of relative importance to discern the right path forward (Burns, 1999, pp. 201–219). Finally, the trial is an important public forum, important because American justice ‘‘does not unfold legally and normally’’ when it ‘‘takes place behind closed doors,’’ because ‘‘participants in secret proceedings quickly tend to lose their perspective, and the quality of the proceeding suffers as a consequence’’ (Ball, 1981, p. 46).1 This has a number of different significances. It improves the quality of the deliberations at trial in precisely the way that Ball suggests. It also allows for the public exploration of issues that have broad significance. For example, the trials concerning tobacco, asbestos, and now lead poisoning have raised public awareness of the issues in ways that all forms of publication never could have. This is an idealized picture of the American trial, although I insist that the ideals are situated ideals, embedded in the actual practices of American trials and often actually realized. Painting such a picture is crucial because the real limitations in the American way of litigation tend to cover up the power of the trial itself and tempt us to eliminate or disfigure it. Most of the failures of American trials stem from the market and bureaucratic processes that surround it and sometimes pervade it. Legal services are unfairly distributed. The process of pretrial discovery in civil cases can become an expensive end in itself, unrelated to the task of gathering an appropriate amount of evidence for trial. Although thankfully less often today than in the past, evidence law can be applied in an overtechnical and hamfisted way that distorts the evidentiary base. In criminal cases, there is often insufficient discovery and the defense can go to trial in the most serious of matters without any effective opportunity to interview important witnesses. In criminal cases too, prejudicial pretrial identification methods and coerced confessions have led

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to too many false convictions. Peremptory challenges have been abused. Courts have become too eager to grant summary dispositions and so deny parties the benefits of trial. As I explain in closing, I believe that none of these defects in the surrounding market and bureaucracy is beyond political judgment and action. But we must understand that there is something worth saving in the trial itself to make the effort. There are, however, significant indications that the American trial is currently in statistical decline. Though that decline may well be an aspect of the trial’s present, its implications have not yet been determined, and so, I will return to that question when I consider the trial’s near future.

THE PAST The Anglo-American ‘‘instructional’’2 adversary trial has always been an oral encounter among judge, jury, parties, and witnesses. Again, Thomas Green observed that it was the oral and face-to-face nature of the encounter that served, even in the midst of the greatest unfairness, to keep alive the notion that the trial was about justice3 (Green, 1985, p. 149). But its structure has changed decisively and mainly for the good over the past two centuries. Important and positive changes have occurred even over the past thirty years, which in some ways recover the importance of the trial during the founding period of our republic. It is that development that has produced the practices that I celebrated in the last section. Those practices are more democratic, more reliable, and normatively richer than have prevailed in the past. On the contrary, the evolution has not been unidirectional and it has often occurred that changes in trial practice that have more nearly realized ‘‘the ideal of democracy’’ through the ‘‘the discipline of the evidence’’ have provoked reactions from powerful and aggrieved interests (Burns, 1995, pp. 1490–1491). This is part of what Green calls the ‘‘centuries old dialectic’’ that has surrounded the jury trial (Green, 1985, p. xviii). This plasticity of the shape of trial practices to broader interests, ideologies, and political philosophies calls for the interpretive and critical judgment I mentioned at the outset. The main lines of the trial as we know it were complete by the beginning of the twentieth century. The first half of that century saw the end in the United States and then in England of hyperformal pleading practices in civil cases that were largely ‘‘trial avoiding.’’ In English criminal cases, the adversary criminal trial began to look like the one we know today through a series of specific reforms of a deeply unfair and truly awful set of practices


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that prevailed in the eighteenth century in the run of cases (Langbein, 2003, pp. 43–51). A typical capital case in that unreformed regime would last perhaps twenty minutes, including deliberation! (Langbein, 2003, p. 16) Until these reforms were complete, defendants were first not entitled to counsel and, after they were, their lawyers were not permitted to call witnesses, cross-examine prosecution witnesses or address the jury directly. A large range of testimonial incompetencies prevented key witness – most prominently the parties, including the defendant himself – from testifying. These reforms started earlier and were taken more seriously in the United States than in England, where they were considered an important expression of a more democratic political culture than prevailed in the mother country. The right to a jury trial was a key demand of Americans leading up to the conflict with England and played a central place, perhaps, the central place, in both criminal and civil contexts, in the framing of the Bill of Rights (Amar, 1998, p. 96). Through mid-century, jurors were explicitly considered to be ‘‘judges of the law.’’ The trial judge could offer his opinion as to what the law was, but it was the jury who made the final decision. This notion seems strange to us but was supported by broadly natural law conceptions under which an unjust ‘‘law’’ was no law at all and where ‘‘true law’’ was inevitably congruent with the jury’s moral sentiments. After all, John Adams urged, ‘‘The great Principles of the [English] Constitution, are intimately known, they are sensibly felt by every Briton – it is scarcely extravagant to say they are drawn in and imbibed with the Nurse’s milk and first Air.’’ Or Jefferson, ‘‘The great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors y’’ (Abramson, 1994, p. 88). As the nineteenth century wore on, the ‘‘centuries old dialectic’’ played itself out in ways that qualified the jury’s authority over ‘‘true law.’’ The tension was no longer between democratic consensus and unbridled royal power but between citizens’ contextual moral and political judgment and other sources of power ascendant in the young republic. One other source of power was embedded in the constitutional compromise that established slavery. Another such source lay in the economic interests that embraced the notion of self-regulated markets. Both required legal formalisms necessary to support them. Northern judges understood that ordinary moral sensibilities would not be congruent with the ‘‘pact with the devil’’ embedded in the Constitution’s recognition of slavery and the Fugitive Slave law. To preserve the Union, judges urged that juries be required to follow the law of rules, not ‘‘the great principles of right.’’ Commercial classes demanded the predictability and stability they thought necessary for large investments. Judges emphasized the ordinary citizen’s interest in

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having the rules by which he might be judged in criminal cases to be set down before he acted. As the century drew to a close, financial interests insisted that the needs of finance capitalism and industrial expansion required law – such as contributory negligence in tort law4 – that was also discontinuous with ordinary intuitions of justice. Judges responded to these gaps between legal rules and the moral sensibilities of juries by developing a series of more or less effective ‘‘jury control devices.’’ These included motions for directed verdicts, which replaced the motion for a new trial (which had yielded only a new trial, not a favorable judgment) as the central trial motion. As opposed to the earlier English and American practice, a defendant could make such a motion, lose the motion, and still argue his case to the jury. (In the older practice, a defendant who lost such a motion, lost the entire case, making the motion a very high-stakes gamble and so much more ineligible.) Additionally, as the century rolled on, judges came to grant such motions in the face of greater and greater amounts of opposing evidence, evidence a jury may formerly have relied on to reach a verdict opposed to that which the judge directed. Motions for summary judgments spread out from the narrow confines of debt cases with liquidated damages to become a central feature of civil practice. This centrality was firmly established by the adoption of Federal Rules of Civil Procedure in 1938 so that, as we will soon see, many more federal civil cases are today decided on summary judgment than are resolved at trial and most federal substantive law is created in summary proceedings. Arguably, it was the rise of those jury control devices that made the jurisprudential arguments between formalism and realism so central to our intellectual history. The participants in early nineteenth-century American trials expected that the case would be decided based on ‘‘true law,’’ a confrontation of a detailed account of the facts of the case with the full range of the jury’s moral sources. The question of whether the results in a particular case could be derived, let alone deduced, from legal rules would not have arisen. As cases came to be increasingly decided based on thinner accounts of the facts and as the law of rules came to be more developed and detailed, the legitimacy of judges’ decisions had to be rooted in the meanings of the more strictly legal sources. Holmes’s notion that ‘‘general rules do not decide particular cases’’ was thus a threat to a common justification for the growing employment of the jury control devices developed through the nineteenth century. From a broader perspective, the nineteenth century was recalibrating the tension between a democratic and contextual mode of judgment, rooted in the values of the life-world, and deference to the systems imperatives locked


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within modes of social ordering that did not touch down in the values of the life-world, that operated ‘‘autopoietically.’’ It is true that Mr. Herbert Spencer’s Social Statics invoked natural rights modes of thought as the foundation of the economic system. Prominent constitutional scholars who were defenders of the new system of finance capitalism that was emerging tried to embed those natural rights doctrines in constitutional interpretation, but in a way that was consistent with a ‘‘scientific’’ appreciation of selfregulating economic laws (Twiss, 1942, p. 4). The scientific character of those laws would, of course, greatly reduce the range of application of the kind of contextual moral judgment that the ‘‘discipline of the evidence’’ at trial would likely occasion. If there were scientific laws that the common sense judgment of American juries was incapable of grasping or inclined to ignore, it was important that judges enforced the law’s ‘‘artificial reason,’’ now thought to have a basis in science, on the jury. And, indeed, the trial that emerged from the nineteenth century was far more in control of the judge than had been the case during the founding period. Jury control devices had been developed. The notion that jurors were the judges of the law declined, at least officially. At the end of the century, the Supreme Court approved an instruction in a criminal case that instructed the jury that its duty was to follow the instructions whether or not they agreed with them.5 The law of evidence grew dramatically. That law, which is fundamentally a set of exclusionary rules, allowed the judge to police the evidence the jury would see. By insisting on the ‘‘materiality’’ of evidence received, the judge could reduce the range of factual details that could serve implicitly to evoke life-world norms in deciding the case. But simply by multiplying the number of relatively technical and generally unreviewable determinations, the judge made in ‘‘micromanaging’’ the trial, the law of evidence could ‘‘distort’’ the evidentiary base. Something less than a full story that would answer most of the questions that would naturally occur to the jury would be provided. The jury would be left in the dark as to aspects of the case which would be of normative significance. Such a jury could be forced into an ‘‘artificial’’ mode of decision-making more akin to that envisioned by the received view of the trial. The trial came, then, to reflect more of the values implicit in the law of rules, though those values were never completely dominant. The twentieth century saw a number of distinct and often successful assaults on the notions underlying nineteenth-century jurisprudence. The concept of a self-regulating market following inexorable laws gave way to understandings that allowed for a higher level of control of economic life. The reality or even the possibility of legal formalism was subjected to sustained critique. And the structure of the American trial changed as well.

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The Federal Rules of Evidence, adopted in the federal system in 1975, major parts of which were followed in the states, liberalized and simplified evidence law. The Rules envisioned that a larger range of the factual material offered by both sides would come before the jury and the latter would see a far more complete and concrete picture of the events that led to trial. This policy honored the holistic character of reliable decision-making at trial that depended on often tacit powers to assimilate the vast number of evidentiary details that really were relevant to the case. Liberalization of evidence law also reflected a growing conviction that the jury was an important feature of our fundamental law. Judges recalled that the founders had given the jury such a prominent place in the Bill of Rights because of an expectation that jurors would decide cases based on a range of normative considerations not wholly congruent with the way judges employing the ‘‘artificial reason’’ of the law of rules would (Wolfram, 1973). By the middle of the twentieth century, supporters of the jury system were buoyed by social scientific findings that the jury was too consistently competent (Hastie, Penrod, & Pennington, 1983, p. 230) to be treated as ‘‘paternalistically’’ as had come to be the case by the end of the nineteenth century. The democratic impulses associated with the 1960s also had an effect. The Supreme Court and Congress opened jury service to women and to minorities. The appellate courts became increasingly deferential to jury decision-making. Relatively high standards of review and doctrines of harmless error tended to make decisions in the trial court final. The general verdict remained the most common form of jury decision-making, despite the availability in civil cases of ‘‘special verdicts and interrogatories,’’ which sought to force jury decision-making into the form envisioned by the received view of the trial. Rules against jurors ‘‘impeaching’’ or undermining their own verdict remained in force. The latter prohibited jurors from testifying that they had reached their decisions based on norms broader than those embedded in the law of rules. Seventh Amendment jurisprudence came to require trial by jury in a larger range of situations than had been the case in the nineteenth century. The jury was given an increasingly large role in criminal sentencing. Influential judges defended the liberalization of evidence law as a gesture of deserved respect for American juries: ‘‘Excluding information on the ground that jurors are too ignorant or emotional to evaluate it properly may have been appropriate in England at a time when a rigid class society created a wide gap between royal judges and commoner juries, but it is inconsistent with the realities of our modern American informed society and the responsibilities of independent thought in a working society.’’6


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The trial that we have inherited through this ‘‘centuries-old dialectic’’ comprised in an increasingly open way the deep tensions that existed between contextual moral evaluation and self-consciously formalistic modes of thought. These tensions were not accidents of institutional design but reflected some of the very deepest and defining tensions that have pervaded our history. We have seen how that history shows a continuing tension between informal and face-to-face governance and impersonal systems, in particular, more or less self-regulating markets obeying general laws. Likewise, it showed tensions between deference to authority and democratic, even populist, governance and between response to the meaning of human events as judged by our full range of cognitive abilities and a more instrumental style of thinking.

THE NEAR FUTURE In recent years, there has been an accelerating ‘‘implosion’’ in the number of cases going to trial. Marc Galanter of the University of Wisconsin has done the key empirical research documenting this major challenge to the future vitality of the American trial (Galanter, 2004, p. 459). Here is a barest summary of his findings: In 1962, approximately 11.5 percent of civil cases went to trial in the United States. By 2002, the number had fallen to an astounding 1.8 percent. Though the absolute number of civil filings had increased since the 1980s, the absolute number of trials had fallen. Those declines are even more dramatic when compared to the size of the population and the economy (Galanter, 2004, p. 460). Although data is harder to come by, it appears that a similar decline had occurred in the state courts. In federal civil cases, the percent of jury trials had fallen from 5.5 percent of dispositions in 1962 to 1.2 percent in 2002, and bench trials from 6.0 of dispositions to 0.6 percent of dispositions in 2002. And, for the few cases that actually got to trial, it took 25 percent longer to get to trial in 2000 than it did in 1962. Although the changing mix of cases filed in federal court has some effect on the number of cases tried, it could not have been decisive: the percentage of cases tried decline in every category. In 1975, twice as many cases were resolved by trial than were resolved by summary judgment without trial. By 2000, an amazing three times as many cases ended by summary judge as ended at trial. Stephen Burbank (Burbank, 2004, p. 591, 620) found that between 1960 and 2000, the percentage of cases resolved by summary judgment in the districts he studied increased 350 percent, from 1.8 percent to 7.7 percent. This was an accelerating development: in one

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district court, while the percentage of cases resolved by summary judgment increased fourteen percent between 2000 and 2003, the percentage of trials dropped sixty percent. There has been a similar, though not quite so drastic development in the criminal courts, where summary dispositions are not available and where plea bargaining is the major trial avoidance method (Fisher, 2003). The percentage of federal criminal cases going to trial has dropped from 15 percent in 1962 to 5 percent in 2002 (Galanter, 2004, pp. 492–493). Similar trends exist in the state courts. This decline in the number of trials does not at all mean that the law is a less pervasive institution in American life. Indeed, virtually every other aspect of the legal world has grown: ‘‘there are more statutes, more regulations, more case law, more scholarship, more lawyers, more expenditure in public consciousness’’ (Galanter, 2004, pp. 522–523). Commentators have just begun to try to explain these developments, and these very preliminary explanations have taken quite different forms. Some have noted that there appears to be some convergence between American litigation and continental styles of adjudication. These ‘‘inquisitorial’’ styles do not have a single plenary, oral, and dramatic event like the American trial. Rather they involve an ongoing inquiry in which the presiding magistrate takes the lead. It ends only when that magistrate is satisfied that he or she has enough information and in which searching reexamination at the appellate level is an expected, rather than an extraordinary aspect of the process (Damaska, 1986). I have suggested that these inquisitorial methods may be more appropriate for hierarchically structured ‘‘organic’’ societies (Burns, 2003a, p. 465). Others have suggested that trials have been replaced by other ‘‘trial-like’’ events such as arbitrations and administrative hearings. These other forms of adjudication are often significantly different from the common law trial. They never employ the lay jury and so do not naturally provide for the centrality of life-world norms in the way that the jury trial does. The judges are professionals and so can ‘‘get used to it’’ in a way that prevents them from seeing the significance of the details of each case. Sometimes they are subject to bureaucratic controls. They tend to be less formal than is the common law trial. It is the formality (as well as the dramatic nature) of the trial that increases the level of tension among competing norms in a way that can deftly locate the specific facts of the case within the complex normative constellation that defines our forms of life (Burns, 1999, pp. 183– 219). The formality allows more of the quite opposed interests and perspectives to be represented. It makes the trial a more comprehensive institution, which can be assigned more important roles. It allows the trial to


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do precisely what we need it to do, incrementally to adjust the basic structure of our society in light of norms whose relevance must be fought out in very particular contexts, so we can renew our forms of life ‘‘by taking advantage of their internal multiplicity and tensions and their frictions with one another’’ (Kolb, 1986, p. 259). Trials have traditionally been understood to provide a discontinuous ritual space from which disruptive events can properly be evaluated. Commentators have noticed the way in which the decline in the centrality of the trial represents a decline in the differentiation of social practices and modes of social ordering (Galanter, 2006, p. 27). The concern here is that society will become more monolithic, more bureaucratized, without any institutional place to stand effectively to criticize and cabin the primarily economic forces that can pervade even legal processes. There will be fewer ‘‘spaces of freedom.’’ Again, this is more an interpretation than a causal explanation, except insofar as it suggests that those forces, acting through incentives that operate on key legal actors, are, consistent with their own internal logic, attempting to assimilate all sources of authority to that logic. Other commentators have focused on the self-understandings of key actors within the legal system. This is, of course, not inconsistent with some of the more global explanations just described. After all, all economic and cultural determinisms must work through the actions of individuals. It may be that judges have come to relish the informal power they have to pressure litigants into accepting settlements without formal proceedings. As Bentham noted, ‘‘Publicity is the very soul of justice y It keeps the judge himself, while trying, on trial’’ (Resnick, 2004, p. 831, n. 234). Judges may come to be more comfortable out of public scrutiny, particularly as elected state judges must endure the burdens of election campaigns where, increasingly, their public performances can be (sometimes unfairly) criticized. This averseness to trial may be supported by honest conviction that the processes of negotiation offer the parties a greater flexibility in tailoring a solution to their ‘‘problematic situation’’ than the rigid and binary decision situation at trial. This may well be true, but litigants should be able to ‘‘stand on principle’’ in some situations and ought not to be deprived of that opportunity by the trial judge’s use of his large range of discretionary powers effectively to present to the parties offers they cannot refuse. Not only judges but also lawyers may come to be increasingly trial-averse. Processes of discovery which are relatively less professionally demanding than trial can become ends in themselves, supported by the omnipresent billable hour (Shepherd & Cloud, 1999). Trial skills may atrophy, along with a ‘‘situation sense’’ for what is a triable case and what is not.

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In the criminal courts, the decline of the trial is, of course, directly related to the ‘‘plea bargaining’s triumph.’’ That is, of course, a long and complex story (Fisher, 2003). Briefly, plea bargaining has triumphed because it was strongly in the interests of the legal officials who controlled the courts, notably prosecutors and judges. More recently, the growth of minimum sentences has provided prosecutors additional leverage to charge bargain downward. Provisions, such as those in the federal sentencing guidelines, that allow for a downward reduction in sentence for someone who ‘‘accepts responsibility’’ has made plea bargaining yet more attractive to many defendants. It has occurred to me to ask whether the trial has become less attractive because its own practices and procedures are defective (Burns, 2003b). There certainly have been sensible recommendations for reform of some of those practices and procedures. A recent American Bar Association blue-ribbon committee, for example, has recommended initiating one-day-one-trial systems for jurors,7 returning to the twelve-person jury where it has fallen out of use, purging the jury instructions of legalese, and controlling the length of trials by imposing reasonable time limits on the presentation of evidence (American Bar Association, 2005). Other reasonable suggestions have been made (Abramson, 1994, pp. 247–250). There is certainly no reason why we should not try to improve the institutionalized practices in which we are engaged. I am skeptical, however, that these reforms, however sensible, will really address the features of the trial, which are related to its decline. Rather, it is precisely those aspects of the trial which I described in the first section of this chapter, that is, those qualities that express the trial’s strengths that have provoked the decline I attempted to identify and begin to diagnose in this section. It is because the trial is discontinuous with and attempts to be more comprehensive than other modes of social ordering that it is under assault. It is as if the market and bureaucratic structures that surround the trial and on which it necessarily depends have mobilized antibodies to attack an alien life form. From a normative point of view, this is ironic, because those very market and bureaucratic forces are actually responsible for what is most justly criticized in the American way of litigation (Dwyer, 2002, pp. 111–129). The trial depends on police bureaucracies to develop the evidence that is presented in criminal cases. Unfortunately, police practices, including suggestive line-ups and coercive interrogations, seem to have been the cause of many of the false convictions that have plagued the criminal justice system (Gross & Obrien, 2007). Maldistribution of legal resources usually disadvantage criminal defendants and sometimes the prosecution. In civil litigation, the economic incentives can skew the resources invested in


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particular cases. Nonetheless, the trial’s internal ideals have survived these distortions and over the past thirty years, with the liberalization of the law of evidence and the greater reach of the Seventh Amendment, for example, actually somewhat expanded their reach. It is that continuing vitality of the trial as a source of social power that places it in jeopardy. It is as if ‘‘the systems’’ have determined that if constitutional and legislative decisions are going to allow trials more fully to realize their internal ideals, then we will increase pressure to have fewer of them. I do not believe this is the result of any overt conspiracy, but of the working out of the internal logics of markets for legal services and affected bureaucracies. This is exactly what Galanter’s notion that the decline of the trial is symptomatic of a decreasing differentiation of social spheres suggests. Market and bureaucratic imperatives will work through the incentive structure that affects the key actors in the legal system. There will be fewer ‘‘realms apart’’ from which judgment can be passed on those imperatives. In Arendt’s terms, discrete spheres, each with its own spirit, will no longer be able to ‘‘redeem’’ each other. We will lose a forum in which we can ‘‘creatively renew actual forms [of social practice] by taking advantage of their internal multiplicity and tensions and their frictions with one another’’ (Kolb, 1986, p. 259).

THE MORE DISTANT FUTURE This review of the explanations for the statistical decline of the American trial suggests that it is the result of powerful forces unlikely to relent in the near future. If I was even close to being right in the first and second parts of this article, where I described the trial’s contemporary and historical significance, and the third, where I described some of the forces that seem to be involved in its decline, there are good reasons that we as a political community should want to halt, indeed reverse, that decline. Hannah Arendt’s husband, Heinrich Blucher, was fond of saying, ‘‘Pessimists are cowards and optimists are fools.’’ Since I relish being neither a coward nor a fool, this final section must be quite short. The better explanations of the decline of the trial we offer, the more they seem to have a quality of inevitability about them. This is what Arendt most feared about the most comprehensive and brilliant sorts of explanation of important historical events, such as those that Hegel offered. Practitioners of those sorts of explanations seem to have a natural affinity to cultural pessimism. Those explanations can rob us of any notion that we can still act politically to change course in the spaces of freedom we have. The trial itself is one

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such space of freedom, but appellate courts and legislatures can be as well. That their behaviors may all be studied as dependent variables does not mean that they may not be sources of autonomous political action. At the level of theory, the intelligent practices in which we engage at trial should be ‘‘reconstructed,’’ should be shown to realize their human purposes, not explained solely as dependent variables fully determined by inexorable social forces (Burns, 1999, pp. 3–5). Practically, we must appeal to other spaces of freedom within our political and legal communities to recover and appreciate the significance of the trial. Appellate courts and legislatures will have to pay close attention to the best diagnoses of the decline of the trial and change both incentives and rules to encourage the trial’s recovery. Social scientific inquiry can be very helpful in this effort. We are just at the very beginning of this process. Some courts have experimented with the reforms suggested by the American Bar Association for the conduct of trials. This is a benign development, but once again, I am skeptical that it will halt the decline of the trial that our recent history has witnessed. For that decline is, it seems, rooted in the pressures that the surrounding market and bureaucratic systems are exerting. Legislatures and courts will have to develop other means and strategies. In a major Seventh Amendment case, Teamsters Local No. 391 v. Terry,8 Justices Stevens and Brennan, while concurring with the result, disagreed with one another about the right way of thinking about the jury trial. The case concerned the availability of a jury trial in an action for back pay for a union’s breach of its duty of fair representation. Both justices agreed that a jury trial was appropriate, based on the Seventh Amendment which provides in relevant part: ‘‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved y’’ The textual reference to ‘‘preserving’’ the right and the qualification of its extension to ‘‘suits at common law’’ had led the Court to develop a rather refined set of doctrines for analyzing the right to a jury trial. A number of fairly willful early federal court rulings identified the appropriate issue as whether or not the action or issue at hand would have been tried in England in a common law, as opposed to an equity court in the year the Seventh Amendment was adopted, 1791. This definition of the issue led to a number of recurring problems, one of the most important of which was what to do about usually statutory causes of action that did not exist in 1791 and which had come to dominate the federal jurisdiction. The inquiry addressed the nature of the remedy sought9 and then attempted to identify the closest analogy of the issue at hand to an action that did exist in 1791. In a case decided twenty years before Terry, the Court had seemed to add a third


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variable, ‘‘the practical abilities and limitations of juries.’’10 The Terry court followed its traditional analysis without mentioning this third factor. Justice Stevens concurred in the judgment, disagreed about one aspect of the plurality’s historical analysis, and then seemed to echo the third ‘‘functional’’ factor in arguing that the ‘‘common sense understanding of the jury, selected to represent the community, is appropriately invoked when disputes in the factory, the warehouse and the garage must be resolved.’’ Because the case at bar required an ‘‘understanding of the realities of employment relationships’’ it was ‘‘typical grist for the jury’s judgment.’’ Justice Brennan also concurred in the judgment and urged that the traditional historical test be simplified but did not allow even the slightest hint of a ‘‘functional’’ analysis of the appropriateness of a jury’s judgment to enter his opinion: I believe that it is imperative to retain a historical test, for determining when parties have a right to jury trial y It is mandated by the language of the Seventh Amendment and it is a bulwark against those who would restrict a right our forefathers held indispensable.11

I interpret the ‘‘conservative’’ interpretive approach that Justice Brennan took as rooted in an intuition that any ‘‘functional’’ determination of the appropriate range of jury trial decision-making by contemporary judges would almost inevitably be too much affected by today’s dominant modes of thought. Those modes of thought are too deferential to the internal logic of the very systems worlds with which the trial has always stood in tension. Contemporary judicial intuitions about where the jury trial would best function would likely fail properly to ‘‘recover’’ the deeper meanings the trial has embodied throughout our history and which can still be discerned in its languages and practices. It would fail to appreciate the trial’s richness and its conservative role in protecting us from the full ‘‘onslaught of modernity’’ (Arendt, 1991, p. 196).

NOTES 1. Ball is quoting the California appellate court in Oxnard Publishing Co. v. Superior Court, 68 Cal. Rptr. 83, 95 (2nd Dist. 1968). 2. The ‘‘instructional’’ trial stands in contrast to the ‘‘self-informing’’ trial of earlier English history. In the latter, the jury was expected to have relevant knowledge of the event being tried or be able to obtain it through its own extrajudicial efforts. 3. Green’s observation is consistent with Emmanuel Levinas’s argument that the moral dimension of human life is rooted in face-to-face encounters between human

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beings, something that is more fundamental than any theoretical elaboration of the nature of being (Levinas, 1996, pp. 8–12). 4. In a contributory negligence regime, the defendant would be relieved of all liability if the plaintiff were, even in the slightest degree, negligent as well. 5. Sparf and Hansen v. United States, 156 U.S. 51 (1895). 6. United States v. Shonubi, 895 F. Supp. 460, 493 (1995) (Jack Weinstein). 7. Under that system, a prospective juror remains available for one day if he is not chosen to be a juror and for the completion of one trial if he is. 8. 494 U.S. 558 (1990). 9. To oversimplify, equity courts granted prospective remedies, such as injunctions, and common law courts granted money damages. But there were difficult middle cases, such as restitution, which were viewed to be an equitable remedy. 10. Ross v. Bernhard, 396 U.S. 531 (1970, n. 10). 11. 494 U.S. 558, n. 7.

REFERENCES Abramson, J. (1994). We the jury: The jury system and the ideal of democracy. Cambridge: Harvard University Press. Amar, A. (1998). The bill of rights: Creation and reconstruction. New Haven: Yale University Press. American Bar Association. (2005). Principles for juries and jury trials. Chicago, IL: Thompson West. Arendt, H. (1991). On revolution. New York: Penguin Classics. Ball, M. (1981). The promise of American law. Athens: University of Georgia Press. Beiner, R. (1984). Political judgment. Chicago: University of Chicago Press. Burbank, S. (2004). Vanishing trials and summary judgment in federal civil cases: Drifting toward Bethlehem or Gomorrah? Journal of Empirical Legal Studies, 1, 591–626. Burns, R. (1995). The history and theory of the American jury: Review essay. California Law Review, 83, 1490–1491. Burns, R. (1999). A theory of the trial. Princeton: Princeton University Press. Burns, R. (2003a). A response to four readings of A Theory of the Trial. Law & Social Inquiry, 553–567. Burns, R. (2003b). A conservative perspective on the future of the American jury trial. ChicagoKent Law Review, 78, 1319–1357. Burns, R. (2004). The distinctiveness of trial narrative in the trial on trial: Truth and due process. In: A. Duff, L. Farmer, S. Marshall & V. Tadros (Eds). The trial on trial, Vol. 1, Oxford: Hart Publishing. Burns, R. (2007). The rule of law in the Trial Court. Depaul Law Review, 56, 307–333. Chiaromonte, N. (1975). On Pirandello’s clothing the naked (Vol. 22, p. 31). New York: New York Review of Books. Damaska, M. (1986). The faces of justice and state authority: A comparative approach to the legal process. New Haven: Yale University Press. Dwyer, W. (2002). In the hands of the people: The trial jury’s origins, triumphs, troubles, and future in American democracy. New York: St. Martin’s Press. Fisher, G. (2003). Plea bargaining’s triumph. Stanford: Stanford University Press.


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Galanter, M. (2004). The vanishing trial: An examination of trials and related matters in federal and state courts. Journal of Empirical Legal Studies, 1, 459–570. Galanter, M. (2006). A world without trials. Journal of Dispute Resolution, 2006, 7–32. Geertz, C. (1983). Local knowledge: Further essays in interpretive anthropology. New York: Basic Books. Green, T. (1985). Verdict according to conscience: Perspectives on the English criminal trial by jury 1200–1800. Chicago: University of Chicago Press. Gross, S., & Obrien, B. (2007). Frequency and predictors of false conviction: Why we know so little and new data on capital cases. SSRN.com/abstract ¼ 1018458 Hastie, R., Penrod, S., & Pennington, N. (1983). Inside the jury. Cambridge: Harvard University Press. Kalven, H., & Zeisel, H. (1966). The American jury. Boston: Little Brown. Kolb, D. (1986). The critique of pure modern: Hegel, Heidegger and after. Chicago: University of Chicago Press. Landsman, S. (2004). So what? Possible implications of the vanishing trial phenomenon. Journal of Empirical Legal Studies, 1, 973–984. Langbein, J. (2003). The origins of the adversary criminal trial. Oxford: Oxford University Press. Levinas, E. (1996). Basic philosophical writings. In: A. T. Peperzak, S. Critchey & R. Bernasconi (Eds), Emmanuel Levinas: Basic Philosophical Writings. Bloomington: Indiana University Press. Luban, D. (1994). Legal modernism. Ann Arbor: University of Michigan Press. Rawls, J. (1971). A theory of justice. Cambridge: Harvard University Press. Resnick, J. (2004). Migrating, morphing, and vanishing: The empirical and normative puzzles of declining trial rates in courts. The Journal of Empirical Legal Studies, 1, 783–841. Shepherd, G., & Cloud, M. (1999). Time and money: Discovery leads to hourly billing. University of Illinois Law Review, 91–165. Twiss, B. (1942). Lawyers and the constitution: How Laissez-faire came to the supreme court. Princeton: Princeton University Press. White, J. (1999). From expectation to experience: Essay on law and legal education. Ann Arbor: University of Michigan Press. Wolfram, C. (1973). The constitutional history of the seventh amendment. Minnesota Law Review, 57, 639.

STORIES FROM THE JURY ROOM: HOW JURORS USE NARRATIVE TO PROCESS EVIDENCE Robin H. Conley and John M. Conley ABSTRACT This chapter analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors’ standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jurors evidenceprocessing and thinking more broadly about the strengths and weaknesses of the jury system.

1. INTRODUCTION As we consider the past and the present of the American trial and speculate about its future, there is one central constant: the jury. Whatever else may change, the muscular presence of the Seventh Amendment (abetted by state constitutional provisions that are often even stronger) continues to shelter Studies in Law, Politics, and Society, Volume 49, 25–56 Copyright r 2009 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049005

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the jury in the face of demands for efficiency, accountability, and rationality. In view of this, it is remarkable that, more than 200 years after the adoption of the Seventh Amendment, we still know very little about what actually happens in the jury room. In 1981 Lance Bennett and Martha Feldman published Reconstructing Reality in the Courtroom, a compelling account of the stories that are told to jurors in the courtroom. In this chapter, we present an account of the stories told by jurors in the jury room. Using published excerpts of deliberations in a 1986 criminal case, some recently published partial transcripts of jury deliberations in several civil cases, and a previously unpublished linguistic transcript of the complete deliberations in a single civil case, we analyze the ways in which jurors receive, discuss, and evaluate evidence. The overarching point is that jurors use everyday conversational resources in their efforts to process the often-conflicting accounts that they hear. As Bennett and Feldman demonstrated, lawyers try to frame their evidence so as to comport with the conventions of everyday storytelling, or narrative. Our data suggest that jurors attend to those same conventions as they co-produce the master narrative that will become the basis for the verdict. Judges routinely instruct jurors to use their common sense and everyday experience in evaluating evidence. On a linguistic level, it is clear that they are doing so. This is consistent with the observation that Harold Garfinkel (1967, p. 112) made 40 years ago after interviewing jurors about their deliberations: ‘‘The rules of everyday life, as well the rules of the official line, are simultaneously entertained.’’ It is also consistent with the conclusion reached by Nancy Pennington and Reid Hastie (1993), on the basis of experimental social psychology, that individual jurors ‘‘impose a narrative story organization on evidence’’ (ibid., p. 194) and that ‘‘the story the juror constructs determines the juror’s decision’’ (ibid., p. 193). In their ‘‘story model,’’ a juror composes different narratives based on the evidence and then tests them against one another to decide upon a final version. The story that displays the greatest coverage of the evidence and is most coherent is accepted as the best explanation and in turn becomes the basis for the juror’s decision. A further piece of consistent evidence about the role of narrative in legal decision-making is Douglas Maynard’s (1990) study of narrative structure in plea bargaining discussions among judges, prosecutors, and defense lawyers. Analyzing tape recordings of those discussions, Maynard (1990, p. 66) identified such ‘‘narrative components’’ as background segments, action reports, and reaction reports, and documented some of the ways in which, through narrative, ‘‘participants bring to life such factors as the law,

How Jurors Use Narrative to Process Evidence

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organizational ‘roles’, and even the identity of a defendant.’’ He concluded (ibid., p. 66) that ‘‘[i]t is through narrative that actors make decisions and effect ‘outcomes’.’’

1.1. Listening to Real Jurors The effort to get inside the jury room for research purposes got off to a very bad start. In the mid-1950s, during the research that led to their famous book, The American Jury, Harry Kalven and Hans Zeisel recorded five actual civil jury deliberations in Wichita, Kansas, with the consent of the judge and the lawyers but without informing the jurors. When this became public in 1955, the Attorney General of the United States censured them, a Senate committee conducted hearings, and Congress and a majority of states passed legislation forbidding ‘‘jury-tapping’’ for any purpose, including research (Kalven & Zeisel, 1966, pp. vi–vii). The Wichita data disappeared forever, and no researcher has been permitted back into a jury room (Diamond, 2006, p. 723) – until now. There is at least one partial exception to that generalization. In 1986, the PBS Frontline series broadcast a one-hour program entitled ‘‘Inside the Jury Room,’’ which was described as a recorded broadcast of the actual deliberations in a Wisconsin criminal trial. Sometime thereafter, the sociologists and conversation analysts Douglas Maynard and John Manzo obtained from the producer a tape of ‘‘almost the entire’’ 2.5-hour original deliberation (Maynard & Manzo, 1993, p. 176). They analyzed various linguistic and sociological aspects of the deliberations and published their findings in several articles addressed to various law and social science audiences (Maynard & Manzo, 1993; Manzo, 1993, 1994, 1996). Manzo’s individual publications also analyzed a videotaped deliberation from an otherwise unidentified ‘‘civil case, a dispute over a home-building contract’’ (Manzo, 1993, p. 272). These various publications include extensive transcript excerpts; although not all are of the sort that conversation analysts and linguists use for their most technical analyses, they are highly detailed. Despite their unique access to actual jury deliberations, it appears that Maynard and Manzo’s work has never been cited in the legal literature. In Section 2.1 of this article we resurrect this important work, in particular those aspects of it that bear on jurors’ narrative practices. In 1994, a committee appointed by the Arizona Supreme Court issued a report that advocated a number of significant changes in jury trial procedure (Arizona Supreme Court, 1994). The most controversial was a proposal to

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modify the traditional rule that jurors may not discuss the evidence until they are sent out to deliberate at the end of the case. As ultimately adopted, the new Arizona rule permits civil jurors ‘‘to discuss the evidence among themselves in the jury room during recesses from the trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence’’ (Arizona Rule of Civil Procedure 39(f ); see Diamond, Vidmar, Rose, Ellis, & Murphy, 2003, p. 7). Thereafter, the Arizona Supreme Court asked Shari Diamond and several social science colleagues to undertake an empirical assessment of the practical impact of this and other changes in Arizona jury procedure. As part of their work, Diamond and her collaborators conducted an experimental study of 50 trials in an Arizona county trial court, some of which used the new jury-discussion provision and some of which were randomly assigned to a ‘‘no-discuss’’ condition. Significantly, the Diamond group was permitted to videotape all jury discussions and deliberations in the 50 cases, from start to finish. In 2003, Diamond and her colleagues reported the results of this study in the Arizona Law Review. The core of the report addresses such questions as how often and under what circumstances the jurors engaged in predeliberation discussions, what matters were discussed, whether the discussions improved the accuracy of jurors’ recall, and whether the jurors complied with their instructions not to prejudge to evidence. As part of the analysis, ‘‘[q]uasi-transcripts were created for all discussions and deliberation periods in order to capture the verbal interactions of the jurors’’; these transcripts ‘‘allow detailed analysis of the content of juror discussions, that is, what jurors said, when, and in the presence of which other jurors’’ (Diamond et al., 2003, pp. 19–20). The principal evidence in the report is quantitative, but the authors do present numerous excerpts from the transcripts to illustrate their findings. Although these transcripts were not prepared for purposes of linguistic analysis, we find them to be an intriguing linguistic resource. They were not created to make a complete record of every sound uttered in the jury room, and thus, they are not suitable for some of the kinds of work that conversation and discourse analysts do – for example, studying overlapping speech, pauses, and phonological details. Nonetheless, as Diamond et al. state, they ‘‘are quite detailed in their reporting and in most instances quote directly or closely paraphrase what each juror said’’ (Diamond et al., 2003, pp. 19–20); in most instances, the paraphrases are intended to prevent identification of a particular case.1 Most importantly, despite the limitations of these transcripts from a linguistic perspective, they are far better than


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nothing, which is what has been available until now. Therefore, in Section 2.2 of this chapter, we present a necessarily tentative analysis of some of the narrative practices that they reveal. In addition, one of the present authors (RHC) assisted in the transcription and coding of the transcripts in the Arizona project. The principal investigators permitted her to make a full linguistic transcript of the jury discussions and deliberations in one of the cases they studied. In Section 3, we present a more detailed analysis of the narrative practices that are evident in this transcript. It represents only a single case, of course, so we can say nothing about the distribution or frequency of linguistic phenomena. Nonetheless, consistent with the conventions of discourse analysis, we will offer it as qualitative evidence of the range of practices found in the speech of at least one real jury.

1.2. Stories and Narratives Bennett and Feldman (1981, p. 7) define stories as ‘‘everyday communication devices that create interpretive contexts for social action.’’ As Patricia Ewick and Susan Silbey (1998, p. 242) put it, ‘‘storytelling is a conventional form of social interaction, among the ways we come to know each other, encounter the larger world, and learn about its organization.’’ More specifically, ‘‘[i]n everyday social situations people use stories as a means of conveying selective interpretations of social behavior to others’’ (Bennett & Feldman, 1981, p. 7). In form, a story typically ‘‘provides for the development, climax, and denouement of action in the context of a defined collection of actors, means, motives, and scenes’’ (ibid.). In effect, ‘‘a story not only focuses attention and judgment on certain key behavior (and the actors’ relations to it), it also has the capacity to constrain a clear understanding about the significance of that behavior’’ (ibid.). ‘‘Story’’ and ‘‘narrative’’ are often used interchangeably in what we shall collectively term ‘‘the discourse literature’’ (including the frequently overlapping fields of linguistics proper, linguistic anthropology, conversation analysis and related techniques rooted in sociology, and various forms of discourse analysis). For example, in an introductory section to The Common Place of Law: Stories from Everyday Life, the sociologists Ewick and Silbey (1998, pp. 28–31) use the terms as apparent synonyms. In that same section, which is headed ‘‘A Word about Stories,’’ they make the important point that they ‘‘adopted the concept of narrative because people tend to explain their actions to themselves and to others through stories’’

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(ibid., pp. 28–29). They go on to point out that ‘‘narratives can enter scholarly research as either the object, the method, or the product of inquiry.’’ That is, researchers can study narratives/stories as a form of social action, they can use stories as data in an effort to understand something else, or they can use the story ‘‘as a metaphor to represent what [they] have discovered’’ (ibid.). Our focus will be primarily on the first of these, with occasional digressions into the second. A great deal has been written about the social, strategic, and rhetorical practices that characterize everyday storytelling. An early and still influential model of narrative structure is that of the sociolinguist William Labov (1972). Labov characterized a narrative as a sequence of ‘‘clauses’’ that match up with a sequence of ‘‘events which (it is inferred) actually occurred’’ (ibid., p. 360; see Johnstone, 2001, p. 637). The narrative clauses fall into several functional categories, including the abstract or summary; the orientation or introduction of time, setting, and characters; the complicating action clauses, which recapitulate events leading up to the climax; the result or resolution; one or more evaluation clauses, which permit the narrator to comment on the story; and a coda, which announces the end of the story. Elaborating on the Labov model, the linguist Wallace Chafe (2001, p. 677) has proposed ‘‘a ubiquitous schema for narrative topic development’’ that consists of summary, initial state, complication, climax, denouement, final state, and coda. The discourse literature emphasizes the social aspect of stories. The anthropologist Charles Briggs (1996, p. 14) writes that ‘‘the manner in which stories are presented and used is often contingent upon their being framed as embodiments of shared beliefs and understanding.’’ Relatedly, ‘‘narratives do not simply describe ready-made events; rather, they provide central means by which we create notions as to what took place, how the action unfolded, what prompted it, and the social effects of the events’’ (ibid., p. 23). Narratives, in other words, comprise a ‘‘process of social construction’’ (ibid.). In examining this process, it can be useful to think of storytelling as a metadiscursive practice, as the production of ‘‘discourses that seek to shape, constrain, or appropriate other discourses’’ (ibid., p. 19). Any given narrative, that is, is not only shaped by its own discursive context, but can build upon, incorporate, and reformulate prior discourses. The discourse literature also stresses the social component of the production of stories, as ‘‘narration often takes the form of co-narration, involving a complex process of determining who tells what and how’’ (ibid., p. 14). The boundary between teller and audience may be elided because ‘‘beliefs, values, and attitudes are not so much transmitted from teller to audience as they are


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collectively and dialogically engendered’’ (Ochs, Smith, & Taylor, 1996, p. 109). Indeed, ‘‘the audience may be allowed to say more about what went on than the one who uttered the original utterance(s)’’ (Duranti, 1986, p. 241). Specifically, ‘‘members of an audience have [conversational] resources available to them for (1) Analyzing the talk that is being heard, (2) Aligning themselves to it in a particular way, [and] (3) Participating in the field of action it creates’’ (C. Goodwin, 1986, p. 297). As a consequence, the very process of co-production may yield a story that is different in both form and content from the one that an individual narrator sets out to tell. The interaction between teller and audience regularly involves the phenomenon of ‘‘second stories’’ (Sacks, 1992 [orig. 1968]), in which the hearer of an initial story produces ‘‘a systematic transformation’’ whose ‘‘parasitic organization displays a relevant analysis of the prior story’’ (M. Goodwin, 1990, p. 251). In an example provided by Marjorie Goodwin (ibid., p. 93), the second teller ‘‘first analyzes [the first teller’s] talk as providing a structured, coherent scene that links features of the setting, participants, and action to each other in a particular way, and then systematically transforms that framework to build a new, hypothetical scene that supports his claim rather than [the first teller’s].’’ All these points are directly relevant to the stories that jurors presumably tell. If story structure is, as Chafe contends, ‘‘a ubiquitous schema,’’ then we would expect jurors to follow it as they assemble evidence into a narrative of the case. Given the nature of their task, jurors must necessarily find and act on shared beliefs and understandings. Jurors are not provided with a script of ‘‘ready-made events’’ (Briggs, 1996, p. 23); instead, they hear fragmentary and often conflicting accounts of highly contested events. Thus, in an important way, jurors have no choice but to ‘‘create notions as to what took place’’ (ibid.). And a jury narrative is by definition a metanarrative, necessarily building upon, incorporating, and reformulating the stories that witnesses have told in the courtroom. As this process of ‘‘creating notions’’ unfolds, jurors lay claims to authority for their positions. A frequent tactic is to associate one’s position with a ‘‘rule’’ drawn from experience. As we shall see repeatedly, an important device for positing rules is the if/then conditional. A juror states the general proposition that if a specified condition occurs, then a certain conclusion usually ensues, and applies that reasoning to the facts at hand. A narrative constructed by twelve (or six) people is also likely to be a prime instance of co-production, with the interactive properties that have been documented in everyday situations. An especially useful analogy is provided by the work of Ochs et al. (1996) on ‘‘detective stories’’ that are

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co-produced around the dinner table. Their description of the detective story offers a promising model for the development of a master narrative, or verdict, in the jury room: A story with a setting, an initiating event, and subsequent responses is presented and could be treated by those co-present as complete; however, the mark of the detective story is that somebody persists in examining the narrative problem beyond this point, eliciting or introducing the relevant information not provided in the initial version of the storyy. The information that surfaces may lead to a reanalysis of the earlier story’s central problem. Such information thus recontextualizes the earlier story not as the story but a story, that is, only one version of the narrated events. (ibid., p. 99)

A final introductory point concerns a methodological premise common to most forms of discourse analysis, and significant to the data analysis in this chapter: the importance of the fine-grained, qualitative analysis of actual speech, ‘‘particular utterances in a particular context’’ (Schegloff, 1992, p. xxv). Organizing and conducting spontaneous, unrehearsed, and often un-self-conscious exchanges of speech – conversation – is probably the most common of human social activities, and certainly among the most complex. The analysis of this mundane yet elemental social process thus provides a unique window on the production of the emergent phenomenon we recognize as social order, in large part because the participants (unlike the authors of a written text) rarely expect it to be analyzed. As Monica Heller (2001, p. 252) has vividly put it, it is ‘‘possible to uncover the normative order indexed by interactional routines by breaching those routines and watching all hell break loose.’’ This premise, we believe, is as valid in an institutional setting such as the jury room as in a more everyday context such as the dinner table.2 We turn now to an examination of some of the available jury room discourse data to assess the role that such everyday storytelling conventions might play in the jury deliberation process.

2. PUBLISHED TRANSCRIPTS 2.1. Maynard and Manzo Maynard and Manzo’s 1993 paper, published in a sociology journal, dealt exclusively with the criminal deliberation recorded by the PBS Frontline program. That case involved the doctrine of jury nullification, which permits a jury to ignore its instructions to avoid what it perceives to be an unjust conviction and thus to acquit a defendant regardless of the strength of the


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evidence. The defendant was on trial for violating his parole by acquiring a gun. Although there was no question that he had done so, the case was complicated by the facts that the defendant had originally been attracted by an antique gun, that he had bought a gun as part of a ‘‘detective course’’ advertised in a magazine, and that he apparently had limited mental capabilities. The authors focus on the jury’s concept of ‘‘justice.’’ Taking an ethnomethodological approach to the deliberations, they reject the notion of justice as a preexisting ‘‘template according to which deliberative outcomes could be measured for fit’’ (Maynard & Manzo, 1993, p. 174). Instead, they treat justice as a ‘‘phenomenon of order.’’ Taking the jury to be an ‘‘ordinary society,’’ they ‘‘analyze how its members strategically introduce and develop ‘justice’’’ in their conversation (ibid., p. 173). They find that Jurors do not define justice and then determine whether the facts of the case and a decision on those facts fit their definition. Rather, in the course of posing puzzles, articulating the law, casting individual ratiocinations into narrative form, and persuading one another of proper procedure and outcome, jurors produce ‘‘justice’’ as something to be ‘‘done’’ as they solve their puzzles, attempt to follow the law, work collaboratively to ponder the case, and ultimately reach a unanimous decision. (ibid., p. 175)

In the course of their analysis of how jurors ‘‘do’’ justice, Maynard and Manzo explore several narrative strategies that the jurors employ. The first is the ‘‘opening statement,’’ in which each juror presents his or her initial analysis, and following which an initial vote is taken. These statements could be viewed as the equivalent of Ochs et al.’s initial version of the detective story. If these multiple initial tellings diverge, then the jury must ‘‘persist in examining the narrative problem’’ (Ochs et al., 1996, p. 99) in search of a shared version. In this case the initial versions do diverge. A majority, open to the idea of nullification, frame the case as a puzzle or dilemma, a conflict between following their instructions to the letter and pursuing some greater moral imperative. A minority take what Maynard and Manzo (1993, p. 177) characterize as a ‘‘hardline’’ and conclude that their instructions leave them no alternative to conviction. As one puts it, ‘‘I think the scope of a jury is to decide guilt and innocence, not to be the presiding judge, and uh so I think uh I have to follow the letter of the law’’ (ibid., p. 182). This juror’s opening is typical of the majority (ibid., p. 181): Text 13 I feel that the um defendant’s mental abilities and reading level are not the crucial issue here. Uhm, I feel that he, he meets the criteria for us to find guilt. But I think we have a

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ROBIN H. CONLEY AND JOHN M. CONLEY very philosophical argument on our hands in terms of, are we obligated as a jury to follow the letter of the law and find him guilty? Or are we obligated as a jury to use our special level of conscience, uh as the defense lawyer said – otherwise it, you know, could be decided by a computer – um and acquit him because of perhaps an injustice that has been done to him through the-the arrest.

As the deliberations continue, the majority jurors employ various strategies in their efforts to persuade the hardliners to vote for acquittal. For example, the juror quoted in Text 1 states that ‘‘on a simple level it would be very easy to say that he is guilty, but we all feel I think that an injustice has been done’’ (ibid.). Characterizing how the other jurors ‘‘all feel’’ is a tactic described in the conversation analysis literature as ‘‘‘speaking on behalf of ’ others who form a proposed collectivity’’ (ibid.). The ‘‘discovery’’ of justice proves central to the process of persuasion, and its relevance or irrelevance to the verdict becomes the central issue. As the majority juror who introduces the concept puts it (ibid., p. 183), ‘‘If we [accept the evidence put in front of them], I don’t think there is any argumenty. But we’re here to do a justice to someone, and my point is the way I’m trying to decide in my own mind, has justice been done here.’’ A hardliner offers resistance in a statement that he might have taken out of Goffman: ‘‘you’re pulling back from just looking at the – at the instructions and you’re taking into a larger frame of is this justice’’ (ibid.). The majority jurors then attempt to lead the hardliners – especially one final ‘‘holdout’’ (Maynard and Manzo’s term; ibid., p. 177) – into acceptance of this ‘‘larger frame.’’ Members of the majority ‘‘testify’’ (in the religious sense of ‘‘telling how one reached a point of enlightenment,’’ ibid., p. 187) about the personal paths they took to favoring acquittal. Some of the majority’s talk exhibits understanding of and sympathy with the hardline position. The majority jurors say, in effect, that they, too, can see the strength of the evidence, but have been led away from it by some more compelling consideration. One juror who changed his vote from guilty to not guilty offers the holdout a way out that does not involve acceptance of the justice frame. He suggests that ‘‘taking into account his mental ability and everything’’ maybe the prosecution failed to prove one element of the offense: ‘‘that he had ta know that he possessed a gun.’’ In summation, he aligns himself with the holdout’s legalistic approach, but suggests that it can lead to a different result: ‘‘I’m not sure acquitting him is doing him a justice, uh I I I personally don’t think it is, but I can see your point and I can see a reason for somewhat of a doubt, however minor it may be’’ (ibid., p. 186). The holdout finally capitulates. He is apparently not persuaded, but does not want to ‘‘hold up eleven people that are very strong in their feelings.’’


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Rather than simply accepting the holdout’s acquiescence in acquittal, his fellow jurors now work to convince him of the validity of his vote. In Garfinkel’s (1967, p. 114) terms, they work to assign to the verdict a ‘‘legitimate history.’’ Testifying plays a prominent role. Another former holdout emphasizes that ‘‘I walked into this room feeling exactly like you do. Maybe even more so.’’ But then he had an epiphany, brought about by comparing the defendant to his six-year-old son, ‘‘which is in first grade, which is pretty near to what we’re talkin’ about here. Uh now he could easily be led to purchase something’’ (ibid., pp. 187–88). In Text 2, another juror tells a story of personal anguish that leads her to the ‘‘justice frame’’: Text 2 I found myself feeling real down last night. I was aware of the weight that’s on each of us as a juror, and I was aware of the facts y’know, all the evidence facts in the case, and I thought hey, this guy’s guilty. Is there some way out of him being adjudged guiltyy? Boy I mashed around with that for a while, and I said, if there’s any justice really, it’s in drawing attention to this man’s personal situation and limitations. (ibid., p. 188)

Maynard and Manzo see the jurors’ notion of justice as an emergent and contingent construct, not an exogenous principle that guides them. Their evidence strikes us as inclusive at best, however. How can one conclude that, for example, the juror just quoted is developing justice as a strategic resource rather than being guided by it as a principle? What does seem incontrovertible, though, is that the story form, and the everyday strategies that it implicates, are central to the deliberations. The examples quoted earlier illustrate the centrality of storytelling in several ways: The deliberations begin with ‘‘opening statements’’ from each juror, which are in effect initial stories about the evidence and its legal significance. As a result of the obvious divergence among these stories, the jurors must ‘‘persist in examining the narrative problem.’’ In doing so, majority jurors do not directly confront the hardliners and their initial narratives. Instead, the tellers align themselves with the holdouts’ original stories and then offer roadmaps to acquittal that do not require the hardliners to repudiate those stories. These roadmaps are presented as further (or second) stories, personal testimonies about the majority jurors’ respective roads to enlightenment. They are metanarratives that build upon, incorporate, and reformulate multiple prior stories, including those told in evidence, those initially told

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in the jury room, and those that are part of the jurors’ life experiences. The testimonies implicitly invite the holdouts to rethink their own experiences in similar terms – to see whether a similar story might work for them as well. The storytelling does not end with the final vote in favor of acquittal. The testimonies continue in an apparent effort to produce, albeit retroactively, a ‘‘legitimate history’’ of the verdict, a final, co-produced master narrative with which everyone’s original story can be reconciled. In a second, linguistic paper, Manzo (1993) focuses on jurors’ use of narratives of personal experience.4 In addition to re-analyzing some of the data from the earlier paper, he presents several excerpts from the deliberations in the unidentified civil case, which involved a payment dispute between a homeowner and a contractor. He argues that jurors present personal experience stories as evidence of a ‘‘rule’’ and then establish the relevance of that rule to the legal and factual circumstances of the case. He defines ‘‘rules’’ as ‘‘formulations of the way things work, or ought to work’’ (ibid., p. 274). In setting out their rules, jurors sometimes use variations on the if/then conditional form: if (or when) a certain predicate has occurred, then certain consequences usually or invariably ensue. The use of such conditionals will be an important theme in the case we analyze in Section 3. In Text 3, for example, Juror 2, in interaction with Juror 5, posits a rule ‘‘that when the ‘money’ (the price of the home) is ‘set’, any further costs are the responsibility of the buyer’’ (ibid.). Text 3 Juror 2: See that’s the trouble for the Gree:ns is that every time (clears throat) as soon as you’ve gotten your money set Juror 4: yeah Juror 2: anything else that comes up after that? Juror 5: is outta your [pocket] Juror 2: [is outta your pocket and your stuck [that’s just the way it goes to bill] Juror 5: [right. Right]

Then, in Text 4, Juror 2 presents the story from which the rule emerged (this time in collaboration with Jurors 4 and 5) (ibid., p. 275). Text 4 Juror 2: yknow my wife and I bought a house and we had a set money uh:: the price was all set Juror 4: uh huh


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Juror 2: uh: FHA inspector comes out and says well but I want this and this and this do:ne and the bank says, well fine but that isn’t what we yknow bid on you’re gonna get the same amount of money period so it was strictly yknow it was extra thousand dollars out of pocket for us and there was nothing we could do you simply had to do it. Juror 5: right

Finally, in Text 5, Jurors 2 and 4 co-produce a concluding statement that applies the rule to the case. They actually embellish the rule as originally posited, adding the requirement that any exception be guaranteed in writing (ibid., p. 276). Text 5 Juror 4: and that’s to be expected when you’re building a house Juror 2: yeah it was unfortunate news for the Greens ¼ Juror 4: yeah right y:es right exactly Juror 2: but it was certainly their responsibility yeah unless uh: what’s his name said he was gonna guarantee: ¼ Juror 4: ¼ right and had it dow:n. in writing.

Juror 2 subsequently presents another personal story, this time in response to other jurors’ concerns about the contractor’s delay in countersuing for his fee (ibid., p. 279). Whereas in Text 4 the story is presented to justify a rule that has already been posited, here the rule is derived inductively from the story. Juror 2 references ‘‘a number of situations where people would uh short [his company] in some fashion or another.’’ In these instances, the company decided whether to assert a claim by posing the question, ‘‘is it something that is going to have an adverse effect upon our reputation?’’ Juror 2 then focuses the story on one specific instance, ‘‘a case not too long ago where a – our customer had obviously screwed up.’’ Applying the reputational algorithm to the situation, the company ‘‘ended up sending him money or actually deducting it from his final payment because it was worth it to us for reputation and know his good will.’’ Other jurors then align themselves with the point of the story – one saying ‘‘oh yes yes I know that from my experience’’ – and Juror 2 concludes his telling by deriving a rule that is directly relevant to the case at hand: when there is a cost overrun caused by the homeowner, a contractor would not sue for the money until he had been sued himself. In these examples, jurors bring common sense and everyday experience to bear on their deliberations, as their instructions permit them to. But they do not do it in some general or abstract way. Instead, they employ that most concrete of everyday practices, the story. The jurors’ use of stories raises a serious question about their fealty to their instructions. They are adjured to

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apply the rules of law on which they have been instructed to the stories that comprise the evidence. Here, however, they produce stories from their own experience and use them to justify or derive their own rules for processing the evidence. In Manzo’s first example, the jurors’ rule – cost overruns are the homeowner’s responsibility, absent a writing to the contrary – looks very much like a rogue rule of law that they will apply to the evidence. In the second, the jurors agree on a rule of human behavior – contractors do not sue homeowners over cost overruns unless they have been sued first – that will help them interpret the ‘‘official’’ evidence. Although the second may be nothing more than an unusually elaborate instance of applying common sense, the first would likely have shocked the lawyers and judge in the case.

2.2. The Arizona Transcripts We turn next to an examination of the fragmentary transcripts that have been published by Diamond et al. (2003) as part of the Arizona Jury Project. Since they were not intended for linguistic analysis, they are a different kind of evidence than the excerpts published by Maynard and Manzo. Because they were selected to illustrate substantive legal points, not conversational practices, they are less likely to contain complete instances of stories and other units of linguistic analysis. But for the same reason, such linguistic evidence as they do contain cannot be questioned on grounds of selection bias, or cherry-picking. As it turns out, the Arizona evidence is entirely consistent with that developed by Maynard and Manzo, as well as with the general narrative literature. Diamond et al. present the texts that follow to illustrate the nature of the pre-deliberation discussions that jurors are now permitted to have, to demonstrate the potential benefits of such discussions, and to assess whether jurors are faithful to the requirements that they conduct such discussions only when all are present and that they not reach premature conclusions. Most of the texts are not accompanied by an explanation of the cases or contexts from which they are taken. 2.2.1. Story Structure Text 6 (Diamond et al., 2003, p. 38) is a vivid illustration of Labov’s model of story structure, in the specific context of a co-produced metanarrative. The evolving metanarrative concerns the credibility of the plaintiff’s medical narrative, in light of the independent medical testimony that the jurors have apparently just heard.


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Text 6 Juror 2: When did the independent medical exam occur? Juror 7: July 1998 Juror 2: Right

[All jurors talking at once]. Juror 3: And [plaintiff ] had all of those prior injuries he didn’t disclose. Juror 2: I thought that was weird. It wasn’t like they had to go to different doctors. It was all in one file. Juror 5: It’s not unusual for doctors to disagree. Juror 7: His [treating doctor’s] ability to treat patients seems to just prescribe more drugs. Juror 2: It is just my opinion but [the plaintiff ’s] doctor wasn’t very good, and at least this witness today knewy Juror 6: I would like to see [the exhibit about the plaintiff’s medication] again. I just want to see what happened after the accident.

In Text 6, the jurors are co-producing a story about the plaintiff ’s story. More specifically, because this is a pre-deliberation discussion, it is a preliminary story about a part of the plaintiff’s story. The Labovian complicating factor, presented by Juror 3, is ‘‘all of those prior injuries he [the plaintiff] didn’t disclose.’’ There follows a series of evaluations of the plaintiff ’s story. Juror 2 finds the non-disclosure ‘‘weird.’’ Juror 5 is more sympathetic; this juror also makes a claim about how the world generally works (‘‘It’s not unusual’’) to lend authority to his or her position. (We use ‘‘authority’’ in its everyday sense of grounds, warrant, or convincing force; an ‘‘authoritative’’ statement lays claim to such influence.) Jurors 7 and 2 (again) then pile on the plaintiff’s doctor. Note that, in contrast to Juror 5’s generalizing and thus authoritative assertion, Juror 2 introduces his or her criticism of the doctor with an epistemological disclaimer (‘‘It is just my opinion but’’). Juror 6’s request to reevaluate certain evidence implies that this narrative did not reach an immediate result or resolution, but was the subject of further development. (As Diamond et al. indicate, this is exactly the outcome that Arizona intended.) 2.2.2. Authority and Rules We defined ‘‘authority’’ above. We use ‘‘rules’’ in much the same broad, functional way that Manzo (1993, p. 272) did, as ‘‘formulations of the way things work, or ought to work.’’ This is consistent with Garfinkel’s (1967, p. 112) notion of socially defined ‘‘conditions of correct choice.’’ Understood in this way, a rule can derive from various sources, including

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the law, an expert pronouncement, or an observed pattern of social behavior. Depending on its source, a rule may be backed by coercive power, or may depend for whatever influence it has on a shared understanding among the participants in the relevant interaction. As we shall see, authority and rules are sometimes two sides of the same coin: rules require authority to affect ‘‘the way things work,’’ whereas a claim to authority can sometimes be based on an appeal to rules. In contrast to Text 6’s modest assertion of authority, Text 7 (ibid., p. 26) illustrates a specialized claim to authority in the form of a strong assertion of expertise. This text is taken from a case assigned to the ‘‘control’’ condition in the experiment. In the control cases, jurors were instructed not to engage in pre-deliberation discussions, but did so in 42 percent of those cases; Diamond et al. presented Text 7 as an example of such discussions. Text 7 Juror 9: The reason the [defendant] is there is because he’s going to have to pay whatever damages there are. Juror 8: At least [the defendant] didn’t take off from the scene. He tried to get out of the car. Juror 9: He admitted right away it was his faultyThe purpose of the case is to see if her injuries are the result of the accident and therefore he is liable for damages, or if they are a result of all her previous life. Juror 5: We decided we weren’t going to talk about it. Juror 9: That’s right we’re not going to talk about it.

Juror 9 begins with an unequivocal statement about the defendant’s position, phrased in what might be termed lay language. Juror 8 responds with a statement that shows some alignment with the defendant. Juror 9 then repeats the substance of his or her initial statement, but this time in language that is more legal-sounding and thus stakes, or at least implies, a claim to legal expertise. ‘‘The reason the [defendant] is here’’ has become ‘‘The purpose of the case,’’ whereas the phrase ‘‘therefore he is liable for damages’’ lends a legalistic aura to the statement. Juror 9’s authoritative stance is underscored by the frankly ironic response to Juror 5’s reminder of the rules of deliberation. In Text 8 (ibid. p. 39), a juror asserts authority – if only temporarily – by proposing a general rule of human behavior that can be applied to the evidence. Text 8 Juror 1: He [plaintiff] sped up when he saw the yellow light and then it was red. I didn’t get that straight – was it a yellow or a red light [the plaintiff] saw [the defendant] going through?


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Juror 7: It was red and he had to go because he was stuck in the middle. Juror 1: But another time he [plaintiff] said he saw the other person see the light changing so he [defendant] sped up, or maybe that is what the [other witness] told him. There was no left turn arrow. Juror 7: ‘Cause if you see someone speeding up, what do you do? I sit there. Juror 1: Yeah, you are not supposed to be in the intersection. Juror 6: That’s why we have to wait for the judge to talkywhat are the laws in this state? Juror 1: Well, there was no turn signal, right? No arrow? What was he doing in the intersection? Juror 7: We need witnesses to tell us if he ran the light.

At the outset of Text 8, Jurors 1 and 7 identify a factual issue that needs resolution – the condition of the traffic light when the defendant went through it. Juror 7 proposes to frame the issue in terms of a general (or perhaps universal) rule drawn from experience. To establish the rule, Juror 7 uses the rhetorical device of a general question (‘‘if you seeywhat do you do?’’) followed by a personal answer (‘‘I sit there’’) in which the coparticipants are invited to acquiesce. Juror 1 does so explicitly (‘‘Yeah’’) and then offers collateral support for Juror 7’s proposed rule with a generalizing ‘‘you are not supposed to.’’ But Juror 6 resists Juror 7’s authority, insisting that they need to wait for the judge’s legal instructions. Juror 1 again aligns with Juror 7 through a series of rhetorical questions, but then Juror 7 backs down, acknowledging a need for more evidence. Text 9 (ibid., p. 42) provides another example of the promulgation and application of rules. Text 9 Juror 5: I don’t know if anyone else thinks the same, but they said the bruises and abrasions were below the knee. Right? And it’s usually instinctive if in the fall you catch yourself like this [juror puts hands in front to illustrate]. Am I right? Then how could it could have happened the way [plaintiff] claimed?

Juror 5 begins with a modest disclaimer of knowledge (‘‘I don’t knowy’’) and then sets up the problem by reporting what ‘‘they’’ said about the location of the bruises – a foreshadowing of a hoist-by-their-own-petard argument. Juror 5 then makes a pointed shift to the authoritative statement of a rule of behavior that is not only universal but also ‘‘usually instinctive.’’ The rule itself is phrased as an if/then conditional that seems to admit of no exceptions: if you fall, then you catch yourself like this. Juror 5 brings the rule bear on the case with a dramatic flourish, a pair of rhetorical questions that need no answer.

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2.2.3. Evolving Master Narrative To return to Text 8, one other issue deserves comment: what it reveals about the structure of the evolving master narrative that will underlie the verdict. Note that the jurors are able to identify specific missing pieces (legal instructions, witnesses) of the master narrative, which implies that they have in mind a template or model of the case from which those pieces are missing. We are not told how far along in the case this discussion occurs, but it is clear that at least an early version of this template has emerged before the completion of the evidence, well in advance of the final arguments and judges’ instructions. An underlying question is where the template has come from. Text 10 (ibid., pp. 39–40), a discussion of the plaintiff’s pre-accident medical condition, illustrates similar phenomena. Text 10 Juror 4: The witness started to say something about her insurance and then dropped it. So there a lot of things we may never find out about. Juror 5: That was a lot of force [that struck plaintiff]. Juror 8: Oh yeah, that’s what I was thinking. Juror 4: And you know how hard her work is. I have no doubt this woman has pain. Juror 8: That whole issue of degenerative disc disease. She probably has it but it should not factor inyand if she was in the type of pain she was in yesterdayy[referring to a ‘‘day in the life of the plaintiff’’ videotape.] Juror 2: Yes if that was really her level, geezy Juror 8: I have a friend who is going in for back surgery and his pain varies from day to day. I mean it will be interesting to watch the whole videotape. Are we going to watch the whole thing? Juror 3: A lot of people go to work with fused backs. Juror 1: Doesn’t this degenerative back disease really hurt her chances? I mean they have not really proved to me that this was just one instance that caused her back problem. Juror 8: Well, I think that at the end the judge will instruct us on what to consider and what not to, we haven’t seen the whole thing yet. Juror 1: I thought the doctor’s testimony was most useful. I mean, [another witness] could never have seen what actually happened.

Juror 4’s initial comment in Text 10 refers to missing pieces of evidence that may never be provided – information about insurance and ‘‘a lot of things.’’ As in Text 8, the remarking on missing pieces implies something from which the pieces are missing. The jurors are apparently developing a conception of an overarching story –’’the whole story,’’ as it were – and are able to distinguish the elements that will be provided to them (‘‘the whole videotape’’; ‘‘the whole thing’’) from those that may not (‘‘a lot of things’’). As part of this process of development, and again as in Text 8, these jurors also propose and justify rules that they deem relevant to the interpretation of


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the evidence. Juror 8, for example, cites the experience of a friend with back problems whose ‘‘pain varies from day to day’’; the implication from the context is that this is a general rule that will be relevant to their interpretation of the videotape. Juror 3 follows with an unequivocal and uncontested empirical rule: ‘‘A lot of people go to work with fused backs.’’ 2.2.4. Summary Many of these issues come together in a complex way in Text 11 (ibid., p. 43). Although Diamond et al. provide no context, it appears that the jurors are discussing a party who has no written records of a medical problem. Text 11 Juror 1: [M]aybe she is telling the truth and just didn’t write it downyif she had written everything down, they wouldn’t have a case. Juror 6: But you have to think in her eyes and mind, and what she thinks at the time. Juror 1: I agree, but she didn’t document it. Juror 3: A lot of time in medical stuff you think things but you don’t write it down. Juror 8: But you know, if it’s not written down, it was never done, it was never thought, everything has to be documented, that’s the biggest part. Juror 7: You think something and you don’t necessarily write it down. You don’t write down what you think, you write down what you see. Juror 8: I’m just saying that documentation counts, as [opposing expert witness] said. She speculates a lot but doesn’t have anything documented.

As Labov’s model would predict, the embedded, co-produced narrative in Text 11 begins with an abstract, or statement of the problem, by Juror 1: the absence of an expected writing. The abstract concludes with an if/then conditional (‘‘if she had written everything down, [then] they [presumably the opposing party] wouldn’t have a case’’) that emphasizes the importance of the omission. As in previous texts, the reference to a missing piece of the story suggests that the jurors are evaluating the evidence against a shared template, a model of what a ‘‘proper’’ case would look like. As part of the specification of this model, the jurors debate a quasi-legal rule that is implicit in Juror 1’s opening and then made explicit by Juror 8, once again in the if/then form: ‘‘if it’s not written down, [then] it was never done, it was never thought, nothing, everything has to be documented.’’ Other jurors contest the rule, both before and after Juror 8’s statement. Juror 6 admonishes the others to ‘‘think in her eyes and mind,’’ Juror 3 proposes an exception to the rule for ‘‘medical stuff,’’ and Juror 7 seeks to limit its application to ‘‘what you see’’ as opposed to ‘‘what you think.’’ In summation, Juror 8 acknowledges these arguments with a self-deprecating

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‘‘I’m just saying,’’ but quickly shifts gears to claim the support of an expert witness. Juror 8’s final remark is almost dismissive, relegating that which is undocumented to the realm of speculation. The text ends here, but if Juror 8 has prevailed, then this jury’s interpretation of the evidence will be guided by a strict rule that is legal-sounding but of unknown provenance. A final example, Text 12 (ibid., p. 46), illustrates the relevance of Ochs et al.’s detective story model to jury deliberations. Text 12 Juror 8: I’m saying the letter wasn’t signed until the 12th. How could they notify him or fax him until after they knew it? Juror 2: What would they have said to him on the phone? I would thinky Juror 6: [interrupting] They said working days, so I’m wondering if it was a Tuesday or a Wednesday. Juror 3: Well I remember when [Witness X] was testifying, they asked if she remembered what day it was, and she said it was a Thursday, so that means there must have been a weekend in there, too. Juror 3 [sic]: Well, that must be why the letter didn’t get signed. That seems so confusing. Juror 6: [referring to her notes] It was during the week, so there were five daysy Juror 8: Well the other calls were on a Friday, so that is more than five days they had to read it. Juror 1: But they didn’t use the mail; they faxed it. Several jurors: The letter was faxed but the contract was returned on Monday. Juror 5: They faxed the letter but the contract was returned on Monday. That was a reasonable amount of time. Juror 9: The critical time is how long after the letter was received. That’s the critical information.

Diamond et al. provide no context for Text 12 (they were, of course, presenting the text for a purpose unrelated to ours), and it is difficult to infer the background from the text itself. Nonetheless, it appears that ‘‘they’’ learned something and notified ‘‘him’’ by faxed letter; there seems to have been a delay in the signing of the letter. Sometime after the letter was faxed, a contract was returned, although it is not clear by whom. Juror 8 presents a story in summary form. Emphasizing his or her personal responsibility for this account (‘‘I’m saying’’), Juror 8 posits that the letter was not signed until the 12th, a conclusion that, it appears, would resolve a lot of the confusion. Juror 8’s rhetorical question (‘‘How could theyy?’’) offers a reason for this particular timing. In Ochs et al.’s (1996, p. 99) formulation, this version of the story could be treated as complete by those who are co-present. However, ‘‘somebody persists in examining the narrative problem beyond this point, eliciting or introducing the relevant information not provided in the initial version of the story’’ (ibid.). Juror 6


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interrupts to introduce the issue of working versus weekend days, and Juror 3 immediately follows with remembered testimony that bears on the issue. Another juror connects the dots and offers a tentative resolution of the dilemma (‘‘that must be why’’), but then undercuts that conclusion (‘‘That seems so confusing’’), which invites others to continue the probing. Juror 6 introduces written notes as a new source of authority, and all ‘‘persist in examining the narrative problem.’’ Finally, Juror 5 offers a resolution, passing judgment on the lapse of time between the faxing of the letter and the return of the contract – it was ‘‘reasonable.’’ The butler did it, as it were. Juror 9, who has not yet spoken, impliedly endorses at least the outline of this approach by twice characterizing the lapse of time as ‘‘critical.’’ To summarize, even these fragmentary texts offer significant clues to the everyday discourse strategies that jurors use to process the evidence: Jurors frame even brief discussions of particular issues as co-produced narratives that reflect the structure originally described by Labov. Although the evidence of these texts is limited, it does suggest that Arizona’s pre-deliberation discussions may consist of a series of storytelling sessions. The jurors also make reference, at least indirectly, to an evolving master narrative, the ‘‘whole’’ or ‘‘real’’ story. Its existence is suggested by the jurors’ repeated references to missing pieces – if they are missing, they must be missing from something. This master narrative, while emergent from the deliberations, also appears to contain elements from personal experience and other extrinsic sources. Jurors regularly assert or disclaim authority for their assertions. The former may involve empirical claims such as ‘‘it is not unusual’’ or the use of legal-sounding language. Disclaiming authority may be accomplished through epistemological distancing from a statement, such as when a juror says ‘‘it is just my opinion buty.’’ As Maynard and Manzo found, jurors propose, justify, and argue for the relevance of all kinds of rules. Some are rules of human behavior whereas others are quasi-legal. They appear to play a vital role in the assessment of evidence.

3. A COMPLETE ARIZONA CASE In this section, we analyze excerpts from a complete linguistic transcript of one civil case that was videotaped for the Arizona Project. It involves an

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automobile accident. The jurors spend a large part of the deliberations debating whether post-accident ailments (and thus, medical bills) are due to the accident or to the plaintiff’s previous medical conditions. A video camera was activated any time the jurors were in the jury room, so both pre-deliberation discussions and formal deliberations were recorded and transcribed in their entirety. The transcript follows modified conversation analysis conventions (Jefferson, 1984); we have deleted or altered potentially identifying references. The excerpts that follow illustrate how jurors use narrative to pose puzzles about the evidence, how they make judgments, and how they begin to frame an overarching story that will serve as the basis for their verdict. Our analysis reveals many of the same themes that emerge from the published transcripts analyzed in previous sections, as well as some new issues. In particular, we will emphasize the capacity of narrative to form temporal and causal relations between events. Narrative can be used to configure past, present, future, and hypothetical experience (Ochs & Capps, 2001), a quality that is prevalent in everyday interaction and that appears to be especially useful in jury deliberations. With respect to causation, we will see, following Mattingly’s (1998) paraphrase of Aristotle, how narrative ‘‘imitates action and experience through clarification and condensation, revealing causal connections between motive, deed, and consequence which also allows a moral reading of events.’’ The use of narrative to frame hypothetical experience is especially salient here. In reaching a judgment, jurors compare that which happened, as narrated in the trial, with what could have happened, as explored in their own narratives. Their judgment is thus influenced by interactionally constituted notions of the possible. Jerome Bruner (2002) argues that culture is a constant navigation of the possible and the ordinary, and narrative is a primary cultural medium through which we establish, contest, renegotiate, and reify what is possible and what is ordinary. Jurors are not legal specialists, so they presumably rely on lay notions of the possible and ordinary, using narrative to develop those notions. In the case we analyze, the jurors do not immediately seek a complete account of events. Instead, they begin by collaboratively deconstructing the narratives that were presented in the courtroom. They then ‘‘pass around’’ and discuss different versions of pieces of the courtroom narratives. Over the course of discussing and deliberating, they reconstruct a metanarrative composed of a selection of the deconstructed parts. Elements of this emerging composite narrative are scattered throughout the discussions and deliberations, distributed across turns and speakers and often disjunctive.


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Accordingly, passages of discourse that contribute to the composite need not be narratives in their own right. 3.1. Deconstructing and Reconstructing the Evidence The jurors begin their analysis by presenting and evaluating deconstructed pieces of the courtroom narrative. In Sections 2.1 and 2.2, we saw instances of jurors using if/then conditionals to derive behavioral rules that they used to assess evidence. In this complete transcript we see that same practice in greater depth. Here, the use of if/then propositions involves 1) mooting different hypothetical propositions concerning the evidence and 2) accepting or rejecting those propositions according to commonsense standards of plausibility, adherence to evidentiary standards, and personal experience. The ongoing objective is to further the construction of the overall story. This process is illustrated in Text 13. Text 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Juror 4

18 19 20 21 22

Juror 4

Juror 6 Juror 4

Juror 2 Juror 4

Juror 8

Juror 4

Juror 7

Um, I, we have a lot of patients that have, that take codeine, and, T T3s and T4s Do you think that could be why he fell, when he lost his balance at the machine? ¼ ¼ You know, I’m wondering why he fell, cause the only thing I can think of is, if you fall backwards you get light-headed and, ( ) he coulda gotten up too quickly. And, that could be a possibility, I would think that that would be if he took too ma:ny, and was drowsy in the first place, leaning over to deal with this thing, and just got a rush when he got up and got dizzy ¼ ¼ I’ve gotten a rush getting up, I mean, uh, without any medication, you know? (laughs) You know, you stand up fast ¼ ¼ That’s true, yeahy [text deleted] yI guess we’ll have to wait to see what that doctor says about that [preexisting medical condition]. Why it’s ( ) ¼ ¼ I’d be really curious to see if he sued anyone else, and what happened as a result

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The jurors first pose a question about an evidentiary issue: ‘‘Do you think that could be why he [the plaintiff] fell?’’, ‘‘I’m wondering why he fell’’ (lines 3–5). The questions are followed by a pair of conditional propositions that suggest resolutions to the quandary. Juror 4 states the rule that ‘‘if you fall backwards you get light-headed’’ (l. 6; the ‘‘if ’’ is explicit, the ‘‘then’’ implicit). Juror 2 then applies this rule to the evidence to propose an answer: this might have happened to plaintiff, ‘‘and he coulda gotten up too quickly,’’ which presumably caused the fall in question. (The plaintiff had apparently fallen immediately before the fall they are discussing.) Juror 4 acknowledges that ‘‘that could be a possibility’’ (l. 8) and then immediately proposes another conditional that assumes the prior rule, adds an additional hypothetical fact (‘‘if he took too many [painkillers] and was drowsy in the first place,’’ ll. 9–10), and concludes with a plausible resolution of the evidentiary dilemma (‘‘just got a rush when he got up and got dizzy,’’ l. 13). Despite expressing some support for this resolution, the jurors decide that they must wait for more evidence. This text also illustrates the collaborative nature of the narrative-building process. Juror 6 (l. 3) poses the basic question, ‘‘Do you think that could be why he fell?’’ Juror 4 repeats Juror 6’s question (l. 5), then begins the process of answering it, first by proposing a general rule in if/then form. Juror 2 appropriates Juror 4’s turn to apply the rule to the evidentiary narrative (l. 8). Juror 4 then propounds a more elaborate conditional (ll. 8–11), and others make evaluative comments before deciding to defer judgment. Turn by turn, jurors build on each others’ utterances to deconstruct the evidentiary narrative and begin the process of co-producing the ultimate metanarrative.

3.2. Navigating Temporality A more detailed examination of Text 13 reveals the process of navigating among past, present, future, and hypothetical experiences in evaluating and reformulating evidentiary narratives. In lines 3 and 5, Jurors 6 and 4 respectively state and restate the question about a past event and, straightforwardly, use the past tense to refer to that event (‘‘why he fell ’’). Juror 4 then uses a present conditional construction (l. 6) to introduce the general rule that may lead to a judgment about this past event (‘‘if you fall backwards you get light-headed’’). The present tense marks this statement as being in the category of law-like timeless truths. The second-person pronoun, the impersonal ‘‘you,’’ serves a similar function in that it is


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understood generically (as ‘‘one’’) rather than as referring to a particular co-present juror, further generalizing the rule being discussed. Implicit in all this is an invitation to judge the historical particulars of the case against such rules. The implied invitation is taken up immediately by Juror 2, who interrupts Juror 4 to offer just such a judgment. It is a tentative judgment, however, as Juror 2 uses the past conditional (‘‘he coulda gotten up too quickly’’) to connect Juror 4’s general rule to the past event of the plaintiff’s fall. Taking back the turn, Juror 4 introduces a more elaborate hypothetical that might explain the whole situation (ll. 8–11). The logic is that of the if/ then conditional, along the lines of ‘‘if he took too many [painkillers], and was drowsy in the first place, and was leaning over, then he could have/ might have just gotten a rush.y’’ That is not the way Juror 4 structures it, however. Instead, everything is under the umbrella of the initial if – including the ostensible conclusion. In contrast to Juror 2’s conditional coulda in line 7, Juror 4 renders the conclusion here in the simple past (‘‘just got y’’), connecting it more strongly to the actual past event that is in question. Through this simple syntactic expedient, Juror 4 has blurred the boundary between hypothetical and history and invited judgment on the meaning of that history. Finally, note also that Juror 4 introduces both conditionals with mental verbs (‘‘I can think,’’ ll. 5–6; ‘‘I would think,’’ l. 8), which index judgment and thus further mark these as passages in which judgment is being invited. 3.3. An Alternative Evidentiary Universe Text 14 further illustrates this structure, with some additional wrinkles. The jurors are discussing whether the plaintiff’s injuries were caused by the accident or a preexisting condition, as well as the credibility of his claimed symptoms. Text 14 1 2 3 4 5 6 7

Juror 5 Juror 7 Juror 5

I’m also wondering how heavy those files were (using when we do) that same day. Right. (2) (Seeing us) moving filing cabinets, I know how heavy they can get. If he used his pick-up truck he could load it up pretty good.

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8 9 10 11 12 13 14


Juror 9

Juror 1

Juror 9

And no (inclination) to, um, having had a son with so many back problems, it isn’t what you do. You don’t feel it immediately if he, if he claims it swells. No you don’t. And was, was he on medication at the time of the accident? And if that’s the case he wouldn’t have felt it anyway ¼ ¼ He wouldn’t have felt it.

Juror 5 (ll. 1–2: ‘‘I’m wondering how heavy these files were’’) and Juror 1 (ll. 11–12: ‘‘was he on medication at the time of the accident?’’) raise factual questions about the evidence, both presented in the past tense. Various jurors then offer related statements about general truths, all in the present tense (ll. 5–6: ‘‘I know how heavy they can get’’; ll. 9–10: ‘‘it isn’t what you do. You don’t feel it immediately’’; l. 11: ‘‘no you don’t’’). These statements are further generalized by use of the impersonal ‘‘you’’ pronoun. (Juror 9’s statement that ‘‘it isn’t what you do’’ is especially interesting in this regard, as it follows an announcement of relevant personal experience: ‘‘having had a son with so many back problems.’’) Against these truth-statements, Jurors 5 and 1 juxtapose if/then constructions that are based on the evidence rather than on general knowledge or experience (ll. 6–7: ‘‘If he used his pick-up truck he could load it up pretty good’’; ll. 12–13: ‘‘if that’s the case [if he was on medication] he wouldn’t have felt it anyway’’). These constructions therefore function as especially powerful hypothetical mini-narratives: they extend the discussion beyond what did happen by telling a story about what could have happened. In the two quoted instances, the jurors know that the plaintiff had a pick-up truck, but not whether and how he used it; they also know that he was on medication, but not when. In the former instance, Juror 5 extends the facts to posit a situation in which the plaintiff did use his pick-up truck, and thus might well have loaded it up ‘‘pretty good’’ and perhaps injured his back. In the latter, the condition posited by Juror 1 is that the plaintiff was on medication at the relevant time, in which case he would not have felt the back pain. In the short term, these hypothetical past worlds are offered as a basis for evaluating the particular pieces of evidence that are being considered. In the long term, they may play a vital cumulative role in developing the metanarrative that will frame the verdict. These hypothetical retellings of evidentiary stories, and the audience reactions to them, embody criteria for possibility that are based on notions of ‘‘real-world practical plausibility’’ (Lakoff, 1990, p. 126). These criteria are subtly negotiated and renegotiated as the jurors evaluate evidentiary


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narratives against the background of their own narratives of what could have happened. A retelling that meets the evolving plausibility standard will have a chance to influence the developing metanarrative, whereas one that does not is likely to be dropped.

3.4. Broader Implications The process just described suggests several larger points about the way that the jury receives and processes evidence. First, in deciding ‘‘what happened,’’ these jurors do not limit themselves to the narratives they hear from the witness stand. Instead, they develop and consider a body of unofficial evidence consisting of their own narratives about what could have happened – an alternative evidentiary universe, as it were. Second, discussions such as that found in Text 14 shed new light on the process of truth-testing by jurors. The individual jurors in this case do not simply run evidence through some idiosyncratic credibility black box. Nor do they rely directly on preexisting external criteria for what is possible, plausible, and thus credible. Rather, at least in part through the mooting of multiple hypotheticals, they negotiate their own standards of plausibility. The negotiations are ongoing, yielding standards that are specifically tailored to individual pieces of evidence. As Maynard and Manzo (1993) found with respect to justice, credibility is emergent, not exogenous. In conversation analysis terms, these jurors ‘‘do’’ credibility. Importantly, they do it collaboratively. Finally, our linguistic observations shed some additional light on the significance of the Arizona trial reforms that Diamond et al. studied. These hypothetical narratives appear most often in this jury’s newly-allowed discussion sessions, before the formal deliberations begin. The structure of narrative tolerates things like the conflation of tenses and moods, and the mingling of real and hypothetical experiences. Because of this inherent flexibility, narrative offers a vehicle for discussing and evaluating the evidence throughout the trial while ‘‘reserv[ing] judgment about the outcome’’ until the formal deliberations begin, as the Arizona rule requires. Thus, these jurors have hit upon a linguistic strategy that seems ideally suited to the task at hand and – not surprisingly – it involves narrative. Nonetheless, these observations also raise questions about whether it is possible to engage in ongoing discussions while truly ‘‘reserv[ing] judgment about the outcome.’’ The purpose and effect of the hypotheticals seem frankly judgmental. Perhaps they are not judgments about the ultimate outcome, but they do seem calculated to begin shaping that outcome at an early stage of the

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case.5 Moreover, as just noted, because they are hypothetical, they necessarily invoke considerations beyond the scope of the evidence. One wonders whether jurors generally are likely to lose track of the boundaries.

4. CONCLUSIONS We began this chapter with Garfinkel’s (1967, p. 112) observation that in the jury room, ‘‘The rules of everyday life, as well the rules of the official line, are simultaneously entertained.’’ Even this brief report of data from actual jury deliberations confirms that this is especially true with respect to the linguistic rules of everyday life. We have focused on one subset of those linguistic rules, those pertaining to narrative, or stories. Bennett and Feldman showed how lawyers use the story form in presenting cases to jurors, presumably because narrative is the elemental form in which we package and process complex information about human behavior. It is not at all surprising to find that jurors rely on those same everyday narrative practices in talking to each other about the human behavior at issue in the cases they hear. Some of the details of these practices are far less self-evident. Maynard and Manzo’s demonstration of ‘‘doing’’ justice, for example, suggests an independence and resourcefulness that trial lawyers might not have expected. Likewise, the use of ‘‘opening statements’’ by jurors demonstrates that they come to their deliberations having already made considerable progress in transforming the evidence into a metanarrative. And the practice of ‘‘testifying’’ to persuade fellow jurors indicates that narrative practices can be readily transferred across presumably stark contextual boundaries – in that case, from the church to the jury room. As we consider our linguistic re-analysis of the published Arizona transcripts, we are struck by the consistency between what we observed and what the general narrative literature would have predicted, in particular the prevalence of the Labovian model of story structure. We also note the similarities between our observations and those of Maynard and Manzo with respect to the prominence of common-sense interpretive rules. Limited as it may be, this evidence suggests that such unofficial rules may rival the official legal ones in their influence on the outcome. Additionally, the jurors’ references to missing pieces of an evolving metanarrative show, in the same way as Maynard and Manzo’s ‘‘opening statements,’’ that the template or outline of a metanarrative may emerge well before the formal deliberations begin. Finally, even the brief excerpts from our own Arizona transcript hint at the potential significance of studying the structural details of jury language.


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In the apparent arcana of verb tense and mood, for example, we discover a world of hypothetical evidence that seems central to the jury’s evaluation of what the law thinks of as the ‘‘real’’ evidence. At a more abstract level, this discovery prompts a rethinking of the possibility of a meaningful distinction between discussion and judgment. Most previous research about juries has relied on experimental studies of how mock jurors process information and reach decisions, or statistical analysis of actual results, or interviews of real and/or mock jurors. The qualitative linguistic approach we take here is fundamentally different. Because of the necessary detail of the analysis and presentation, only a few instances can be considered at a time, and there is no quantitative evidence of patterns or cause and effect. To those of us who do this kind of work, these distinguishing features are its essential strength. The traditional forms of jury research presume that the investigator can pose an appropriate question. We indulge no such presumptions. Rather than trying to answer preexisting questions, we have looked to real jurors to frame new ones, to teach us what has practical significance for them. Rather than trying to quantify the distribution of known phenomena, we seek to expand our knowledge of the range of possibilities in the social behavior of real people. Even at this very early point in the linguistic study of jury deliberations, we have no doubt that the examination of how jurors ‘‘do’’ deliberation will lead us in new and unexpected directions that are likely to have significant practical and policy implications.

NOTES 1. In another of their publications, Diamond, Rose, Murphy, and Smith (2006, p. 1935 n. 31) explain the de-identifying process by citing the court order under which they worked: Supreme Court of Arizona Administrative Order 98–10 reads in part: [T]he materials and information collected for the study, including audio and videotapes may be used only for the purposes of scientific and educational research. The Court shall take all measures necessary to ensure confidentiality of all materials. All tapes shall be stored using appropriate security measures. The materials and information collected for the study, including audio and videotapes, shall not be subject to discovery or inspection by the parties or their attorneys, to use as evidence in any case, or for use on appeal.

2. An anonymous reviewer noted that much is lost when one works from a written transcript rather than, say, a videotape – tone of voice, inflection, gaze, etc. This is certainly true, although it should be pointed out that conversation analysts have tried

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to capture much of this information in their transcribing conventions. The study of the non-verbal aspects of interaction is itself an elaborate field; see, for example, Haviland’s (2004) and Charles Goodwin’s (2000) work on gesture. Although we recognize the potential significance of such communication features in the jury room, analyzing them is well beyond the scope of this relatively short paper. 3. We have reproduced texts from published sources as they appear in those sources. Maynard and Manzo (1993) and Diamond et al. (2003) present ‘‘cleaned-up’’ texts that contain, for the most part, only actual words and that follow the spelling and punctuation conventions of standard written English. The texts from Manzo (1993, 1994) follow many of the conventions of conversation analysis, in which an effort is made to capture all the utterances of the speakers, both verbal and nonverbal, and to record some of the pauses in the conversation. The particular conversation analysis symbols that appear in Manzo’s and our transcripts are ‘‘ ¼ ’’ to indicate interruption, aligned brackets to indicate overlapping speech, one or more colons to indicate that the sound of the preceding letter has been extended longer than is usual, parentheses to indicate that the text contained within could not be fully heard by the transcriber, italics to indicate a stressed word, and numbers within parentheses to indicate a pause measured in seconds [(2) indicates a 2-second pause]. 4. Similar linguistic evidence is also adduced in Manzo (1994), which appeared in the interdisciplinary journal Law & Social Inquiry. 5. On the basis of their quantitative analyses, Diamond et al. (2003, p. 67) conclude: ‘‘Although our ability to trace the impact of early verdict statements [expressions about ultimate issues that will be included on the verdict form to be completed by the jury] on juror behavior during deliberations and on the jury verdicts is limited, there is little evidence of a systematic distortion in trial outcomes due to the views that jurors expressed during the discussions.’’

ACKNOWLEDGMENTS We thank Shari Diamond for reviewing the Arizona excerpts that co-author Robin Conley transcribed in order to ensure that our presentation of the data was consistent with the confidentiality promises made to the court, litigants, attorneys, and jurors.

REFERENCES Arizona Supreme Court, Committee on More Effective Use of Juries. (1994). Jurors: The Power of 12. Bennett, W. L., & Feldman, M. S. (1981). Reconstructing reality in the courtroom: Justice and judgment in American culture. New Brunswick, NJ: Rutgers University Press. Briggs, C. L. (1996). Introduction. In: L. B. Charles (Ed.), Disorderly discourse: Narrative, conflict, and inequality (pp. 3–40). Oxford, UK: Oxford University Press.


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Bruner, J. (2002). Making stories: Law, literature, life. New York: Farrar, Straus and Giroux. Chafe, W. (2001). The analysis of discourse flow. In: S. Deborah, T. Deborah & E. H. Heidi (Eds), The handbook of discourse analysis (pp. 673–687). Malden, MA: Blackwell Publishing. Diamond, S. S. (2006). Beyond fantasy and nightmare: A portrait of the jury. Buffalo Law Review, 54, 717–763. Diamond, S. S., Vidmar, N., Rose, M., Ellis, L., & Murphy, B. (2003). Juror discussions during civil trials: Studying an Arizona innovation. Arizona Law Review, 45, 1–81. Diamond, S. S., Rose, M., Murphy, B., & Smith, S. (2006). Juror questions during trial: A window into juror thinking. Vanderbilt Law Review, 59, 1927–1972. Duranti, A. (1986). The audience as co-author: An introduction. Text, 6(3), 239–247. Ewick, P., & Silbey, S. S. (1998). The common place of law: Stories from everyday life. Chicago: University of Chicago Press. Garfinkel, H. (1967). Studies in ethnomethodology. Englewood Cliffs, NJ: Prentice-Hall. Goodwin, C. (1986). Audience diversity, participation and interpretation. Text, 6(3), 283–316. Goodwin, C. (2000). Gesture, aphasia, and interaction. In: D. McNeil (Ed.), Language and gesture (pp. 84–98). Cambridge: Cambridge University Press. Goodwin, M. H. (1990). He-said-she-said. Bloomington, IN: Indiana University Press. Haviland, J. B. (2004). Gesture. In: A. Duranti (Ed.), A companion to linguistic anthropology (pp. 197–221). Malden, MA: Blackwell Publishing. Heller, M. (2001). Discourse and interaction. In: D. Schiffrin, D. Tannen & H. E. Hamilton (Eds), The handbook of discourse analysis (pp. 250–264). Malden, MA: Blackwell Publishing. Jefferson, G. (1984). Transcript notation. In: H. John & J. M. Atkinson (Eds), Structures of social action: Studies in conversation analysis. Cambridge: Cambridge University Press. Johnstone, B. (2001). Discourse analysis and narrative. In: D. Schiffrin, D. Tannen & H. E. Hamilton (Eds), The handbook of discourse analysis (pp. 635–649). Malden, MA: Blackwell Publishing. Kalven, H., Jr., & Zeisel, H. (1966). The American jury. Boston: Little, Brown. Labov, W. (1972). Language in the inner city. Philadelphia: University of Pennsylvania Press. Lakoff, R. (1990). Talking power: The politics of language in our lives. New York: Basic Books. Manzo, J. F. (1993). Jurors’ narratives of personal experience in deliberation talk. Text, 13(2), 267–290. Manzo, J. F. (1994). You wouldn’t take a seven-year-old and ask him all these questions: Jurors’ use of practical reasoning in supporting their arguments. Law & Social Inquiry, 19, 639–663. Manzo, J. F. (1996). Taking turns and taking sides. Social Psychology Quarterly, 49, 107–125. Mattingly, C. (1998). Healing dramas and clinical plots: The narrative structure of experience. Cambridge: Cambridge University Press. Maynard, D. W. (1990). Narratives and narrative structure in plea bargaining. In: J. N. Levi & A. G. Walker (Eds), Language in the Judicial Process (pp. 65–95). New York: Plenum. Maynard, D. W., & Manzo, J. F. (1993). On the sociology of justice: Theoretical notes from an actual jury deliberation. Sociological Theory, 11, 171–193. Ochs, E., & Capps, L. (2001). Living narrative: Creating lives in everyday storytelling. Cambridge: Harvard University Press.

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Ochs, E., Smith, R. C., & Taylor, C. E. (1996). Detective stories at dinnertime: Problem solving through co-narration. In: C. L. Briggs (Ed.), Disorderly discourse: Narrative, conflict, and inequality (pp. 95–113). Oxford, UK: Oxford University Press. Sacks, H. (1992). [orig. 1968]. Lecture 1: Second stories; ‘‘Mm hm’’; story prefaces; ‘Local News’: Tellability. In: G. Jefferson (Ed.), Harvey Sacks, Lectures on Conversation (Vol. II, pp. 3–16). Cambridge, MA: Blackwell Publishers. Schegloff, E. A. (1992). Introduction. In: G. Jefferson (Ed.), Harvey Sacks, Lectures on Conversation (Vol. I, pp. ix–xiv). Cambridge, MA: Blackwell Publishers.

‘‘WE HAD NEVER JUMPED FENCES BEFORE’’: THE CITY, THE WOMAN, AND THE DRIFTER IN THE YAAKOBOWITZ CASE Leora Bilsky This article goes back to the trial that enthralled the state of Israel in its second year of existence, the trial of David Yaakobowitz, known in public as the murder and rape in Meir Park, Tel Aviv. A brother and his half-sister who were strolling in Meir Park at night were attacked by a stranger. The brother, a married man, managed to escape but later died of his wounds. The sister was attacked and brutally raped but managed to fight off the attacker. The police brought criminal charges against the person who called the police. He was accused of the murder of the brother. He was not charged for the rape of the woman. The sister turned into the main witness for the prosecution. In the legal community, the Yaakobowitz trial stands for articulating the mens rea requirement in the crime of murder. To the public at large, the trial is remembered as a traumatic event, symbolizing the transformation of the first Hebrew city – Tel Aviv – into a modern city facing increasing crime problems. The trial opened in April 1950, and in November 1950, the judgment was read: the accused was found guilty for murder and was sentenced to death. On appeal he was acquitted of murder and convicted for manslaughter. He was sentenced to fifteen years imprisonment.


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The first two parts of the article tackle the trial through the age-old tension between the private and the public. Taking a ‘‘trial as performance’’ approach, I examine the dramatic conflict that took place on the stage of the court between the desire to expose the ‘‘secret’’ and the constraints imposed by ‘‘due process.’’ I argue that it is not the legal precedent but rather the repeated failures to respect the constraints of law that made the trial into a didactic stage for the Israeli public. It served to teach the painful lesson of the danger of yielding to the desire to find the ‘‘whole truth’’ while disregarding procedural constraints as technicalities. While the first part of the article looks at the intrusions of law in the private domain, the second part looks at the invasion of the family into the center of the criminal trial. I argue that only in the judgment of the Supreme Court, a new understanding emerges of law as artifice, dependent on securing an insulated sphere from social forces. The third part further explores the trial as performance of identities. It focuses on the two ‘‘heroes’’ of the trial: the central prosecution witness – Naomi1 – and the accused – David Yaakobowitz. Both are ‘‘streetwalkers’’, wandering the streets of Tel Aviv and challenging the social order of the time. The woman and the new immigrant pose a challenge to the Court of how to adapt the public sphere to respect their rights. They bring the social experience of discrimination into the light of day and demand that the Court bridge the gap between Zionist ideology (committed to equality of women and immigrants) and a social reality of exclusion. Feminist literature is employed to understand the difficulty of maintaining the distinction between private and public in respect to women (in sexual offenses in particular) and other marginalized groups in society. The article highlights the various ways in which the law participates in their exclusion by constraining their narratives and limiting the credibility of their testimonies. However, it also shows that while the Court is relatively successful in overcoming its initial failures to hear the woman, it remains unable to listen to the ‘‘drifter’’ till the end. To understand this difference, we need to go beyond feminist theory and understand the logic of law in the modern state. I argue that while the woman challenges social prejudices, her claim does not undermine the logic of law. She demands to be included on the same terms as men. She does not undermine the private-public distinction as such, only asks that her right to privacy be respected. On the contrary, Yaakobowitz, the accused, poses a much more radical challenge to the modern legal order. His way of life as vagrant constantly blurs the distinction between private and public and at times even inverts it. The Court uses the trial to perform its own identity as the guardian of boundaries and as such repeatedly fails to comprehend the narrative told by the accused. Comparing the two can shed light on the terms

The City, The Woman, and The Drifter in the Yaakobowitz Case

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of inclusion that the law can offer to the marginalized. Moreover, since the affair is located at the very ‘‘beginning of law’’ – the Yaakobowitz trial can help us re-think the role of law in forming (and performing) social hierarchies in a new society.

1. ON PRIVACY After considering the material before me, I have formed the opinion that it shall be permitted for the petitioner to examine the file under scrutiny. Deliberation on the case did not take place behind closed doors and there is no lawful prohibition to the examination y in addition I accept the position of the respondent, according to which in spite of the fact that a large portion of the details of the affair were published in the judgment y the file contains material whose revelation can cause unnecessary harm to the central witness y the examination considered will be contingent on an undertaking in writing y according to which the petitioner will not publicize anything that will damage the privacy of the victims and their families beyond the damage that already occurred by the court judgment. (Decision of magistrate Yigaal Marzel, 2006 in the matter of C.A 125/50 Yaakobowitz v. Attorney General)

My path to criminal case 125/50 was directed, and bound, by legal tradition, by the limitations arising from the right to privacy. These limitations are imposed ex post facto. At the time of ‘‘The Affair,’’ the press was full of intimate details, as were the Court hearings and judgments. Now, fifty years later, my attempt to return to the case started with meeting a wall of privacy in place of the wall that was breached many years ago. Nathan Dunewitz, a trial reporter and journalist, dedicates a chapter of his book, The Accused: Dramas from the Court, to the Gan Meir affair. He, too, opens his discussion of the rape and murder that took place in the year 1949 with the issue of privacy. However, the park and not the Court constitutes the locus of privacy in his story: The evening of the 21st of August, 1949 was hot and humid. Many Tel Aviv residents were outside of their houses y in Tel Aviv of those years there weren’t air-conditioned apartments. Many lived in tiny apartments – often two or three families to an apartmentand in some there were shared washroom facilities. There was not even a bit of privacy y when hearts became heated and connections intensified, many of the youngsters would retire to the ‘‘bedrooms’’ of the city – distant places on the sands of the Tel Aviv beachfront or the public parks y Meir Park was a haven for forbidden relations y the locked gates didn’t prevent visitors to Meir Park. They would jump and pass over the fence, give a hand or shoulder to their date, so she could pass the physical barrier on the way to the regions of love y here in Meir Park took place the most serious crime of the State of Israel’s second year of existence. A youth was murdered by heavy blows and punches, and his girlfriend was beaten and raped. (Dunewitz, 2000, pp. 27–28)

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In Tel Aviv of those years, the public space – the park – provided the privacy that did not exist in the private sphere of shared housing. As such, privacy, the yearning for privacy, the infringement of privacy, the absence of privacy are filters mediating between us and the affair that shocked the country. We fluctuate between two poles. On one hand, we encounter the park, as the domain of love, as a place of darkness and a liminal space between the lawful and forbidden. It was a domain governed by passions and Eros. Its existence was dependent on the secretive dark, on the placing of a barrier before the social and legal order of the day. The park, we hear, was a place for minor transgressions, for amorous affairs, an exit from the family framework. It offered a space on the periphery of the law, sheltered from legal intervention. But the park, it was rumored, was also a place witnessing more serious crimes and offenses. The murder and rape brought Meir Park under the gaze of the law. On the other hand, we encounter the Court, governed by the logic of rules and reason. The law is dependent on public process, on transparency and the light of day to fulfill its role: to determine guilt and innocence, to impose limits, to expel violence and to guard the citizens’ right to free movement and to privacy. In between these poles stands the ‘‘affair’’ of the murder and rape in the public park. As it turns out the young couple were half-brother and sister from the same father. There were rumors of incest between them. As such, the rape and murder in the park also raises the question of the line between the family and the law, between social-religious taboos and legal prohibitions. The shedding of the light of law on the events that took place that night helps to clarify the truth, to ascertain guilt, to place responsibility while also serving on a symbolic level to reassert boundaries and restore order. However, to fulfill its role, the Court must shine its light on Meir Park (both literally and metaphorically). It has to penetrate the dark pathways of the park, read anew the timeline of that night and try to reconstruct the crime committed on the periphery of law. This process squarely confronts all that was meaningful in Meir Park: the promise of privacy, the social need to preserve a space for love and passions, beyond the reach of the long hand of the law. To guard this ‘‘private’’ space, the Court must violate it, must undermine and change it, maybe irreversibly. The Court’s attempt to ‘‘shine light’’ on the events of 21 August, 1949 puts the legal system and the nascent Israeli Court to a difficult trial. It will force the Court to confront its own limits on finding out the ‘‘truth’’ while respecting the privacy of the individual. The Meir Park Affair, as I will attempt to illustrate, repeatedly exemplifies the pull of the law toward the domains of Eros represented by the park. It demonstrates the law’s desire to


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use its rationality, its rules and its laws on the entirety of the public sphere. In addition, it demonstrates the danger that such an attempt to clarify the Affair down to its minute details and secrets poses to the rule of law. I argue that from this dramatic confrontation between Eros and law, passion and prohibition, park and Court, grew a new understanding of the rule of law and a new commitment to due process in the young state. The trial offered a didactic theater of sorts demonstrating to the Israeli public the need for the law to limit itself so as to secure its effectiveness and legitimacy. In other words, the trial demonstrated that procedural limitations should not be understood as acquiescence to a foreign legal tradition (British rule), but as self-constraints undertaken by the Court to make the rule of law possible. What is the relation between Meir Park and the Court, between the darkness of the park and the light of the public trial? How were the limits drawn in the matter of murder and rape in the nascent Supreme Court of the State of Israel in its second year of existence? How does this Affair help us rethink the role of the trial in negotiating the age-old tension between the private and public, between darkness and light and between truth and law? By adopting a ‘‘trial as performance’’ approach, I focus in the first part of the article on the repeated failures to establish a firm line between the two spheres and the growing anxiety these failures produced in the public. This method tries to look beyond the judgment of the Court, beyond the legal texts, and investigate the trial as event (Gross, 2001). I am interested in studying the interaction that took place between litigants, witnesses and judges in trying to draw the fragile line between private and public. The repeated failures at drawing this line stem from both sides: an omnipotent understanding of law and constant invasions of the family into the legal process. I argue that these failures, much more than the Supreme Court’s precedent, enabled a transformation in the understanding of ‘‘due process’’ and contributed much to the legitimacy of the Court as a guardian of boundaries.

2. THREE FAILED BEGINNINGS The Affair begins with failure – to be exact, with three failed attempts to investigate the incident. These are failures to find out what really happened that night in Meir Park while doing so within the constraints of the rule of law. Three people were charged with investigating the incident: the police officer, the examining magistrate and a judge of the District Court. All three attempted to arrive at the ‘‘absolute truth’’ to tell the

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‘‘full story’’ and to do justice – attempts that were doomed to fail. What can these failures teach us about the value of trial as performance? 2.1. The Police The police officer who headed the preliminary investigation was Officer Avigdor Katznelbogen who had no prior training as an investigating officer. He was an administrator. On the night of 21 August, 1949, he was on rotating patrol duty when the first report of the incident arrived. He decides to manage the investigation himself. He collects the initial testimony from the main witness, Naomi, the woman who was attacked and raped. He investigates her in the hospital as she still lies bandaged and in pain, without full ability to speak, and with her hearing substantially weakened. Naomi’s initial ‘‘testimony’’, which he composes as a legal complaint, is a document speaking in two conflicting voices. Here is a partial citation from Naomi’s ‘‘testimony’’ hand written by officer Katznelbogen: We jumped the fence y we sat on the grass and I noticed that at the same time there were a number of other couples in the park, close to us there was nobody. We sat for about two hours and during that time we made love. During that time I took off my bra and I put it in my pocket and immediately buttoned my shirt. To take off the bra I had to take off my shirt. I didn’t see any lone man around, neither two men, nor more than that. Danny also lay on me and it turns out soiled me with his seed but I am certain that he did not insert his sexual organ in my sexual organ. There was no sexual contact between us. At 11:30 p.m. I felt that someone was giving a number of powerful blows with a stick to Danny and immediately after that to me. Danny lay on the ground from the force of the blows and I lay beside him to see what happened to him. The attacker came behind Danny and at that time I sat almost across from Danny y. (Testimony of Naomi in the hospital, exhibit no. 5 in C.C. 1/50 Attorney General v. Yaakobowitz)

The initial document of Naomi’s complaint preserves the duality between the seen and the hidden. The sentences I have emphasized in bold were actually crossed out by a pencil line in the original document. If we read the quotation without the crossed out portions, we recognize a familiar legal complaint of rape – a stranger jumps out from the darkness, strikes the man with a stick and later drags away the woman, attacks and rapes her (Estrich, 1987). All these are legitimate matters for the law to investigate. However, the erased lines tell a different story. They expose Meir Park as a domain of prohibited relations. The deleted sentences tell of intimate relations, of physical closeness between a young man and a young woman who were in reality siblings. These sentences give us a glimpse into the prohibited domain of the social taboo of incest. It tells of a sexual liaison between brother and


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sister. These erased sentences were the basis for the unusual request of the prosecution to oppose the submission of the initial complaint document of the central witness for the prosecution. The defense attorney, however, pointed to the erased lines as an attempt to falsify a legal document and therefore placed decisive importance on the submission of the original document with the erased lines included. During Officer Katznelbogen’s testimony in Court, the improper way this testimony was gathered comes to light. It was taken in the hospital, while the witness lay bandaged and in pain. Naomi had difficulty speaking and was suffering from damage to her sense of hearing. Testimony was collected in a room full of other patients, without any semblance of privacy. In fact, we are not speaking here of the voice of the complainant recorded by the reporting officer. Rather, these were conjectures raised by the officer himself to which the witness was requested to respond in the affirmative or negative, to admit or deny. When asked about the chain of events prior to the attack, about the nature of her relationship with her brother Danny, Naomi refused to answer. She told the police officer that these were irrelevant to the investigation of the crime. In court, Katznelbogen testifies to the method of the investigation: The words that were subsequently erased were not those of Naomi, rather my own words y before that there was a conversation between us: I said: You are two adults, at a certain time and place, is it possible that while removing the brassiere etc., he lay and soiled you with his sperm etc. Her response was: ‘‘These things are not relevant to the case.’’ At my insistence: Is it possible or not possible; since this will be discovered anyway, the reply to my words ‘‘is it possible’’ was ‘‘maybe’’ or with a nod of the head. When I said she ‘‘agreed’’ with the statement, this is the form of acknowledgment I was speaking of. (Cross-examination of Officer Katzenelbogen, C.C. 1/50 Attorney General v. Yaakobowitz, Protocol 19.4.50, 37)

We learn that the police officer, the first to hear the testimony of the rape victim, begins his investigation with accusing the victim. This was no simple accusation of sexual permissiveness. The policeman accused Naomi with breaching one of the most ancient taboos, the taboo of incest that stands at the foundation of law (Butler, 2002). Regarding the deleted lines, the Supreme Court writes later: All the emphasized words y are erased, and not only were they erased, but they were erased by Officer Katznelbogen –as he testified – either right away or immediately after he read them to Naomi y and he did it according to her own request. (C.A 125/50 Yaakobowitz v. Attorney General, 527)

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The officer, lacking any investigative experience, did not restrain himself. First, when he failed to pass on the investigation to a certified investigator. Later, when he improvised an investigation and focused precisely on the aspects that are most sensitive to safeguarding the right of privacy of the victim, Katznelbogen’s actions are motivated by the desire to hear the full story, regardless of whether it is relevant to the case or not. He asks to know the ‘‘secret,’’ to understand the nature of the relationship that existed between the brother and sister. It is Naomi herself who tries to impose limits on the police investigation, to distinguish between the legal and the personal, the public and private, saying that these things are irrelevant to the investigation of the crime. She resorts to the only power of resistance left to her – the power to refuse. She refuses to sign the complaint written in her name until all the conjectures raised by the officer are removed. This is how her initial testimony with the deleted lines comes before the Court. The document of complaint speaks with two voices, telling both the legal story and the gossip story, preserving both the written and the erased sentences. The District Court attempts ex post facto to create an appearance of ‘‘the rule of law’’ by its decision to ignore the deleted lines: We are not inclined to place import generally or specifically on these words, and we will relate to them as if they were not written. (C.C. 1/50 Attorney General v. Yaakobowitz, Verdict, 23)

In its summary of the deliberation regarding this evidence, the Supreme Court accepts the position of the District Court, while offering guidelines for future police investigations: In order to prevent a recurrence of this phenomena in the future and not to diminish the great efforts invested by the police, especially Officer Katznelbogen y we cannot look positively at the fact that the police did not find it proper, in light of the seriousness of the incident, to have the collection of the above testimony, even at this early stage of investigation, done by a more experienced police officer. (C.A 125/50 Yaakobowitz v. Attorney General, 528)

Notwithstanding this warning, the failure was not limited to the police investigation. Similar mistakes were later committed by the examining magistrate and later again by the District Court. It appears that these repeated failures were driven by the desire to tell the story in full, to find out the ‘‘whole truth’’ without thinking about the constraints of ‘‘due process’’ and the rule of law in any serious way.


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2.2. The Examining Magistrate In 1949, the second year of national independence, Israeli jurisprudence was still dominated by the legal inheritance of the British Mandate, and this included, the institution of preliminary investigation.2 The head Magistrate’s Court Judge in Tel Aviv, Eliezer Malchi,3 administered the investigation of the Meir Park rape and murder. The preliminary investigation was characterized by repeated departures from the courthouse, by the judge’s decision to leave the courthouse and travel up and down the pathways of the park and the surrounding streets of Tel Aviv. The temptation to go outside to the scene of the crime was great, as we are speaking of locations adjacent to the courthouse. As such, the legal deliberation also supplies us with a map of the streets of Tel Aviv in these early days. After hearing the police testimonies of what occurred on that same night: Where did the attack take place? Where did the rape occur? What tools or weapons were used in the attack and so on, the Court goes out to visit the scene of the crime in the park. The outing occurs in the dark of night, in an attempt to re-construct what took place. The Court, with representatives of the prosecution, the defense and the accused (handcuffed) visit the park, from there go to the house where the flowery robe that later found its way to covering the exposed body of the rape victim was stolen from a laundry line. After that the Court retraces Danny’s walk, from the park to his mother’s house on Bugrashov St., where he collapsed and was taken by ambulance to hospital, where he later died. Another departure from the space of the courthouse occurs in relation to the testimony of the rape victim. While Naomi is still convalescing in hospital, Judge Malchi decided to hear her testimony in Hadassah Hospital behind closed doors, while the witness lies on a stretcher in the office of the hospital administrator. These ‘‘visits’’ to collect evidence take place a number of times (and in one instance, Naomi is brought to the courthouse by ambulance to give testimony behind closed doors) (Dunewitz, 2000, p. 53). Later in the investigation, the judge leaves the courthouse another time to the place where the accused David Yaakobowitz was apprehended, 14 Tahkemony Street, his place of residence. Following the map of the Court’s travels re-enacts a constant wandering and walking in the streets and parks of Tel Aviv. The preliminary investigation lasted three weeks, and at its end began the trial at the District Court. At the beginning of the trial, the defense counsel, Adv. Yitzhak Ben-Yemini,4 requests to nix the entire preliminary investigation for faulty conduct that amounts to a violation of the right to due process. One deficiency claimed was the spatial deviations – the court’s

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various ‘‘outings’’ to the scene of the crime. The second procedural failing concerned a jurisdictional deviation. Judge Malchi effectively administered a trial instead of a preliminary investigation: he heard many witnesses, did not read the testimony back to the witnesses and did not have the witnesses sign their approval (as is required by investigatory procedure). Especially egregious is the matter of the central witness Naomi Stein, who was questioned in hospital and whose testimony was not read to her before she signed it. Interestingly, the two petitions contradict each other – the first requires the procedure to resemble a trial, and the second requires the procedure to resemble a police investigation. Either way, the public witnessed a reenactment of the police officer’s transgressions, this time on the podium of the Magistrate’s Court. It is a repetition of the initial failure of the police to engage in an investigation of the truth in a manner required by law. Similar to Officer Katznelbogen who put words into Naomi’s complaint report, without her permission, and only erased two controversial lines when she refused to sign, so Judge Malchi has Naomi sign her testimony without reading it to her and without receiving her consent. The police’s first attempt to hear Naomi’s voice was prevented due to overzealousness to air the whole story, including the story of the intimate relations between what turned out to be half-brother and sister. The second attempt to hear Naomi was carried out by an experienced judge but again failed due to the same overzealousness – the attempt of the judge to arrive at the unmediated ‘‘truth.’’ The defense’s petition is accepted and the Court decides that the judge erred in carrying a full trial instead of being satisfied with the limited task of conducting a preliminary investigation. The recurring failures of both the police and the examining magistrate stem from a joint misunderstanding of the procedural limitations mandated by law (procedure of question and answer, signing of witnesses, etc.) as merely technical restraints to the investigation of truth. This failure illuminates the lack of understanding of due process as intrinsic to the legal investigation. The agents of law refuse to obey legal constraints which they view as obstructions in the way to discovering the truth. In accepting the defense counsel’s claims and annulling the whole preliminary investigation, the District Court comments laconically: We cannot help but note with sadness the waste of time, effort, and money caused by the neglect of the examining magistrate. It is a great shame that the examining magistrate did not abide by the rules stipulated by law. (Dunewitz, 2000, p. 60)


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2.3. The District Court Supreme Court Justice Shimon Agranat, sitting on appeal of the District Court, comments: And here is a final general comment that carries some criticism of the judgment under appeal. It appears to us that the decision exposes, a little here and a little there, an attempt to excuse and explain what is not necessarily possible to excuse and explain. In a murder trial where the witnesses present at the time of the crime, are few or absent altogether, the prosecution case might contain gaps or unexplained matters. It is clear that in a situation like this it is not the job of the Court to fill the void, and surely, heaven forbid, to do so artificially y in other words, the role of the Court is to judge the accusation on the basis of the evidence presented in trial, and not to try and draw the full picture of the affair with all its details. (C.A 125/50 Yaakobowitz v. Attorney General, 520)

The Justice continues: We are not disapproving of the attempt to create what we call a ‘‘reconstruction’’ of all the circumstances leading to the murder y however, what we wish to emphasize is that the guilt of the accused is not always dependent on the success of this reconstruction y it is better for the court to conclude that its narrative is not complete and that the prosecution’s version contains facts that are not sufficiently explained, than to determine a fact or offer a solution that has no corroboration in the evidence or testimonies. (C.A 125/50 Yaakobowitz v. Attorney General, 520)

The Justice offers a didactic comment about the meaning of legal judgment that goes to the heart of the relationship between legal truth and factual truth, between the desire to tell the whole story and the limitations of legal procedure. Justice Agranat adopts a modest judicial stance – he has no desire to be the omnipotent storyteller. It is possible and indeed necessary to arrive at a verdict – even when there are voids and gaps in the legal narrative. The role of law is not to tell the full story but to adjudicate, to rule on guilt or innocence by way of known laws and pre-established procedures. The Court can fulfill this duty even if the factual basis for the judgment is not complete. This comment resonates the initial position expressed by the rape victim to the investigating policeman – that there are certain things that should remain outside the domain of law, and it is not the role of law to try and explain them. Agranat points to the desire to furnish such an explanation as the root for the preceding legal failures. For Justice Agranat, the power of the law lies in the limitations it places on itself. Agranat makes other didactic comments, all dealing with limitations and boundaries. The first concerns the distinction between a trial court and an appellate court. Justice Agranat explains that the distinction between questions of fact and questions of law greatly reduces the ability of the

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appeal court to interfere in the factual findings undertaken by the lower court. Another distinction concerns the difference between legal deliberation and public debate. Here, Agranat warns the Court against the influence of prejudices and public hysteria that characterize the public’s reaction to a ‘‘heinous crime’’ such as the one produced by the rape and murder at Meir Park.5 Underlying all these didactic comments is the attempt to create a distance, a difference, between the Court and the ‘‘reality’’ it is judging – a distance that enables the functioning of the judicial process. These are self-imposed limitations that the law undertakes to facilitate the trial. Justice Agranat’s observations reverse the assumptions that guided the work of the legal bodies charged with the investigation of the crimes up to the appeal. While beforehand, the police, the Magistrate Judge and the District Court attempted to overcome the physical distance from the ‘‘events’’ by erasing the distinction between Court and park, these didactic comments teach the opposite lesson. According to Justice Agranat, the law requires distance, a separate space, rules of speech and special rituals to make a valid judgment. How, if at all, did the legal narrative offered by the District Court deviate from proper jurisdiction as sketched by Justice Agranat? What are the obscure facts that he attempts to illuminate? What are the ‘‘gaps’’ that he tried to fill? The District Court judgment ends with two riddles, unexplained facts that seem to undermine the validity of the conviction. First is the evidentiary riddle of how to explain that none of those who saw the accused immediately after the incident, when he was attempting to call for help, noticed anything unusual in his appearance. This is especially puzzling in light of the fact that both the murder victim and the rape victim were covered in blood. Second is the psychological riddle: How is it possible that someone who committed such an egregious act of rape would go and bring a robe to cover the exposed body of his victim and then would go out of his way and call the police and bring them to the scene of the crime? These are two inexplicable gaps in the story which undermine the credibility of the guilty verdict and the Court feels the need to address them so as to relate the complete story without contradictions. The Court answers to the evidentiary riddle cognitively – all those who saw Yaakobowitz on that night were interested in the victim and not in him. Regarding the psychological riddle, the Court adopts the explanation offered by the civil prosecutor (Adv. Stein, father of the murder victim and the rape victim), that such is the course of action of a ‘‘sex psychopath’’ who assumes the fear of the attacked couple, and especially the woman, of being exposed. The court


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explains that the accused probably worried that the rape victim would be found in the park and then the police would get involved. As a result, he brought her the robe and called for help of his own volition. However, in this case, the plan was compromised, as the male victim who left the park walking, later died, and the female rape victim saw no reason to hide her relationship with the murder victim and not to complain, since this was an innocent relationship between brother and sister.6

3. THE INVASION OF THE PRIVATE The first part of this chapter examined the various deviations from the rule of law by the agents of law and the legal failures they produced. I argued that it is precisely these failures and not the judgment as such that illuminate the importance of the Yaakobowitz trial as didactic theater, wherein the young country witnesses, on a public stage, the various attempts to discover a ‘‘secret’’, and the danger to the rule of law of yielding to this temptation. Seeing the trial as performance teaches the importance of accepting limitations of due process not as externally imposed but as an integral part of the concept of law. However, the dangers to the rule of law arise not only from the desire to touch the ‘‘secret,’’ but also from the fragility of the law. The trial had to withstand strong forces that threatened to overcome the legal deliberation – the forces of emotion, of the body and of the family. In the second part of the chapter, I examine the ways in which these forces that traditionally belong to the private sphere invaded the trial.

3.1. The Civil Prosecutor As mentioned, in 1949, the jurisprudence of the State of Israel was based to a great extent on the legal tradition of the British Mandate, alongside remnants of the prior Ottoman legal tradition. We noted, for example, the institution of preliminary investigation inherited from British Mandate.7 Another inheritance from the Ottoman law (which was influenced in this case by French law) was the institution of the ‘‘civil prosecutor,’’ a private attorney representing the victim, alongside the public prosecutor acting on behalf of the State.8 In Yaakobowitz, the Court permitted civil prosecutors to appear on behalf of the victims: of the murdered man and of his widow. This permission allows not just the entry of the individual victim into the center of the

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criminal trial, but actually an invasion by the family. The civil prosecutor, attorney Mordechai Stein, was the father of both the murder victim and the rape victim. The family relations of the private prosecutor to the victims reenacted on a public stage the dangerous blurring between family and law that lurked over the affair (as the initial complaint blurs suspicions of incest with crimes of rape and murder). How does this blurring of boundaries affect the trial? How does it affect the ability to fence in and differentiate between the public and the private, the legal and the familial? What is the effect of this ‘‘invasion’’ on the legitimacy of the Court? I would like to focus on two petitions submitted by the civil prosecutor, which illuminate the problematic relationship between the family and criminal law. These requests were raised toward the end of the trial (after the prosecution and defense rested their cases). The first request was to change the name of the accused. The second request was to permit a confession that was extracted from the accused against his free will and through coercion. Both the State Prosecutor and the defense counsel opposed these requests, and subsequently, the Court refused them. However, from a cultural perspective, they expose the way the logic of the family posed a serious threat to Court order. Change of Name: Adv. Stein requested to amend the indictment by changing the name of the accused from David Yaakobowitz to his real Greek name Christus Michael Nikoliades. (C.C. 1/50 Attorney General v. Yaakobowitz, Protocol 11/10/50, 160)

With this petition, Stein sought to reveal to the public the true identity of the accused, a Greek Christian ‘‘passing’’ as a Jew. During the trial, it became clear to the police that Yaakobowitz, who claimed that he was a Greek Jew originally from Salonika, was actually a Greek Christian from Cyprus.9 He enlisted in the British Army and arrived as a British soldier in Palestine where he married a young Jewish woman and changed his name. The law places great importance on the name of the accused. In the common law system, the name of the accused becomes the name of the legal case, the way in which jurists refer to and cite the case as precedent (and indeed, the ‘‘Yaakobowitz case’’ starred on criminal law reading lists for many years). Revealing the non-Jewish name of the accused carried special significance in this trial as it raised the issue of inter-group rape, a situation in which it is easier to create empathy with the woman victim (from within her ethnic group). It helps depict the rapist as the threatening Other, and the invasion into the woman’s body symbolizes an invasion of the boundaries of her ethnic group (Bilsky & Verbin, 2003, p. 391).


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Moreover, at the time of Yaakobowitz, the law dictated a mandatory death sentence in murder convictions.10 This was also an inheritance from the British colonial law. The conviction of Yaakobowitz was one of the first instances where the independent Israeli court was called upon to impose a death sentence on a Jew.11 The revelation of the true identity of the accused as a Greek Christian could therefore help overcome the hesitation of imposing a death sentence on a criminal who belonged to the Jewish community. The defense counsel opposed the name change precisely for this reason: ‘‘I view this request as a procedure whose only goal is racial discrimination, since usually we hang the man and not his name’’ (Dunewitz, 2000, pp. 70–71).12 This is imprecise since it ignores the importance of the name to the legal precedent. To this, the civil prosecutor Adv. Stein responds: ‘‘It is my desire only to establish a fact, which is important from a legal perspective.’’ This is also imprecise, since the power of the name is especially important in a matter of rape and murder such as this that threatens the self-image of the Jewish Community.13 The issue of the true identity of Yaakobowitz arose previously in his cross-examination, and while the prosecution chose not to request the name change on its own initiative, this was in spite of the fact that the whole legal case for the prosecution was built on exposing Yaakobowitz’s lies about his whereabouts on the decisive day.14 It is possible that the prosecutor understood that exposing Yaakobowitz as an imposter ‘‘passing’’ as a Jew would be one step too far. It would turn the trial to a public stage for denunciation of the Other. At the end of the day, the ‘‘truth’’ about Yaakobowitz’s identity threatened to undermine the appearance of impartiality of the Court and the Judge rejects the request.15

3.2. Coerced Confession Throughout the trial, the accused denied his guilt and claimed that he was not the man who attacked and raped Naomi Stein. At this late point, after the prosecution and defense completed their arguments, Adv. Stein requests to admit a ‘‘confession’’ by the accused, which was not given of his free will. During trial, the accused repeatedly complained of unfair treatment as a result of a forced hospitalization in a mental hospital and receiving injections by force. These complaints remained unsubstantiated. Submission of the ‘‘confession’’ thus obtained would have required the Court to address fundamental questions regarding the meaning of due process. It could have convinced the Court of the need to develop Israeli ‘‘Miranda Rules’’16

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regarding the admission of coerced confessions. The confession that the civil prosecutor requested to admit was given after a psychiatrist at Geha mental hospital administered ‘‘certain injections’’ to the accused. The State Prosecutor opposed the request to submit the problematic confession. The defense counsel, Adv. Ben-Yemini, also strongly opposed the attempt, which could create a hostile opinion of the accused. He blamed the Court for allowing the civil prosecutor to even make this petition at this late stage of the trial. A harsh exchange followed between Adv. Ben-Yemini and President of the Court Bar-Zakai regarding the court’s ability to provide due process to the accused: Judge Bar-Zakai: The good sir will not educate the Court on how to administer laws. Ben-Yemini: It is not my desire to educate the Court. I am only defending Israeli law, as I would like to see it administered fairly. Judge Bar-Zakai: I am certain that in the days of the British, the good sir would not speak in such a way with the Court. Ben-Yemini: I am not insulting anyone, and as to the British, it is unlikely that they would allow someone to raise new requests after the closing of testimony. Judge Bar-Zakai: I was a Judge before the good sir was even a lawyer. Ben-Yemini: I am sorry to say, this piece of information does not fit the reality. (Dunewitz, 2000, pp. 72–73)17

This exchange reveals the latent forces of this trial. Judge Bar-Zakai symbolizes the continuity between the Israeli legal system and the law of the British Mandate. He was appointed Judge by the British and earned great esteem, for, amongst other things, his fine European manners (Dunewitz, 2000, pp. 61–62). In spite of the fact that he remained in his position after the creation of the State, Bar Zakai was not promoted to the Supreme Court. While the Judge requests to keep the English rules of politeness, the defense counsel inserts into the trial the straightforwardness and bluntness of the native born Israeli Sabra. Adv. Ben-Yemini raises a central point hovering in the air – whether the young legal system will be able to adhere to the English legal tradition – to preserve its commitment to due process not as rules of politeness, but as intrinsic to the rule of law. The Court was not satisfied simply with rejecting the defense counsel’s petition. The Judge attempts to alter the facts, to create ex post facto a clean slate of the rule of law by sending a ‘‘clarification’’ to the press. According to this clarification, the Court informed Adv. Stein that he was prohibited to raise these issues and also instructed Adv. Ben-Yemini that answering would be out of place. The sensitive argument regarding the ability of young Israeli court to preserve the English tradition of due process disappeared from the statement as if it was not made. However, this exchange did not completely


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disappear, rather it left its trace in the later disagreement between Justice Agranat and Justice Zilberg regarding the need to adhere to English rules of procedure that are based on prejudice against women. The two petitions of the civil prosecutor have in common an attempt to lift the legal mask, to arrive at the ‘‘naked truth’’, to reveal the ‘‘true identity’’ of Yaakobowitz, and to expose his ‘‘confession.’’ However, it is precisely these attempts that pose most danger to the integrity of the legal process. They undermine the possibility of creating a legal arena relatively isolated from emotions and social biases. Later, Justice Agranat warns against them in his didactic remarks. These are dubious ‘‘truths’’ since in the eyes of the law the damage they do outweighs the benefit. Both the prosecution and the defense, each for its own reasons, abstained from raising these issues. Only a member of the family finds it difficult to accept the artificiality of the legal separation between the private and the public, between body and soul. He makes these requests in search of the ‘‘whole truth’’ and thus undermines the very foundations of the legal process. The civil prosecutor’s request to admit the coerced ‘‘confession’’ of the accused brings the body to the center of the judicial deliberation. The question of the relationship of the body to its legal representation is raised frequently during the District Court trial. The difficulty of the Court in creating an artificial space, separate from the demands of the body, arises in Yaakobowitz first and foremost from the fact that the punishment looming above the trial is the death penalty – a penalty that inserts the fragile human body into the heart of legal deliberation and gives omnipotent power to the Court – to rule on life and death. In addition, Yaakobowitz twice attempts to commit suicide during the trial, when it becomes clear that the court is going to appoint him a lawyer against his will.18 The law views the legal players though their legal masks – the lawyer’s role is of representation and as such he can be replaced. In contrast, Yaakobowitz demands to be represented only by Adv. Ben-Yemini. He demands, in other words, to view the lawyer as a unique individual. However, the body of the lawyer betrays him and undermines the dictates of ‘‘legal time’’ (a linear time, devoid of the needs of the body and hence controlled and predictable). The illness of Adv. Ben-Yemini, his failing heart, leads to repeated requests for extensions and delays. The fact that this was a murder trial pressures the Court in the opposite direction, hastening the trial in the name of due process. However, the refusal of Yaakobowitz to cooperate with other lawyers together with the reluctance to impose the death penalty on an unrepresented accused ultimately brings the Court to submit and agree to stay the deliberations for many months. Adv. Ben-Yemini passes

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away close to the end of the District Court trial. The Court sentences Yaakobowitz to death and he appeals to the Supreme Court. Heretofore, we have seen how the rationality of the private sphere, which places the interests of the family before that of the public, the body before abstract rule, emotion before due process, undermines the possibility of establishing and preserving an artificial legal sphere19 controlled by rules of procedure and legal time. The suspicion of incest hovering over the affair undermines the ability of the trial to overcome the desire to expose the secret, to arrive at the full story. The looming death penalty, the first one imposed by the independent Israeli Court, undermines the possibility of shielding the legal process from the forces of the human body and inflamed emotions. Nevertheless, the biggest threat to the separation between the private and public arises from the fact that the rape victim and the central witness for the prosecution is a woman.

3.3. The Woman and the Beginning of Law In the well-known novel of Italo Calvino, Invisible Cities, under the title ‘‘Cities and Desire,’’ a story is told of the establishment of the city of Zobeide, a city created for the dream woman of men from different nationalities: They saw a woman running at night through an unknown city; she was seen from behind, with long hair, and she was naked. They dreamed of pursuing her. As they twisted and turned, each of them lost her. (Calvino, 1979, p. 45)

When they awoke, each man turned to look for the woman of his dreams but could not find her. Instead, they found each other and decided to build the city of their dreams: In laying out the streets, each followed the course of his pursuit; at the spot where they had lost the fugitive’s trail, they arranged spaces and walls differently from the dream, so she would be unable to escape again. (Calvino, 1979, p. 45)

Calvino captures in this story the ambivalence of men toward woman and city. On the one hand, the city was created out of desire for the woman. On the other hand, the city was built to control the woman, to catch her and to imprison her.20 Elizabeth Wilson summarizes the problematic history of the entrance of women into the public sphere of the city: Almost from the beginning, the presence of women in cities, and particularly in city streets, has been questioned, and the controlling and surveillance aspects of city life have always been directed particularly at women. (Wilson, 1992a, pp. 14–15)


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At the center of Yaakobowitz stands the first Hebrew city – Tel Aviv – and the attempt of a woman to walk freely in its streets and parks without fear. How did Israeli law cope with the need to ensure an open public sphere equally accessible to both men and women? What is the role of the woman in the process of delineating the boundary between public and private in the trial? Does the woman successfully enter the public trial as an ‘‘equal among equals’’? Does the law succeed in ensuring her the right to freely wander the public spaces of town? In literary criticism, it is common to understand the separation between public and private through the prism of gender. The public sphere is identified with man and the private sphere with woman. The trial is generally considered to be part of the public sphere. Nevertheless, it is a special public sphere, controlled by rules and scripts that structure the interactions of the participants. Its rulings, in turn, shape the public sphere outside it. As such, it is possible to see the trial as an intermediate sphere. The court is expected to correct disturbances in the public sphere and to do this on a public stage and according to specified rules of procedure. Yaakobowitz was one of the first cases to raise the issue of rape in the young State of Israel, a rape conducted in the urban sphere and exposing the ambivalence toward women entering it. The rape occurred in Tel Aviv, in a park named after its first mayor, Meir Dizengoff.21 The incident, and the ensuing trial, exposed fears regarding the development of Tel Aviv into a large modern city, multi-ethnic and multicultural, with problems of anonymous crimes (LeVine, 2005; Mann, 2006; Schlor, 1999). At the center of the trial was a woman asking the right to wander freely in the streets of Tel Aviv – at night, in parks. How can the young law cope with the independent figure of the modern woman? How does the law imagine the place of the woman in the first Hebrew city? Naomi was the victim of a particularly brutal rape. The act of rape aims to turn the woman from a subject into an object, reducing her entire existence to that of her body. Here is how the accused testifies as to how he first saw Naomi (as noted, he claimed that he first saw her after the rape): I was on the sidewalk beside the park. Beside the gate, at the opening of the gate, I again heard moaning. I looked left and right and I heard more moaning. I understood where the moans were coming from and I went there. As I proceeded a few meters I saw a white thing on the ground y I got closer to there. I saw the body of a woman. I lit a lighter beside the body and I sat on my knees. I saw disheveled hair with blood and blood on the face. I asked ‘‘What happened’’? She answered ‘‘Magen David’’ [First Aid – Israeli Red Cross, L.B] I asked her again; but she did not reply. (Trial protocol, 125, emphasis added, L.B., C.C. 1/50 Attorney General v. Yaakobowitz, Protocol 25.5.50, 125)

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In Yaakobowitz’s testimony, Naomi is divided into the dismembered parts of her body. She is turned into a moan, a white thing, the body of a woman, to unkempt hair and blood. Her ability to communicate is limited and reduced to its barest essence – a call for help. The law is called on to reset the boundary, to return the tools of representation to the woman, to connect the parts of the body and to relate to the woman as a legal subject (Brison, 1997, pp. 12–39). However, as we have seen, the trial itself failed repeatedly to respect her privacy (in both the medical and the police investigations). Opposing these intrusions, Naomi tries to mark the difference between the private and the public with her own body. She refuses to discuss matters that appear to her irrelevant to the legal proceedings.22 She attempts to mark these boundaries for the law after having suffered from one of the worst possible violations of respect for the boundaries of one’s body – rape. In doing so, she takes to herself the voice of ‘‘the law’’ – rational, exact, self-controlled. In this way, she presents a double challenge to Israeli law: (1) To defend women from violations of the boundaries of their bodies; (2) to do so in a way that respects the privacy of the woman, even when the woman is ‘‘suspect,’’ one who takes to herself the right to wander the streets and parks of the city at night. In the following, I examine how the young legal system coped with the double challenge presented by Naomi by discussing three issues that played a central role in the trial: 1. The woman as legal personality. 2. The requirement for corroboration in sex offenses. 3. The woman as a ‘‘street walker’’.

4. A SEPARATE LEGAL PERSONALITY One of the characteristics of citizenship in the modern age is the recognition of legal personality, the capacity to sue and be sued. The root of the word persona comes from the Greek word for mask. It conveys the paradoxical idea that the human face must be masked for the law to recognize it. In Israel upon the founding of the State, women were recognized as equal citizens regarding their political right to vote and be elected to the Knesset.23 However, in light of the limits that Jewish religious law places on married women, and on the testimony of women in general, the Israeli legislator specifically recognized the legal personality of women in the Law for the Equal Status of Women of 1951.24 Legal personality allows a ticket of entry


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into the public sphere of the law. The limitations of Jewish law did not apply to Naomi as during the trial she was not a ‘‘married woman.’’ Nevertheless, her entry into the trial was not without its problems. If we view the trial as performance, we realize that Yaakobowitz represents the first attempt of the Israeli legal system to cope with the concrete meaning of recognizing the equal rights of women. The legal standing of Naomi throughout the trial remains unclear, hybrid, afloat frequently between the public and the private. As such, for example, her testimony during the first trial was given outside of Court, in the hospital and behind closed doors, because of the injuries from which she was suffering. However, even after she was released from hospital, her testimony was taken numerous times behind closed doors to protect her privacy. As a result, the law, intended to defend the woman, contributes to the identification of the woman with the body and with the private domain. The original complaint of Naomi which speaks in two contradictory voices – private and public – symbolizes Naomi’s standing throughout the trial. The ambivalence of the law toward the woman is already evident in the way the indictment shapes the legal platform. Two crimes occurred, murder (the man) and rape (the woman). However, the State chooses not to have Yaakobowitz stand trial on two separate counts. Rather, he is accused of murder, and the accusation of rape is swallowed from a legal standpoint by the murder charge.25 Thus, the composition of the indictment turns the rape from a separate crime standing on its own, and intended to protect the woman, into an ‘‘extenuating circumstance,’’ which turns manslaughter into murder. The indictment indicates that the rape of Naomi is not viewed as an end in itself but becomes the means to proving the murder of her brother Danny.26 The decision to try Yaakobowitz only on one count turns Danny into the sole victim in the eyes of the law while. Naomi (the rape victim) is not considered a victim from a formal point of view. Instead, she becomes the central witness for the prosecution. This legal construction of the more serious crime (murder) ‘‘swallowing’’ the less serious crime (rape) could have been acceptable if we were speaking of one and the same victim. However, in this case, the prosecution’s decision to have Yaakobowitz stand trial only on the murder charge symbolically turns Danny and Naomi into ‘‘one body’’ for the purposes of trial. One of the consequences of this legal decision is that Naomi is not entitled to separate legal representation at trial. As is known, in modern criminal law, the accuser is the State, represented by the general prosecutor, and the accused is represented by defense counsel. The state prosecutor speaks in the

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name of the injured public at-large and not in the name of the individual victim. Nevertheless, as we have seen, at the infancy of Israeli jurisprudence, the existence of the institution of the civil prosecutor alongside the criminal prosecution facilitates a separate representation for the victims. Naomi and Danny’s father, Adv. Mordechai Stein, is admitted as the civil prosecutor only in the name of his deceased murdered son but not in the name of his raped and living daughter. In this way, the trial contributes to the marginalization of Naomi’s victimhood.

5. CORROBORATING THE WOMAN’S TESTIMONY We saw that the decision not to indict Yaakobowitz for the crime of rape undermined the equal standing of the woman as a victim in the eyes of the law. Paradoxically, this decision also had an opposite effect, one that strengthens the standing of the woman in the trial. Viewing Naomi solely as victim of violence enables the Court to view the case as dealing with a crime of violence (instead of a sex crime) and thus reject prejudices about the woman that have been present throughout the history of rape trials. The decision to indict only on the murder gives the Court discretion to diverge from the accepted rules for rape trials to defend the woman’s dignity and to give her voice.27 Israeli jurisprudence inherited from mandatory law the common law rules of trial procedure, and amongst others, the legal doctrine that women’s testimony in sex crimes requires external corroboration28 (a requirement that was only revoked in Israel in the 1970s).29 The requirement of corroboration for the testimony of the rape victim is related to the prejudice perceiving women as inclined to tell lies and make false accusations in sex crimes (to protect their ‘‘honor’’).30 The decision to formally accuse Yaakobowitz only of murder raises the question whether to apply the corroboration requirement to Naomi’s testimony. The Court must decide whether to view the crime as a ‘‘sex crime’’ de facto, since the murder was perpetrated to commit the rape and as such to add the requirement of corroboration, or to eliminate the ‘‘corroboration’’ requirement since Yaakobowitz is not formally accused of a ‘‘sex crime.’’ As there was no conclusive independent corroboration to the woman’s testimony (no blood stains on Yaakobowitz’s clothes or other objective evidence tying him to the murder), the decision whether or not to disregard the requirement of corroboration was cardinal to the final result of the trial. The Court, for various reasons, decides to overcome the


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requirement of corroboration for the woman’s testimony and in this way strengthens Naomi’s standing as a credible prosecution witness. To summarize, the technical decision of the prosecutor in designing the indictment solely on a murder count, took on important meaning and symbolism regarding the woman. On one hand, it turned her into a witness for the prosecution that is to say, as instrumental to the trial and not as an end in herself. On the other hand, it allowed the young Court the liberty to free itself from the clenches of previous prejudices and stereotypes regarding women that it inherited from the British legal tradition and to present the woman as an independent and trustworthy witness.31 In retrospect, the courageous ruling of Justice Agranat in relation to the need of Israeli law to liberate itself from prejudices regarding women did not become part and parcel of Israeli legal education. Similar to the erasure of Naomi’s voice from the original complaint report, the first part of the ruling that deals extensively with the crime of rape did not enter the ‘‘reading lists’’ for criminal law classes. Instead, only the second part of Justice Agranat’s decision that discusses the requirement of mens rea needed for a murder conviction was understood as a central precedent in the teaching of criminal law. The ‘‘Yaakobowitz judgment’’ entered all reading lists for the introductory criminal law course, though the first part of the ruling was ignored – and with it, the fascinating deliberation on the standing of women in the law. My re-visiting the case attempts a correction, putting what was placed at the periphery of the law at the center of my inquiry. This reading is enabled by looking at the trial as performance, to go beyond the legal text of the judgment in order to recreate the way in which the law was experienced by the Israeli public at the time.

6. THE WOMAN IN THE PUBLIC SPHERE It should be said y explicitly that Naomi Stein, as a witness, impressed us greatly. She is a smart woman, with a memory above average and with scientific knowledge y she has the ability to think reasonably, considers her words carefully and makes great efforts to be precise. We were also impressed with the objectivity with which she gave her testimony. In spite of the bitter experiences suffered by her body and soul, it was clear to see that she was not exaggerating anything y our conclusions regarding the credibility of Naomi y are that she is deserving of our full trust and we believe her testimony. (C.A 125/50 Yaakobowitz v. Attorney General, 524–525)

This is how the District Court describes the testimony of Naomi, and later, this approach is adopted also by the Supreme Court. The Court attributes the credibility of Naomi to her having characteristics normally associated with

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men in Western culture – she is rational, scientific, objective, self-controlled, and precise. This is Naomi’s ticket of entry into the public sphere of the law – by way of negating characteristics traditionally associated with women, such as exaggeration, hysteria, uncontrollable emotions, and silence. The crime of rape is a crime of breaching or disrespecting boundaries. When a rape occurs in the public sphere, it is also a symbolic act of excluding women from the public sphere (the hostile) and sending them back to the private sphere (the safe). Naomi demanded to be on equal footing with men in the same urban space – the public park. The rape violently expelled her from it. The law is supposed to recreate the fences that were broken, to ensure that equality between men and women becomes a reality. The Court is called to ensure that one of the basic freedoms – the freedom of movement – also applies to women. At the same time, the trial is a public stage on which the Israeli public in general and the Tel Aviv public specifically were exposed to the dark secrets of Meir Park, instead of rumors of prohibited relations, of voyeurism, thefts, and attacks. While the trial as a legal text conveys the message of equal rights to women, the trial as event conveys the opposite message to women. The stories it conveys, the testimonies heard, work as a warning sign of what could happen to ‘‘good women’’ who have the audacity to demand the equal right to wander around parks at night. How does Naomi cope with this double message of containment and exclusion, of acceptance and labeling? She tries to recreate the boundaries, to establish distinctions, refusing to yield to prejudices and stereotypes. Naomi refuses to give the police details regarding the nature of her relationship with her half-brother who was murdered, and requests to focus on her rape complaint. She refuses to sign the complaint report until all hints of ‘‘improper relations’’ with her half-brother are erased. Refusing to cooperate with the police investigation was the only option of resistance she had in her condition (injured, bandaged, lacking the ability to speak). This is however a silent resistance. At this point, Naomi does not enjoy the power to tell her own story of the violent attack and the rape. The mark she leaves on the legal text is that of erasure. These erasures hint at the existence of a different story but do not relate it in full. Now, at trial, she requests to tell of the rape in her own words. However, to do so, she will have to withstand a harsh cross-examination. On cross-examination, the defense counsel reenacts the first attempt by the police to discover the ‘‘secret,’’ to hint at the forbidden relations and to ‘‘blame the victim.’’ The defense tries to present Naomi as one who will do everything to protect her honor, even to fabricate an unfounded charge of rape. Naomi refuses to surrender to the


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stereotypical script and attempts to represent herself as the ‘‘new Hebrew woman’’: independent, educated, and sexually free (but not a whore). This is how she replies to defense counsel’s cross-examination: I met Danny at Shenkin park, Rothschild Boulevard, and in Meir Park the last time. Before that, we had not visited Meir Park y Before that we had not jumped fences. Beforehand, I only visited Meir Park during the day. It was not necessarily in public parks that we met. Meir Park was one of the places in which it was possible to meet. We spoke also about social affairs. I study biology at university. Under the bushes, there is no reason not to talk about these matters y I met with other guys like this and we spoke of similar philosophical topics. Also under the bushes and also at eleven o’clock at night. If I want it, it doesn’t bother me if a guy kisses me, however, philosophical conversations would interfere in such a case y it all depends on the circumstances, the guys, and the desire to have a conversation. At a time of excitement it is difficult to talk about philosophical matters. I had experienced this kind of excitements with men y I did not know anyone sexually until the rape. After we jumped the fence, we first walked a little before we went to the bushes. Slowly we walked to the bushes. And we sat down. While we sat, neither of us lay down. We spoke about politics, family matters etc. Altogether I was in the park for three hours until the attack. (C.C. 1/50 Attorney General v. Yaakobowitz, Protokol 14.5.50, 96, emphasis added, L.B.)

Naomi views the parks of Tel Aviv as a public space open to women and men alike, a space in which one can enjoy philosophical conversations. She does not see a man and a woman alone in a park as necessarily implying sexual relations. The woman has a choice (sometimes sexual excitements, sometimes, philosophical conversations). The woman, from her perspective, is not confined to the private domain, and her actions in the public sphere cannot be understood solely in reference to her body or her clothes (removing her bra as an invitation to sex). Her character as rational, independent, and scientific, which makes her a credible witness in the eyes of the Court, becomes the focus of the defense counsel’s attack on Naomi’s credibility: I am convinced that she is not of strong character, and she has a certain education. Her education and her personality are the central riddle in this trial. The young woman does not believe in God. She opposed the War of Independence [the 1948 war] on principle grounds and avoided enlistment. If I were to state that she is a liar, she is not an ordinary liar. These lies stem from a personality that announces: to me everything is permitted: not to believe, not to enlist – I believe in the holy untruth. (Dunewitz, 2000, p. 73)32

Unable to detect contradictions, exaggerations, or conflicting evidence, the defense counsel attempts to base his defense precisely on the traits of the ‘‘new woman’’ held dear by Naomi in her self-representation. He emphasizes that Naomi chooses not to swear on the Bible, that she chooses not to enlist for political reasons, that she is an opinionated woman who

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decides for herself. In his closing remarks, these traits are evoked to tarnish her reputation and to present her as a unreliable woman. They are invoked to present her as someone who would not hesitate to lie to attain her goals.33 What is this overstepping of boundaries that Naomi is repeatedly accused of ? What is the threat she poses to the societal and legal order? To better understand the subversive nature of her testimony, I will turn briefly to the theoretical writings on the development of the modern city, the figure of the flaneur, and then I will connect it to the Zionist ideology prevalent at the time.

7. THE FLANEUR AND THE CITY Writings on modernity often deal with the reshaping of the public space (workplace, politics, and the urban space). The study of cities as a central aspect of modern life deals with the figure of the flaneur, or stroller. This character was presented in the poetry of Charles Baudelaire and explored in the works of Walter Benjamin, Virginia Woolf, and others. Benjamin views the flaneur, as one who is capable of giving a human face to the modern city. The flaneur feels at home in the street, and amongst the masses, he blurs the boundaries between the public and the private spheres and transforms the street into a hybrid domain between inside and outside: ‘‘The street becomes a dwelling for the flaneur; he is as much at home amongst the facades of houses as a citizen is in his four walls’’ (Benjamin, 1997, p. 37). The modern legal response to the stroller is ambivalence. On one hand, he embodies the modern ideal of freedom of movement. On the other hand, his aimless wandering remains suspicious in the eyes of the law that is obligated to a modern rationality of purpose. This can explain why modern law codes, including in England, Israel, and the United States, still include the archaic offense of loitering.34 Feminist writers criticize the literary ideal of the flaneur as expressing a figure with male characteristics. They argue that in modern society, it is much more difficult to accept the female ‘‘flaneuse’’ (Wolff, 1990, pp. 34–50; Pollock, 1988; Wilson, 1992b, pp. 99–110). When a woman wanders the streets, she exposes herself to dangers, she is expected to give an explanation regarding the purpose of her walk. In other words, the same aimless wandering, when done by a woman, is viewed as suspicious, indicating sexual deviance. Indeed, the term ‘‘streetwalker’’ when applied to women is synonymous with prostitution. Women were long prevented from


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participating in the same modern practice of wandering aimlessly in the big city. George Sand – who adopts the character of the flaneur for herself, can do so only disguised as a man. Virginia Woolf, in writing on the right to wander, is aware of the fact that strolling in and of itself is not available to women, her walk in the public sphere must be with a specified goal. Walking on foot, on the sidewalks, carefree walking alone, lacking any specific goal, just to see and be seen, when translated to the feminine, immediately bring to mind the figure of the prostitute. The loitering woman is considered sexually permissive, and looking for men.35 These are precisely the types of insinuations that Naomi needs to cope with in the trial (beginning with the police representative and followed by the defense counsel). She walked in parks with her half-brother late at night. She took off her bra and undershirt. She is suspected, therefore, of crossing the most serious societal taboo of all, incest. Naomi fights for her right ‘‘not to explain’’ or ‘‘not to apologize’’ – she is fighting for public recognition of freedom of movement for women, for her ability to wander the streets and parks of Tel Aviv, at night, without being labeled as a ‘‘bad woman.’’ Naomi presents herself in her testimony as a modern city stroller. The verb recurring in her description of her meetings with her half-brother in the month previous to the rape is of ‘‘walking’’ or ‘‘going.’’ In response to the question of what was the purpose of her walk, she says ‘‘We went for a walk without any particular purpose.’’ She refuses to address ‘‘purposes’’ or ‘‘aims’’ of her wanderings and requests of the law to recognize that the wandering of a woman, in the streets, in the parks, between the bushes, at night, with a man, should not necessarily translate to a love affair. It can be a platform for philosophical and social conversation. She requests of the law to respect the choices of the woman and to defend her freedom to do so. Yaakobowitz places the Israeli Court at the beginning of a challenging road to protect the freedom of movement of the citizen. However, Naomi (and Danny) are not the only wanderers in the affair. In effect, we encounter two ‘‘types’’ of wanderers in the Meir Park affair. The first type is illustrated by the wanderings of Danny and Naomi. They wander the streets of Tel Aviv for the three weeks before the murder and rape. Their wanderings lack any specified purpose, they are walking and talking, looking for private corners in public parks and in the streets. They have no private sphere of their own, so the city of Tel Aviv provides them this space. They speak of lofty and worldly topics – philosophy and politics – but also of personal and family matters. Zionism as a modern movement was obligated to the modern values of equality, progress, and rationality. It encourages ‘‘wandering’’ in nature and

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in the Israeli vistas, though it is ambivalent about wandering in the big city (Troen, 1991, pp. 10–36; Katz, 1986, pp. 402–424). The ‘‘new Jew’’ is supposed to be one who leaves the city to return to nature, connecting the Jew to the land, by farming and by way of walking the paths of the country.36 It is possible that the urban wandering in parks serves as a sort of compromise between the conflicting forces at work in the Zionist ethos. Tel Aviv as the city of gardens was often idealized as in the poem by the Tel Avivian poet Nathan Alterman ‘‘Meir Park In Tel Aviv’’37: If we are lucky and the passing time/Will not suddenly tell us: stop/We shall walk, my friend/On the paths of Meir Park/Leaning on poles, in the evening/We will walk between green trees/As the sparrows of Tel Aviv fly by y /Above us wave the trees/illuminated by the twilight./We knew them as plants /and now their heads touch the sky And the old young city y Rise, like a raging park,/And there is no power that can uproot it. (Alterman, 1972, p. 395 My translation, L.B.)

Meir Park is presented in the poem as a tranquil and harmonious area, full of safe places to walk and reminisce. Not a place of forbidden desires, sins, and crimes related to the modern metropolis.38 The park is a metaphor for the city. The rape and murder forces the Court to contend with the dark side of the park, with loitering as leading to crimes and misdemeanors. This type of wandering is perceived as a threat to law and social order. The affair exposes the court to this suspect wandering, the kind associated with the accused David Yaakobowitz. At first glance, it appears that Yaakobowitz represents a mirror image of the wandering figures presented by Naomi and her brother. The central verbs in his testimony is also ‘‘walking’’ and ‘‘going.’’ He too claims that his wandering on the day of the crime lacked any specific purpose (‘‘To Natanya I drove with no purpose’’). He too walked on the very same streets on which Naomi and Danny strolled. Like Naomi, so too the accused was dressed in the clothes of the ‘‘Sabra’’ – khaki pants and shirt. However, the loitering of Yaakobowitz was suspicious in the eyes of the law, of a perverted character, bordering on the criminal. He represents a threat to law and order. Yaakobowitz is a new immigrant, wandering the land aimlessly, lacking permanent work, he speculates on commodities, and works in temporary jobs. He wanders the streets of Tel Aviv idly, sits in the coffee houses, drinks, and plays cards. At night, he wanders the parks. He wanders in the shadows of lovers. A Peeping Tom, as it turned out, he steals from wallets pictures of women, which he collects as a modern street-hunter, and hangs in his room. The wandering figure of Yaakobowitz raises on one hand the image of the urban flaneur as sketched by Benjamin,39 but stands in


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conflict with the Zionist ideal that values work, industry, and wandering as a symbolic conquering of the land. In the Yaakobowitz case, the two types of wandering collide and reveal the different faces of Meir Park, and more generally, the two faces of Tel Aviv. On one hand, Tel Aviv as the realization of the Hebrew dream – a green and tranquil urban space. On the other, Tel Aviv as a developing metropolis, a place of sexual promiscuity and crime. The two types of wanderings also reveal a cultural clash that becomes apparent in the trial: between the figure of Danny, the Sabra, a man of the leftist youth movement (HaShomer HaTzair), and of the kibbutz communal settlements. His companion is the new Hebrew woman (educated, independent, opinionated). And on the opposite side stands David Yaakobowitz, a Sephardi immigrant, sitting in coffee houses, a card player, and a voyeur. Being an immigrant and vagrant undermines the credibility of Yaakobowitz’s defense in the trial. We have seen that it was not possible to find corroborating evidence tying Yaakobowitz to the murder. He attempted to distance himself from the scene of the crime by falsely claiming that he spent that same day on an army base.40 However, at trial, it turned out that he spent that whole day at a coffee house in Tel Aviv. If we take into account the existence in the Israeli law book of the offense of loitering together with the fact that Yaakobowitz was an imposter, ‘‘passing’’ as a Jew, it is not hard to imagine why Yaakobowitz wanted to avoid the police. However, the Court is unable to connect Yaakobowitz’s lies to the fragile existence of the flaneur at the margins of the law,41 rather it perceives his false alibi as evidence of his involvement in the serious crime of which he is accused. Walter Benjamin is well aware of the ambivalence of modern society to the figure of the flaneur. He writes, ‘‘No matter what trail the flaneur may follow, every one of them will lead him to a crime’’ (Benjamin, 1997, p. 41).42 While every path leads him to a crime, does it lead him as a criminal or as detective? Benjamin notes that the literary fascination with the figure of the urban vagrant grows parallel to the rise of the literary genre of detective stories (Benjamin, 1989, pp. 37–38). ‘‘If the flaneur is thus turned into an unwilling detective, it does him a lot of good socially, for it accredits his idleness. He only seems to be indolent, for behind this indolence there is the watchfulness of an observer who does not take his eyes off a miscreant’’ (Benjamin, 1997, pp. 40–41). 43 The figure of the ‘‘detective’’, found throughout the literature on the vagrant, provides ex post facto a purpose to his loitering and as such inserts the vagrant into the new social order as one who has an important contribution to make – he defends society from anonymous crimes occurring under cover of the masses. However, the

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proximity of the vagrant to the crime preserves the ambivalence toward him – he is the first to detect crimes, though at the same time, he is the first to be suspected of committing them. The double (and contradictory) characterization of the vagrant as criminal/ detective haunts Yaakobowitz. His main defense was that he happened to walk near Meir Park late at night, and heard the moans of Naomi. The voice of the woman drew him to the crime, and he entered the park. He responded to Naomi’s plea to call for help. Only instead of calling for an ambulance, he had to call the police. Here, the problem is exposed. The idler is ambivalent toward to police, he is always under suspicion by them. Yaakobowitz hastens to say that he ‘‘has no business with the police.’’ He denies any involvement in the crime. However, the vagrant is also the prime suspect (the harder it is to identify a person, the more suspicious he becomes). As such, in spite of the fact that others could not identify Yaakobowitz (like all vagrants he is swallowed by the masses), later, the suspicion of the police is focused on him. From detective and savior he turns into the primary suspect. His alibi is baseless and Naomi’s testimony is found credible. According to Naomi’s version, it was Yaakobowitz who attacked Danny, raped her, went to bring her a robe to cover her naked body, and later returned and brought the police. This is the version that the District Court believes and as a result Yaakobowitz is convicted of murder and sentenced to the most serious punishment of all – the death penalty. The Yaakobowitz case forces the Israeli pubic and the Court to cope with a threatening duplicity – the value that Zionism attributes to wandering the land and to freedom of movement as part of the formation of the ‘‘new Jew,’’ while at the same time, there is the societal threat posed by those who in the name of ‘‘free movement’’ turn vagrancy into a way of life. The legal result, therefore, is ambivalent. The court preserves the right to loiter in relation to the first type of city stroller (the Zionist flaneur) and is prepared to expand its protection to women flaneuses. At the same time, however, the judgment contributes to the condemnation and suspicion of the ‘‘new immigrant’’ depicted as lazy and lawless. His very loitering is deemed suspicious by the Court and is turned against him.44 The confrontation of the young Israeli law with the two types of flaneur allows us to shed new light on Yaakobowitz as it is remembered by the legal profession and taught in the law schools. As I noted, the Yaakobowitz case is taught in relation to the second part of Justice Agranat’s ruling – the analytic section articulating the mens rea requirement for the crime of murder. Now, in light of our discussion of the threat to the law posed by the


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figure of the vagrant, we are able to offer an alternative explanation for the Court’s decision. Justice Agrant’s analysis attributes purposes and intentions to the various crimes inherited from English criminal law. This project is presented by him as part of a progressive reform of the archaic common law tradition. Thus, the Israeli Court depicts itself as taking part in a modern order that distributes blame according to the subjective intentions of the criminal. Intentions, aims, and purposes are to become the central focus of legal investigation. The legal subject is assumed to be a person whose actions are the result of prior intentions and well-formulated ‘‘purposes.’’ The figure of the vagrant, the loiterer, the wanderer undermines this picture of human nature. It thus challenges the self-conception of the Court as liberal and progressive. In the confrontation with the vagrant, the Court enacts the role of the guardian of the boundary between the private and the public. It claims to protect the freedoms of the individual by adding the demand of proving subjective intention as precondition for conviction. Indeed, Justice Agranat’s breakthrough interpretation of the criminal code, adding a requirement of ‘‘intention’’ to murder, leads to the acquittal of Yaakobowitz from the murder charge and to replacing the death penalty with imprisonment. However, our cultural reading of the social context of the case reveals the inability of the law to rid itself from a tendency to criminalize the vagrant and to assure legal protection of the freedom of movement for people who live on the margins of society. The judgment fails to take notice of the existence of the vagrant at the margins of law and reads his lies against him. Only by looking at the trial as performance of both individual and social identities we discover how much class conflict and cultural clashes have shaped the Court’s decision. And what happened to Yaakobowitz after he served his sentence (10 years in prison after reduction of one-third for good behavior)? Dunewitz sarcastically comments: ‘‘Will he begin to work in agriculture? No way. Yaakobowitz is unemployed, and he continues to wander the streets at night, in the parks, and it appears also in the apartments of others. The police have an open file on him and are looking for him’’ (Dunewitz, 2000, pp. 92–93). On February 11, 1960, he is arrested on suspicion of vagrancy and break-ins. He is acquitted for lack of proof beyond reasonable doubt. The judge adds a warning to the police that they must be cautious in accusing someone of vagrancy lest they seriously undermine the freedom of the individual. Later on, Yaakobowitz is caught loitering in another park and is put on trial accused of breaking into a house. This time he is convicted (Dunewitz, 2000, pp. 92–93).

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8. CONCLUSION: THE YAAKOBOWITZ TRIAL AS A THEATER OF BOUNDARIES The Yaakobowitz trial is taught in Israeli law schools as an important precedent for articulating the mental requirement (mens rea) in the crime of murder. This reading focuses on the second part of Justice Agranat’s ruling. In contrast, in its own times, the Meir Park affair was remembered as the brutal rape and murder of a half sister and brother. These were the topics covered by the newspapers of the period. In revisiting the trial, I attempted to return to this memory and locate the legal process within the wider social context by looking at the trial as performance of identities. This reading reveals the steadfast struggle throughout the Yaakobowitz trial between the logic of law requiring transparency and light, distinctions and boundaries, and the logic of the park, a space of desire and freedom dependent on secrecy, darkness, and concealment. The conflict between the two forces did not remain outside the trial but was reenacted time and again on the stage of the Court. The trial as performance reveals the desire of the law to penetrate the murky regions: the dark paths of the park, the privacy of family relations and the mental world of the vagrant. Against the desire to discover the ‘‘whole truth,’’ Naomi, the victim of rape, and the central prosecution witness, erects a symbolic barrier with her words. By refusing to answer the doctor and the police investigators on certain issues, she tries to mark the line between what is relevant to the law (identifying the guilty) versus what should remain beyond the law (family relations, the discourse of lovers, etc.) The Yaakobowitz trial reveals that the law is not only endangered by external force. It is immanent, stemming from the desire of the law to overstep its boundaries and impose its logic on the whole social domain. It is also a result of the malleability of the law to the strong forces of family, emotion, and body. The Yaakobowitz trial demonstrates the difficulty of insulating the law from these forces, in particular when the death sentence is hovering over the trial. Paradoxically, the power of law is understood to lie in its limitations. This was the lesson that was painfully learned by the public after three public failures and was first articulated by the judgment of Justice Agranat from the Supreme Court. Reading the trial as performance allows us to revisit the Supreme Court decision and read it, as taking part in the formation of the Court’s own identity as a guardian of boundaries and fences. This identity is constructed in opposition to the figure of the city stroller or drifter, the flaneur enacted by both the victim and the accused.


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In the first year of the State of Israel, the Court was called to cope with questions of self-identity in relation to the British colonial heritage.45 How should the public understand ‘‘due process’’ requirements – a foreign colonial heritage, or self-imposed constraints reflecting democratic government and liberal values? The heart of the debate between Supreme Court Justices Agranat and Zilberg was formed by this question. Justice Agranat tried to absorb the British legal tradition into Israeli jurisprudence while giving it a liberal and progressive interpretation. His colleague, Justice Zilberg, chose to emphasize the need to disengage from British law as part of the wider vision of national independence. Jurists educated in the lap of the common law heritage were prone to accept the English rules of procedure and due process as a matter of course. However, for the general public of the time, this acceptance was not self-evident. The Yaakobowitz trial became the stage on which the Israeli public watched the fierce struggle between the desire to overcome the limitation of law and its destructive results. Each failure in the legal process brought the Israeli public closer to understanding the limitations of criminal procedure and the rules of due process as constitutive of the rule of law. The voice of Naomi, the survivor, who asked to preserve the line between the private and the public – a voice that was heard at the beginning of the trial as evasive, lying, and manipulative – was transformed in the Supreme Court ruling into the voice of law. However the Court’s attempt to stake out a ‘‘golden middle,’’ between the limitations of the rule of law and the public need to restore security to the parks, undermined the credibility of its judgment. Instead of showing unyielding commitment to due process and the rights of the accused, the Court chose a compromise. It turned murder into manslaughter. The sentence thus undermined the function of the trial as ‘‘didactic performance’’ of the rule of law. It left confusion in the hearts of the audience who came to Jerusalem to watch justice being done, as reported by the weekly ‘‘Ha-Olam Ha-Ze’’: The magic that the Supreme Court conducted during the three hours when it changed the murder clause, did not convince most young and veteran lawyers who came from across the country to learn the law y some of those present are unable to release themselves from the feeling that the court worked hard to find the golden middle between two extreme options: Hanging David Yaakobowitz or releasing him y one of the lawyers shook his head upon exiting the court: ‘‘In England they would have let Yaakobowitz benefit from the great doubt surrounding his guilt. However, here we think first and foremost of the public good: Sex crimes that flourished for a time in the parks of Tel Aviv have almost completely stopped after the death sentence.’’ (Ha-Olam Ha-ze June 19, 1952)

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NOTES 1. For reasons of privacy, I choose to omit the victim’s full name and refer to her by her first name Naomi. At the time of the trial, this protection was not given. I am aware that in doing so, I participate in the problematic practice of using women first name; however, I think that by doing this ex-post, I better respect the line that Naomi attempted to draw during the time of the trial. 2. The preliminary investigation in those years was conducted according to the Criminal Procedure Ordinance (trial by way of indictment) Laws of Israel vol. 1, ch. 36, clauses 13–27, pg. 446. 3. Judge Eliezer Malachi began his tenure as a Magistrate Court Judge during the period of the British Mandate and after the creation of the State was appointed judge in Tel Aviv District Court. In the mid-1960s, he was involved in suspicions of receiving bribes and was put on trial in 1966 and was found innocent but resigned from his post. 4. Adv. Yitzhak Ben-Yemini, a former member of the Etzel, a pre-state Jewish Underground, volunteered to defend Yaakobowitz pro bono. He was an experienced attorney, aggressive and brilliant in the field of criminal law, who often clashed with judges. Ben-Yemini submitted an appeal in Yaakobowitz’s name to the Supreme Court on both verdict and imposition of the Death Penalty but did not manage to represent him in the appeal as he passed away in March 1951. See (Dunewitz 2000, pp. 37, 83). 5. The press coverage of the time tells us that the trial was accompanied by an atmosphere of public hysteria about the growth of sex crimes in Tel Aviv. See, for example, August 28, 1949 ‘‘Letters to the Editor’’ of Haaretz (in Hebrew); Aug 31, 1949 ‘‘La-Isha’’ (in Hebrew). 6. In fact, the District Court ends its ruling mentioning the fact that Yaakobowitz, to his detriment, ‘‘ran into a brother and sister, and not a pair of lovers.’’ This sentence can be read as a sigh of relief from the court regarding the suspicion of forbidden relations. The dubious explanation of Yaakobowitz’s actions that night resulted from another deviation from the rules of due process, accepting the testimony of Officer Shimon Behar on a similar incident he experienced in Meir Park where he was attacked while embracing his girlfriend. However, Behar’s testimony should not have been admitted since he never positively identified the accused. Justice Agranat cautions against such deviations brought about by the desire to tell the full story and relying on inadmissible evidence (C.A 125/50 Yaakobowitz v. Attorney General, 537–538). ‘‘The affair of the testimony of Shimon Behar exemplifies what we described in the first part of our judgment, as an attempt by the Court to make a full reconstruction of the story of the event – an attempt that did not turn out well as its foundations are in inadmissible testimony.’’ 7. See Note 2. 8. Admitting a civil prosecutor was to avoid conducting a separate civil proceeding at the end of the criminal proceeding and to concentrate all the proceedings resulting from one set of facts to one legal proceeding. This procedure remained in existence (at least in the book of laws) until the entry into force of the 1965 Criminal Procedure Law, Laws of Israel, 458, p. 161.


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9. During the State Prosecutor’s cross-examination, Yaakobowitz was questioned regarding these matters but denied them. He also attempted to emphasize his Jewish identity by pointing to his participation in Jewish customs and rituals. 10. The Death Penalty was abolished in February 1954 according to the Law to Amend the Criminal Law (Cancellation of the Death Penalty for Murder) 1954. The amended law does not apply to crimes covered by Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, 4 L.S.I 154 and certain other crimes such as treason. During the Knesset deliberations over the abolishment of the death sentence, name of David Yaakobowitz was mentioned in connection to the danger of false convictions. 11. Later, the Death Penalty was employed only in connection to crimes related to the Holocaust. At first, it was used against Jews accused of cooperating with the Nazis according to Nazis and Nazi Collaborators (Punishment) Law, 5710-1950. See, C. C 9/51 Attorney General v. Ingster, 5 PM, 152 [death sentence]; For example, C. A. 5/52 Ingster v. Attorney General (unpublished) [sentence reversed]; Later the law was invoked against Nazi perpetrators. C. C 40/61 Attorney General v. Eichmann, 45 P.M. p. 3; C. A. 336/61 Eichmann v. Attorney General, 16 P.D., 2033; C. C. 373/86 Attorney General vs. Ivan (Johan) Demanjuk 3 P.M., p. 1 ; C. A. 347/ 88 Ivan (Johan) Demanjuk v. Attorney General 47(4) P.D. p. 221. 12. Protocol version: ‘‘I regret that a permission was granted to this lawyer to say what was said y as the father of the murdered y I request to erase everything he said y otherwise, racial discrimination y’’ (trial protocol 11.10.1950). 13. For elaboration on the gap between myth and reality in the early days of Tel Aviv see Bilsky and Verbin (2003) and Berenstein (2004, pp. 143–162). 14. In fact, Yaakobowitz’s conviction was built on two components – the belief in the testimony of Naomi and the baseless alibi of the accused. 15. It might very well be that ignoring the issue of ‘‘passing’’ in Yaakobowitz’s life did not allow the court to fully grasp the context that could shed light on many of the actions of the accused. This was a man whose daily life was a lie and risks being exposed at any moment. Moreover, he was a vagrant lacking stable job. This fear of exposure can explain his attempt to avoid the police and to give a fictitious alibi. The lie regarding his identity turns into a daily issue of survival, and therefore, it is difficult to give his fictitious alibi the same weight that the baseless alibi of another person would receive. 16. Miranda v. Arizona, 384 U.S. 436. 17. The court’s protocol provides a ‘‘cleaner’’ version of this exchange: ‘‘The court in addressing Mr. Ben-Yemini: There is no need to respond. Mr. Ben-Yemini, in spite of this explicit remark, answers loudly: The court did not have to permit Mr. Stein to speak y the trial is being unfairly conducted. (protocol October 11, 1950) 18. According to the media, Yaakobowitz wept often, and there were times when he was unruly. See the weekly ‘‘Ha-Olam Ha-Ze’’ ‘‘A One Lira Fine’’ (in Hebrew) Edition 683, Nov. 28, 1950 and ‘‘Ha-Aretz’’ September 20, 1949. 19. On the relation between the dictates of the body and its undermining the integrity of the public sphere, see Arendt (1958, pp. 175–247) and Arendt (1973a). 20. For a discussion of the story in the context of vagrant women, see Mueller (2002, pp. 30–49, 31–32). 21. Gan Meir (the Meir Park), named after the first Mayor of Tel Aviv, was inaugurated on March 10, 1944, the birth date of Dizengoff and eight years after his

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death. The delays in opening the Park have made Dizengoff write on 2 August 1936 a letter of protest to the municipality in which he demanded that his name be revoked. See Moria and Barnir (2003). 22. Naomi testifies on the investigation of Officer Katznelbogen as follows: ‘‘I was not interested in having him question me on matters unrelated to apprehending the accused. In my opinion, amongst his questions were things unrelated to the matter, for example: What happened between myself and Danny. To all the questions that were not relevant, for example questions regarding my family, I said that if there is a need to do so, I will answer in court.’’ (Testimony of Naomi, District Court Protocol Sessions, supra, note 2, (May 17, 1950), p. 101). 23. Notice that women’s right to vote and be elected to the Knesset (Israeli Parliament) was preceded by a struggle by women’s organizations during the time of the Yishuv (pre-State Jewish settlement in Palestine). 24. Women’s Equal Rights Law, 5711-1951, 5 L.S.I, p. 171 clause 1: ‘‘One law will apply for woman and man for all legal actions.’’ 25. Yaakobowitz was accused of murder according to Clause 214 (c) of the Criminal Law Ordinance 1936, Palestine Gazette Extraordinary no. 652, p. 285. ‘‘Any person who willfully causes the death of any person in preparing for or to facilitate the commission of an offence.’’ 26. The crime of rape in English law was originated as a property crime, not to protect the woman herself, but only the woman as the property of the man (Brownmiller, 1993). 27. It turns out that it is precisely her role as a ‘‘prosecution’s witness’’ instead of the formal victim of the crime that allowed the court the discretion to disregard discriminating procedure and thus to protect her from experiencing a ‘‘second rape’’ during the trial. 28. For the requirement of corroboration in sex offences, see Sebba (1968, p. 67). 29. Clause 54 A (b) of the Evidence Ordinance (New Version), 1971, (1991 amendment) Laws of Israel 1057 at p. 197. 30. The Supreme Court quotes British law on the subject: ‘‘It is known that in trials dealing with sexual offences we view the complainant, the victim of the crime, as a person who is suspicious of the oath and therefore her testimony cannot be trusted, unless it is supported by further, independent evidence. The reason for this: we presume that the complainant, first and foremost aims to defend her honor, it is upon the law therefore to use extra caution regarding her testimony and not to view it as truth, unless there is external corroborating proof ’’ (C.A 125/50 Yaakobowitz v. Attorney General, 542). 31. Justice Agranat notes in this matter: ‘‘We shall not assume in advance that the woman that the perpetrator raped, or is said to have raped, will not be a credible witness – due to the fact that, in order to defend her honor would go as far as to render false accusations on the accused, with full knowledge that her testimony is capable of leading to his being found guilty of murder and the imposition of the death penalty against him’’ (C.A 125/50 Yaakobowitz v. Attorney General 543). 32. A slightly different version is found in the Protocol. ‘‘The young woman y she is not like other young women, but one with a certain character and a certain education. She does not believe in God, on principle. I will prove that she is a liar by nature. As if for her, all is permitted. Here too, on principle, she was not ashamed to tell certain lies’’ – Defendant’s closing brief (protocol, October 22, 1950, 164).


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33. Defense counsel ascribes to Naomi demonic qualities of an ‘‘evil woman’’ who drags with her the helpless man: ‘‘Danny suffered from a certain sickness. Once he lost his ability to speak. And here on this fateful day she brought him to the place. Danny did not try to open the gate that was closed. She was there beforehand during the day. I think that Danny did not know this. She wanted to enter the park by jumping y wanted to be alone with him in a hidden place y She is a complicated personality. She thinks y’’ (Defendant’s closing brief (protocol, October 22, 1950, 164). 34. These are the ‘‘loitering’’ and ‘‘vagrancy’’ laws. They stand in sharp contrast to basic principles of modern criminal law – of punishing conduct and not ‘‘status’’; of punishing action and not ‘‘inaction,’’ and so on. For a critical discussion of their origins and their function, see Sherry (1960, p. 557), Robinson (1962, p. 102, Note on Gary V. Dubin), Stephen (1964, pp. 266–275), and Poulos (1995, p. 379). 35. ‘‘Aimless strolling, ‘Street Walking’ per se, still conjures up connotations of prostitutions, although it fits the definition of flanerie precisely’’ (Mouton, 2001, p. 8). In the law, this association is even more apparent. Thus, for example, one of the criminalized figures under the vagrancy laws of the common law (in England, under British Palestine, and in United States) is the ‘‘common prostitute’’ as defined in article 193(a) of the 1936 Criminal Code Ordinance in Palestine – ‘‘Any person who - being a common prostitute, behaves in a disorderly or indecent manner in any public place.’’ 36. Nature trips were a central element of youth movement activities in those days. Researches have traced the origins of this activity to German youth movements. Walter Laqueur, Young Germany – A History of the German Youth Movement (New Brunswick and London, 1984). 37. On ‘‘urban parks’’ generally and its implementation in the land of Israel, see Katz (1994, pp. 467–473). 38. Contrast this idealization to the article of Debra Bernstein (2004) (discussing the fate of ‘‘wandering’’ women immigrants who faced conditions of social isolation, poverty, and even prostitution). 39. Benjamin (1997, p. 54). 40. On the same day in the afternoon I travelled out of the city. I left Tel Aviv near ‘‘BeitHadar’’ there is a bus stop for soldiers. I drove in the direction of Beit-Lid [an army camp, L.B.] in order to meet a few soldiers I know, make business y I drove in a truck with other soldiers. I got to Beit-Lid square, on the crossroad between Natanya, Haifa y I turned to the cafe´ there. I sat there a few moments y then returned to Beit-Lid. From there I drove to ‘‘Base 21’’ y there I looked for my contact from whom I buy things y I met him in a building opposite the office building, I don’t know what is there now. It was written ‘‘cantina’’ [canteen] there in Latin letters y I returned to Beit-Lid. I wandered around Beit Lid, beside the new immigrants camp. I returned to the road beside the cafe in Bei-Lid. From there I hitched a ride with a truck driving in the direction of Tel Aviv y I stayed in Even-Yehuda until about midnight y At midnight a military taxi passed by, not a pickup truck. I entered the taxi with two other soldiers. It was about half past midnight. We drove in the direction of Tel Aviv y from there we drove to Tel Aviv by Jabotinsky Street. We got to Dizengoff Street y the officer stopped the taxi and signaled

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LEORA BILSKY to us that we could get out. We got off y and I continued to walk on Dizengoff Street. (Protocol, May 25, 1950, 115)

41. Mandatory criminal law stated in clause 193 (e) of the Criminal Law Ordinance 1936 that whoever is found loitering with the intention of committing an illegal or unruly act will be convicted of vagrancy. The historical roots of this crime are found in the Vagrancy Act 1824 that relates to ‘‘known types of vagrants.’’ 42. See also McDonough (2002, pp. 101–122). 43. See also Arendt (1973b). 44. During arguments on the sentence, the state prosecutor noted that Yaakobowitz had committed two previous vagrancy offences. See Dunewitz (2000, p. 89). 45. On the question of continuation and break with British mandatory law and Ottoman law, see Likhovski (2006, pp. 127–153).

ACKNOWLEDGMENTS I thank my research assistants, Michal Saliternik, who helped in the beginning stages, and Rivka Brot, who helped throughout to bring this research to completion. Many friends and colleagues read earlier drafts, commented, and taught me a great deal. Special thanks go to Vered Lev Kenaan, Pnina Lahav, Assaf Likhovski, Dlila Amir, Menachem Amir, and Analu Verbin. I also thank Austin Sarat who sent me on this road to better understand the role of trials. The research was made possible by a grant from the Cegla Center in Tel Aviv University and a research grant from Amherst College.

REFERENCES Alterman, N. (1972). Vol. 2 Ha-Tur Ha-Shevii (Writings in Four Volumes, The Seventh Column, 1961–1963) (in Hebrew). Tel Aviv: Ha-Kibutz Ha-Meuhad. Arendt, H. (1958). The human condition. Chicago: University of Chicago Press. Arendt, H. (1973). On revolution. Harmondsworth, Middlesex: Penguin Books. Arendt, H. (Ed.) (1973b). Walter Benjamin, illuminations, (translated by Harry Zohn) Fontana: Collins: London. Benjamin, W. (1989). The flaneur. In: Baudelaire, Paris of the Second Empire for Baudelaire (Translation from German by David Eren, pp. 37–38). Benjamin, W. (1997). Charles Baudelaire: A lyric poet in the era of high capitalism (p. 37). (translated by Harry Zohn). London: Verso. Berenstein, D. (2004). Tel Aviv wore a cleavage: Crazy Pnina and the limits of the city (in Hebrew). Teoria U-Bikoret, 25, 143–162.


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Bilsky, L., & Verbin, A. (2003). Rotstein’s business: Nahum Gutman, local mythology and the first attempted rape in Tel Aviv (in Hebrew). Iyunei Mishpat, 26, 391. Brison, S. J. (1997). Outliving oneself: Trauma, memory, and personal identity. In: D. Tietjens Meyers (Ed.), Feminists rethink the self (pp. 12–39). Boulder, CO: Westview Press. Brownmiller, S. (1993). Against our will: Men, women and rape. New York: Fawcett Columbine. Butler, J. (2002). Antigone’s claim: Kinship between life and death. New York: Columbia University Press. Calvino, I. (1979). Invisible cities. (translated from the Italian by William Weaver). London: Pan Books. Dunewitz, N. (2000). The accused: Dramas from the Court (in Hebrew) (pp. 26–94) Tel Aviv: Zemora Bitan. Estrich, S. (1987). Real rape. Cambridge, MA: Harvard University Press. Gross, A. (2001). Beyond black and white: Cultural approaches to race and slavery. Columbia Law Review, 101, 640. Katz, Y. (1986). Ideology and urban development: Zionism and the origin of Tel Aviv 1906–1914. Journal of Historical Geography, 12, 402–424. Katz, Y. (1994). The extension of Ebenezer Howard’s ideas on urbanization outside the British Isles: The example of Palestine. Geojournal, 34, 467–473. LeVine, M. (2005). Overthrowing geography: Jaffa, Tel Aviv and the struggle for Palestine 1180–1948. Berkeley, CA: University of California Press. Likhovski, A. (2006). Law and identity in mandate Palestine (pp. 127–153). Chapel Hill, NC: University of North Carolina Press. Mann B. E. (2006). A place in history: Modernism, Tel Aviv, and the creation of Jewish urban space (Stanford University Press). McDonough, T. (2002). The crimes of the flaneur, October, 102, 101–122. Moria, Y. & Barnir, S. (2003). The public sphere: An exhibition in honor of Tel Aviv Gardner, Avraham Karavan, Tel Aviv Museum (in Hebrew). Mouton, J. (2001). From feminine Masquerade to Flaneuse: Agnes Varda’s Cleo in the city. Cinema Journal, 40(2), 3–16. Mueller, R. (2002). The city and its other. Discourse, 24, 30–49. Pollock, G. (1988). Vision and difference, femininity, feminism and the history of art. London: Routledge. Poulos, P. W. (1995). Chicago’s ban on gang loitering: Making sense of vagueness and overbreadth in loitering laws, California. Law Review, 83, 379. Robinson, R. H. (1962). The vagrancy concept, reconsidered: Problems and abuses of status criminality. Yeshiva University Law Review, 37, 102. [Note on Gary V. Dubin]. Sebba, L. (1968). The requirement of corroboration in sex offences. Israel Law Review, 3, 67–87. Sherry, A. H. (1960). Vagrants, rogues and vagabonds – old concepts in need of revision. California Law Review, 48, 557. Schlor, J. (1999). Tel Aviv: From dream to city Translated by Helen Atkins (London: Reaktion Books). Stephen, J. F. (1964). A History of the Criminal Law of England (Vol. 3). New York: B. Franklin. Troen, I. (1991). Establishing a Zionist metropolis: Alternative approaches to building Tel Aviv. Journal of Urban History, 18(1), 10–36. Wilson, E. (1992). The sphinx in the city: Urban life, the control of disorder and women. Berkeley, CA: University of California Press/.

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Wilson, E. (1992). The invisible flaneur. New Left Review, 191(1), 99–110. Wolff, J. (1990). The invisible flaneuse: Women and the literature of modernity. In: Feminine sentences, essays on women and culture (pp. 34–50). Cambridge: Polity Press.

CASE CITED C. A. 125/50 Yaakobowitz v. Attorney General 6 P.D., 514. C. C. 1/50 Attorney General v. Yaakobowitz [not published]. C. C 9/51 Attorney General v. Ingster, 5 P.M., 152. C. A. 5/52 Ingster v. Attorney General (unpublished). C. C 40/61 Attorney General v. Eichman, 45 P.M., 3. C. A. 336/61 Eichman v. Attorney General, 16 P.D., 2033. C. C. 373/86 Attorney General v. Ivan (Johan) Demanjuk, 3 P.M. 1. C. A. 347/88 Ivan (Johan) Demanjuk v. Attorney General. Miranda v. Arizona, 384 U.S. 436.

A TRIAL IN THE LIFE OF THE ENVIRONMENTAL JUSTICE MOVEMENT: USA V. CITGO Anna-Maria Marshall INTRODUCTION Trials provide social movements with a public arena that can advance social movement goals. The adversarial structure of a trial gives social movements an opportunity to articulate their grievances and to subject their opponents to cross-examination. The drama associated with trials often attracts media attention, thus creating a broad audience for the movement’s message. Moreover, trials can sometimes provide opportunities for collective experiences, bringing together activists, lawyers, experts, and other actors whose combined efforts can both strengthen the movement and promote its goals. But trials are expensive. The lawyers, the experts, and the delays associated with bringing a case to trial all represent costs that social movements might be unprepared to bear. At such times, they may seek out allies who can provide additional resources. Law clinics, attorneys offering pro bono services, and legal rights organizations can sometimes help social movements who want to use the legal system. But rarely do movements seek the help in the criminal justice system. Rather, law enforcement and prosecutors are often associated with repressing social movement activism rather than promoting it. Still, criminal trials offer meaningful possibilities to social movements. First, prosecutors have extensive resources and experience in Studies in Law, Politics, and Society, Volume 49, 97–121 Copyright r 2009 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049007

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leading investigations, hiring experts, and conducting trials. More importantly, criminal trials have symbolic significance, allowing a movement to claim the state as an ally and to characterize its opponents as criminals. In this chapter, I describe the prosecution of Citgo for environmental crimes in Corpus Christi, Texas. After a four-week trial, a federal jury convicted Citgo of two counts of criminal violations of the Clean Air Act. Later, after a bench trial before a judge, Citgo was also convicted of three misdemeanor counts of violating the Migratory Bird Treaty Act. The trial gave a social movement organization, Citizens for Environmental Justice (CFEJ), an opportunity to educate the public about hazardous environmental conditions in their communities, to challenge corporate malfeasance, and to claim legitimacy for their cause. In this chapter, I use the Citgo prosecution as a case study to suggest ways of understanding the role of litigation in social movements’ strategic choices.

LITIGATION IN THE ENVIRONMENTAL JUSTICE MOVEMENT Studies of social movements have reflected a persistent ambivalence about the role of law and litigation in the life of a social movement. On the one hand, many have shown that a social movement can effectively use litigation to educate the public about its cause and to raise consciousness among potential activists. Others believe, however, that legal strategies are conventional tactics dominated by elites and professionals who offer, at best, modest reform while also demobilizing grassroots participation in the movement. This latter view is prevalent among both activists in and scholars of the environmental justice movement. In this section, I briefly describe the environmental justice movement and situate it in the scholarly debate about the role of legal strategies in social movements. The Environmental Justice Movement The environmental justice movement is made up of many individuals and small, grassroots organizations that are fighting environmental degradation in their immediate communities (Szasz, 1994). Environmental justice activists tend to be poor or working class individuals and families whose homes, jobs, or schools are located near sources of pollution. As a result of this proximity, these individuals develop serious health problems or the

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value of their homes dramatically declines. These problems constitute the grievances around which the movement initially mobilizes (Szasz, 1994; Bullard, 1990, 1993; Bryant, 1995). Unlike the mainstream environmental movement, activists link environmental quality to broader systems of structural inequality and social injustice (Capek, 1993; Szasz, 1994). They point out that environmental hazards are disproportionately located in poor and minority communities, where residents need more jobs, better health care, and improved schools. Their needs are so great that they are prepared to accept the few jobs that a polluter might bring and are less able to resist the corporate and political actors who want to place the environmental hazard in their midst (Capek, 1993; Cable & Shriver, 1995). Thus, the environmental justice movement also articulates a critique of the political system, where corporations have greater influence over political and legal institutions than ordinary people (Capek, 1993; Krogman, 1996; Szasz, 1994). Environmental justice activists propose that the best way to resolve these problems is to enhance the community’s role in the political processes that govern environmental decision-making (Capek, 1993; Szasz, 1994; Bullard, 1990, 1993). The strategies the movement endorses for achieving these goals emphasize direct action and mass participation in protest activity (Capek, 1993; Cable, Hastings, & Mix, 2002). Thus, they encourage community groups to organize protests, demonstrations, and even civil disobedience (Bullard, 1993; Capek, 1993; Szasz, 1994). In addition, these organizations often sponsor self-education projects about science, law, and government and conduct some of the scientific testing themselves (Bailey, Alley, Faupel, & Solheim 1995; Szasz, 1994). Even their efforts to use more conventional strategies reflect the movement’s preference for mass participation. For example, they fill public hearings with local residents, conduct research, file documents, and offer testimony about the effects of both actual and potential environmental hazards (Pellow, 2001; Roberts & Toffolon-Weiss, 2001; Schwab, 1994). Environmental justice activists vigorously discourage the use of conventional strategies, particularly litigation, primarily because these tactics depend so heavily on experts, including lawyers, scientists, and engineers. Scientific and legal expertise is rarely free, and environmental justice organizations can find themselves raising money to hire scientists and lawyers rather than engaging in more productive and participatory oppositional strategies (Cable et al., 2002). Moreover, relying on experts interferes with one of the goals of environmental justice – claiming power over the knowledge needed to participate in democratic decision-making (Cable et al., 2002).

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Legal strategies are particularly disfavored. In an analysis of ‘‘voices and venues’’ in the environmental justice movement, Cable and her colleagues distinguish between activists and lawyers.1 In their account, lawyers file lawsuits but do nothing else for the movement. Lawyers’ goals – ‘‘appropriate juridical arguments and winning’’ – are at odds with activists’ goals – ‘‘recruitment and political mobilization’’ (Cable et al., 2002, pp. 36, 37). Moreover, these lawsuits are rarely successful, except when environmental laws have been clearly violated. Besides being ineffectual, legal strategies also weaken the movement: ‘‘Litigation frequently hinders mobilization because as protest activities ebb, lawyers increasingly make the decisions and the grassroots organization must dig deeper for funds to support the litigation’’ (Cable et al., 2002, p. 35; Cable, Mix, & Hastings, 2005). Cable, Mix and Hastings summarize the risks of legal strategies: ‘‘Litigation is a disadvantageous strategy for [environmental justice movement] organizations because it requires large amounts of money from people who do not have it, because it is often unsuccessful, because it weakens organizational solidarity, and because even successful litigation does not bring significant rewards’’ (Cable et al., 2005, p. 61).

Comparing Models of Law and Social Movements Skepticism about lawyers and legal strategies is not restricted to the environmental justice movement. In fact, this perspective has been developed in a long tradition of social movement research. In addition to being demobilizing, legal strategies offer limited transformative potential for social movements (Scheingold, 1974 [2004]; Handler, 1978; Rosenberg, 1991). Lawsuits are limited to narrow disputes affecting relatively few parties, thus isolating the cases from the broader structural inequalities that gave rise to the dispute. Moreover, when a dispute becomes a legal problem, it is translated into legal language and relegated to a particular arena controlled by elites and often obscure to ordinary people (Scheingold, 1974 [2004]). Legal processes are time-consuming and expensive, requiring money for lawyers, experts, and consultants, all of which are more available to the powerful organizations that social movements usually oppose (Galanter, 1974). And in the end, judicial remedies provide limited relief that not only fail to redress the underlying problem but that must also be continually monitored, thus requiring even more resources (Scheingold, 1974 [2004]; Handler, 1978; Rosenberg, 1991). These features have led many social


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movement scholars to relegate litigation to those conventional tactical repertoires that inevitably sap a movement of its radical, grassroots strength. Of course, a competing line of research has amply demonstrated the role of litigation in mobilizing activists and raising public awareness about a social movement’s cause (Scheingold, 1974 [2004]; McCann, 1994; Olson, 1984). In these studies, social movement activists are not naı¨ ve consumers of legal services, nor do they harbor false hope about the likelihood that a lawsuit will result in permanent structural change. Rather, they rely on litigation to support other goals and tactics (Scheingold, 1974 [2004]; McCann, 1994; Olson, 1984). First, trials often receive widespread media attention. And although it is true that litigation can over-simplify complex social problems, the simplicity of the story makes these issues accessible to a broader public. Second, lawsuits are public processes that unfold in many different venues that are conducive to grassroots participation. Lawyers can work with activists to develop the evidentiary basis of the case; activists can participate in court watch programs to observe and report on legal proceedings; demonstrators can stage protests on the steps of the courthouse (McCann, 1994; Olson, 1984; Marshall, 2006). Thus, trials help social movements educate the general public about the nature of their problems. In addition, the legal symbols deployed and circulated in the course of a lawsuit are particularly useful to social movement activists. For the general public, legal symbols are easily recognized and well-respected. Concepts such as ‘‘rights’’ and ‘‘property’’ enjoy widespread recognition and support, thus making them appealing frames to movements seeking popular acceptance (Snow & Benford, 1992). Moreover, legal symbols can be powerful in helping movements mobilize oppositional consciousness among new activists. By emphasizing rights, movements can help people reinterpret their grievances and can encourage them to participate in collective action (McCann, 1994; Olson, 1984; Polletta, 2000). But the criminal justice system has rarely been considered an arena for social movement mobilization. In fact, the criminal justice system has most often been a tool used to repress social movement activity rather than to promote it. Movement activists, as outsiders, rarely have control over the political machinery of the criminal justice system and so are rarely in a position to mobilize it for purposes of social change. Instead, when activists threaten to disrupt the public order, they often find themselves targets of police and prosecutors. Barkan (1984) showed that southern whites used criminal prosecutions to chill the civil rights movement. More recent studies have analyzed police repression of activists at demonstrations (Earl & Soule, 2006; Earl, 2005; Earl, McCarthy, & Soule, 2003). But a second strand of

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research has shown that some social movements seek to harness the power of criminal law on behalf of their constituents. So, for example, the battered women’s movement promotes new laws and police procedures designed to deter domestic violence (Schneider, 2000), and many social movements have sought the inclusion of their constituents within the protection of hate crime laws (Jenness & Grattet, 2001). But these studies have focused on how social movements try to shape public policy, not the role of the movement once such crimes are tried in court. There are theoretical advantages to study social movement participation in criminal trials. First, it enhances social movement theory by including litigation and other legal processes – which are often misunderstood in the social movement literature – in models of social movements’ tactical choices. Trials should be conceptualized as a process rather than a singular strategic option. These processes consist of many different arenas shaped by institutional constraints and opportunities allowing movements to promote change by interacting with their opponents, their allies, their constituents, and the general public. Moreover, focusing on criminal trials adds a dimension to studies of law and social movements. First, this focus outlines both the benefits and the risks that accrue to social movements when they ally themselves with the state. Prosecutors have seemingly limitless resources to pursue criminal investigations and trials, resources that social movements can exploit. In addition, criminal trials offer social movements powerful symbols that can be used to condemn their opponents. Yet even when they are criminal defendants, powerful corporations with extensive resources still have advantages in the legal system.

DATA AND METHODS This chapter is based on blog entries and media reports on the trial in the federal prosecution of Citgo for environmental crimes. Entitled ‘‘CFEJ Trial Update’’ (http://usavscitgo.blogspot.com/), the blog was maintained by CFEJ. Its chief author was activist, Suzie Canales, the director of CFEJ, who lost her sister, a resident of Hillcrest, to cancer. Canales responded to the loss by beginning her career in environmental justice activism. She attended everyday of the trial and reported on the proceedings in blog entries. Melissa Jarrell also contributed to the blog. Jarrell is criminologist at Texas A&M University – Corpus Christi who specializes in corporate crime and environmental crime.


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The blog had 142 entries when this article went to press,2 describing all the major developments during the trial in the case United States v. Citgo in federal district court in Corpus Christi, Texas. The blog provided analysis of the expert testimony offered during the trial, offered commentary about Citgo and its plant operations, and described CFEJ’s other efforts to publicize the trial in the Corpus Christi community and beyond. My emphasis on the blog is appropriate, particularly because my goal in this article is to analyze how social movements can mobilize around a criminal trial. The blog is a first-hand document of the opportunities for and obstacles to such mobilization. Where possible, I confirmed the blog’s version of events using media reports in the local newspaper, the Corpus Christi Caller-Times, and several brief stories about the trial that appeared on local television news. Unfortunately, the Caller-Times offered little coverage of the trial until the first guilty verdict on the Clean Air Act violations. The coverage of the trial on the issue of violations of the Migratory Bird Treaty Act was more extensive. In all, there were 18 articles about the four-week trial in the Caller-Times.3 I have relied on ‘‘negative case’’ methodology for studying the Citgo trial. Negative case methodology requires in-depth analysis of cases that defy theoretical predictions to identify the variables or mechanisms that make those cases exceptional. Once identified, these factors can be used to improve the theoretical models. Indeed, as a single case study, my analysis cannot test hypotheses or make generalizations about social movements and their strategic decisions. Still, the findings of this study can help improve existing models of social movement mobilization in the legal system, particularly criminal trials.

SOCIAL MOVEMENT MOBILIZATION AND CRIMINAL TRIALS Social movements’ tactical repertoires have been defined as ‘‘interactive episodes that link social movement actors to each other as well as to other opponents and authorities for the intended purpose of challenging or resisting change in groups, organizations, or societies’’ (Taylor & Van Dyke, 2004, p. 266). Criminal trials are themselves ‘‘tactical repertoires,’’ comprising interactive episodes – some confrontational, some collaborative – that link victims, defendants, lawyers, and state actors in an effort to establish what kinds of injuries occurred and who is responsible. Elements of the trial vary in

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how accessible they are to social movement intervention and grassroots participation. A trial’s public confrontations can be very helpful to social movements struggling to persuade the public and policy-makers that the defendant is a culpable agent. Moreover, creative alliances between lawyers and social movement actors can create opportunities for participation in unexpected ways. Of course, powerful defendants have advantages in the legal system, and social movements will face imposing constraints in their efforts to create meaningful change through legal tactics. Still, as the sections that follow will show, under certain conditions, criminal trials can publicize a movement’s grievances and expose the responsible party. CFEJ used the trial of Citgo for environmental crimes to educate the public and to build their own movement against Citgo and other oil refineries in the Corpus Christi area. Although neither CFEJ nor its constituents was a party in the trial, the prosecutor acted on their behalf by confronting Citgo with evidence of its criminal conduct. In this process, the legal symbols that permeate the criminal justice system allowed activists to recast Citgo as not merely a polluter, but a convicted criminal as well. Moreover, through the efforts of the prosecutors and CFEJ activists, Hillcrest residents participated in collective action that became part of the trial. But CFEJ’s experiences also reflected some of the risks movements face when they engage with the legal system, where corporate criminals may nevertheless enjoy advantages because of their extensive resources.

Trials as Confrontation A trial is a structured, adversarial dialogue about injuries and responsibility for those injuries. During a trial, the party initiating the lawsuit begins by presenting evidence that she has been injured and that the defendant is responsible for that injury. The defendant, then, must respond – either by minimizing the harm done or by offering justifications for its conduct. Although legal rules (such as the rules of relevance) severely constrain the kinds of evidence and arguments offered in legal proceedings, the stylized confrontation between the parties provides a unique opportunity for a social movement to showcase the misdeeds of an opponent, to extract an explanation for the conduct, and to demand a remedy. According to existing research, however, a criminal trial would be an unusual place for social movement mobilization. Like all litigation, criminal trials would be viewed as potentially demobilizing (Cable et al., 2005). Specifically, activists would be excluded from participating in the ritualistic


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examination and cross-examination of witnesses, the introduction of evidence into trial, and the formal opening and closing arguments. These practices would be undertaken by elite attorneys who would undoubtedly discourage the distracting involvement of activists. In addition, legal rules governing relevance, for example, constrain the kinds of evidence and testimony offered at trial. Thus, movements can rarely describe their injuries in ways most faithful to their experience. Criminal trials are particularly alienating. Social movements are not a party to a criminal trial and have no formal control over the presentation of the evidence. That responsibility belongs to prosecutors who work for the state and who are not necessarily accountable to the victims, let alone to social movements who represent those victims. But the Citgo case illustrates the opportunities for collaboration between prosecutors and movements. At Citgo’s criminal trial, the prosecution presented 25 witnesses over four weeks. The prosecution’s case in chief had two principal issues. First, the prosecution showed that oil had seeped into unsealed tanks, thus releasing unacceptably high levels of benzene, a known carcinogen, directly into the environment. But Citgo barely contested this issue during the trial. The more controversial aspect of the prosecution’s case was Citgo’s level of culpability for these emissions. The prosecution argued that lax environmental practices and corporate greed created a culture of indifference to environmental regulation, whereas Citgo’s attorneys argued that such emissions were simply a routine aspect of operations in an oil refinery. In his opening statement, the lead prosecutor, Howard Stewart, said: ‘‘This is a case about pollution’’ (CFEJ Trial Update, May 25, 2007). The first witness was a Citgo employee, Rudy Salazar, who testified about log books documenting unacceptably large amounts of oil in unsealed tanks and the bad smells that were coming from those tanks. In one log entry, Salazar wrote: ‘‘openedybypass valve, closed it. Concerned about the [valve] being opened and vapors coming off, directly into the atmosphere, into the environment’’ (CFEJ Trial Update, May 25, 2007). Citgo employees also testified that conditions there were worse than other refineries in which they had worked (CFEJ Trial Update, May 27, 2007). Finally, others testified about removing carcasses and body parts of dead ducks from the oil tanks, thus violating the Migratory Bird Treat Act (CFEJ Trial Update, July 14, 2007). After showing the conditions at the refinery, the prosecution offered evidence that Citgo was aware that the violations were occurring and did nothing to stop them. To prove this element of the case, the prosecution had to rely on Citgo employees who were hostile witnesses and whose personal attorneys were paid for Citgo. Still, the prosecution gradually established

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that Citgo senior management knew that oil was collecting in unsealed tanks. Witnesses also testified that plant managers were aware of federal regulations requiring measurement of benzene levels. According to the witnesses, however, the plant manager refused to perform these tests because they were too costly (CFEJ Trial Update, June 3, 2007). CFEJ’s principal grievances were not reflected in the prosecutor’s case-inchief. Legal rules of evidence prohibited the activists from testifying about life near the plant. Early on in the case, the judge ruled that residents’ health problems were irrelevant to the questions of whether the plant violated federal emissions standards and whether migratory birds died because of exposure to those emissions (CFEJ Trial Update, June 15, 2007). The judge allowed several residents to testify about the smells emanating from the plant, but that was the sole basis for their testimony (CFEJ Trial Update, August 4, 2007). Later, during the sentencing proceeding, community residents testified at greater length about their health problems and living conditions, but these issues were not part of the prosecutor’s case-in-chief. Citgo’s defense unfolded in three stages. First, the defense trivialized the seepage of oil into the unsealed tanks, suggesting that such seepage was commonplace in refineries. In his opening statement, defense attorney Dick DeGuerin said: ‘‘Refineries are smelly and dirty; that’s just the truth. You can’t have a refinery without smells, you can’t make an omelet without breaking eggs’’ (CFEJ Trial Update, May 25, 2007). Second, the defense argued that the regulations requiring pollution controls did not apply to these particular tanks (CFEJ Trial Update, May 24, 2007). Finally, according to the blog, Citgo argued that even if oil did seep into the tanks and even if those tanks required pollution controls, the regulations were complicated, and despite his best efforts, the plant manager did not fully understand the requirements (Chirinos, June 23, 2007b; CFEJ Trial Update, May 30, 2007). The defense also argued that it had taken steps to remedy the problem by putting a roof on the tanks once it learned of the problems (Chirinos, June 27, 2007c). After two days and five witnesses, the defense rested. After three days of deliberation, the jury returned a guilty verdict on two counts of violations of the Clean Air Act. Specifically, the jury found that Citgo operated two tanks with improper pollution controls. The jury also found Citgo not guilty of illegal releases of benzene from the same tanks (Chirinos, June 27, 2007c). In addition, in a separate proceeding that followed the jury verdict on the Clean Air Act violations, the judge found Citgo guilty of three misdemeanor violations of the Migratory Bird Treaty Act for the ducks that were killed as a result of landing in the unsealed tanks (Chirinos, July 18, 2007d).


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Both sides agreed that the guilty verdicts represented a victory for the prosecution. The prosecution claimed that the convictions were a landmark prosecution of an oil refinery for environmental crimes. On the contrary, Citgo condemned the prosecution itself as an example of overreaching by the government (Chirinos, June 21, 2007a, July 18, 2007d). Shortly after the verdict, Citgo took out a full page ad reminding the community of all the jobs it provided to the residents of Corpus Christi (CFEJ Trial Update, July 13, 2007). Although community residents were not permitted to testify about their health problems in the prosecutor’s case-in-chief, they played a pivotal role in the sentencing hearing. Several Hillcrest residents took the stand to describe the powerful odors that came from the refinery – smells so strong that they burned people’s eyes, gave them sore throats, and rendered them sleepless (CFEJ Trial Update, April 28, 2008, April 30,2008; Chirinos April 29, 2008a, April 30, 2008b). Others testified about the dust and ash that covered their cars and yards, making it difficult to grow anything on their property (CFEJ Trial Update, April 30, 2008). Teachers and a principal working at a school in the neighborhood testified about the effects on children (CFEJ Trial Update, April 30, 2008). Their stories were confirmed by investigators from the Texas Department of Environmental Quality who went to Hillcrest in response to community complaints. They testified that their own crews sometimes felt ill when visiting the area (CFEJ Trial Update, May 1, 2008; Chirinos, May 1, 2008c). Experts in epidemiology and engineering also testified about whether the residents’ health effects could be related to Citgo’s refinery. Prosecution witnesses described the health effects of prolonged exposure to oil – effects that corresponded to the residents’ complaints (CFEJ Trial Update, May 3, 2008; Chirinos, May 3, 2008d). On the contrary, Citgo had a chemical engineering expert testify that the fumes may not have originated at Citgo. But the expert relied on a computer model that, as the prosecutor noted, did not contain many of the known variables affecting the transmission of fumes from the open oil tanks (CFEJ Trial Update, May 13, 2008; Kelley, May 13, 2008b). The sentencing hearing was not yet concluded when this article went to press, and the judge had not yet imposed a sentence. On balance, the Citgo trial offered CFEJ opportunities to promote its cause that it might not otherwise have had. The alliance with the prosecutor provided access to evidence about plant operations and compelled Citgo employees to appear and offer testimony damaging to their employer. On its own, CFEJ would never have had the power to uncover detailed evidence about operations and regulatory violations in the Citgo refinery. Yet this

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alliance had a price. Like most legal proceedings, legal rules prevented local residents and activists from telling their own stories in their own way. Their accounts of their health problems and their living conditions were postponed while the court heard days of evidence about dead birds. Still, CFEJ celebrated the outcome of the trial that rendered Citgo a convicted criminal, thus legitimizing CFEJ’s long-standing complaints about the refinery’s operations, and used the trial as a vehicle for other forms of grassroots organizing described in the following section.

GRASSROOTS PARTICIPATION IN CRIMINAL TRIALS Social movement scholars and activists assume that litigation will demobilize grassroots participation in movement tactics because it relies so heavily on elite actors and formal institutions (Piven & Cloward, 1978; Cable et al., 2005). The Citgo trial provides some empirical evidence for these assumptions. The trial was dominated by elite actors; the prosecutors made all the critical strategic decisions. The lawyers conducted the trial using legal and scientific language largely unfamiliar to the activists and ordinary people most affected by Citgo’s crimes. The trial occurred in the federal courthouse, far removed from the sights and smells of the community near the refinery. Even so, CFEJ activists found ways to participate in the Citgo trial. Although they had no control over trial strategy, Citgo activists nevertheless exploited the proceedings to publicize their movement. They monitored the trial and translated the events of the trial for area residents; they pressed the local media to expand their coverage of the trial; they designed creative collective action that gave community members opportunities to participate in the proceedings; and they assisted the prosecution in compiling evidence for the sentencing phase of the trial, including helping to find community residents to testify about their experiences in Hillcrest. Through these grassroots efforts in and around the trial proceedings, CFEJ consistently reenforced its own message about Citgo’s criminal acts and the damage they did to the community. Although much of the preparation for litigation occurs behind closed doors in lawyers’ offices and judges’ chambers, the trial itself occurs in public, and social movement activists have access to the proceedings. Indeed, many activists have neither the time nor the resources to attend lengthy sessions in court, particularly when trials last weeks or even months. Still, on important


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days, filling the courtroom with movement supporters can send a message about who is most affected by the events going on in the courtroom. Although attendance at the Citgo trial was sparse,4 the authors of the CFEJ blog described the scene on the day of closing arguments to the jury: The left-hand side of the courtroom, the Citgo side, peppered with blue working shirts with the Citgo emblem, perhaps a subtle message to the jurors to remind them of the jobs Citgo brings to this town, and at the right side of the courtroom, the Prosecution’s side, were predominantly people of color and low-income [people] that know the harsh reality of living next to not one, but two oil giants. (CFEJ Trial Update, June 23, 2007)

Several days later, the blog reported: ‘‘The show of support on the Citgoside of the courtroom during last Friday’s closing arguments was just that – a show’’ (CFEJ Trial Update, June 25, 2007). Apparently, Citgo called employees, some of whom were on their way to work, and told them to report to the courthouse instead of the workplace. The authors of the blog interpreted this competition for the courtroom space as an illustration of the story of David and Goliath, where Citgo was trying to intimidate the judge and jury while the Hillcrest residents were simply giving public witness to the living conditions near the refinery. Even when mass attendance is not feasible, activists may nevertheless monitor trial proceedings. Suzie Canales attended every day of the trial and published reports about the day’s events in her blog. The blog summarized often complex testimony in a simple, straightforward style, making it easy for activists and lay people to understand. When describing the testimony of Citgo employees, she pointed out the inconsistencies in their statements and derided their evasive responses to questions. The blog also contained information about the substantive issues being covered in the courtroom. For example, it described the health risks associated with prolonged exposure to benzene and outlined the regulatory requirements governing the refinery. She also described examples of other environmental violations at Citgo’s refinery, such as an oil spill that occurred in the weeks before the sentencing hearing (CFEJ Trial Update, March 21, 2007). Given the limited coverage of the trial in the mainstream press, the blog was a critical source of information for CFEJ members and local residents. CFEJ also pursued more conventional media strategies. For example, Canales arranged a press conference for local news organizations, where reporters interviewed community members about their health problems and the disadvantages of having an oil refinery as a neighbor. A local television news program televised some of these interviews during the jury deliberations. Thus, the event gave residents a collective platform to talk about their

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injuries and gave them access to a wider audience through media coverage. The authors of the blog emphasized the rights of affected residents to speak out about their grievances in a public forum. [W]hen people gathered this day in Hillcrest to share their concerns about health and the environment, DeGuerin brought it to the court’s attention as a weapon for a mistrial. The message that sends to me: The line is still clearly drawn in the sand-whites with money and power on one side, people of color and low-income on the other, by the dirty, stinky refineries. (CFEJ Trial Update, June 7, 2007)

CFEJ’s media strategy, like all its tactical choices, was therefore tied to empowering the residents living near the refineries. Despite CFEJ’s access to the media, the local press gave scant coverage to the criminal trial, particularly at the outset. Melissa Jarrell, a CFEJ activist and assistant professor of criminology at the University of Texas, Corpus Christi did an analysis that showed that the Caller-Times published eight articles about the Clean Air Act violations over the four weeks of that trial; it published six longer articles about the week-long Migratory Bird Treaty Act proceeding. Thus, the felony counts received less coverage on a daily basis than the misdemeanor counts associated with killing the birds. Moreover, most of the articles about the trial were published in the Business section, a part of the paper that few people read (CFEJ Trial Update, August 5, 2007). Jarrell noted that there was far less coverage of Citgo’s trial than of its various ‘‘environmental’’ projects in the area. Jarrell characterized these projects as ‘‘greenwashing,’’ investments in public relations campaigns that give a corporation the appearance of being environmentally friendly but which mask its polluting practices. For example, Jarrell noted that the CallerTimes published almost as many articles about Citgo’s efforts to save a manatee that had wandered into the port as it did about the Citgo trial (CFEJ Trial Update, August 19, 2007). The trial also became an object of more creative, participatory forms of protest. The Community Environmental Forum Theater sponsored a theater workshop for CFEJ activists focusing on the Citgo trial. This project in social justice theater travels to communities in Texas that are exposed to environmental hazards. It is designed to ‘‘help impacted individuals understand the relationship between health and environmental toxins, while allowing them to explore problem-solving tactics through the dramatic process’’ (CLEAN web site). The performances in Hillcrest highlighted key moments of the Citgo trial, including the testimony of a community resident, the closing arguments, and the jury deliberations. The


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blog authors emphasized the expressive and educative aspects of the theater project: After the skits were performed, people in the audience were invited to participate by stepping into the role of an actor who was trying to reason with a fellow actor on a specific conflict. This type of audience/actor interaction is a fun and creative way to work together on a possible different outcome; this community environmental forum theater is a powerful tool that truly gets the audience up on their feet to interact and participate. The theater was also educational; many people in the audience commenting that they took away from the performances a great deal of insight and knowledge of the events around the trial-issues that they had no previous knowledge of because the media has not reported it. (CFEJ Trial Update, November 19, 2007)

CFEJ also assisted the prosecution in developing its case for the sentencing phase of the trial and helped to organize a mass meeting of Hillcrest residents affected by Citgo’s polluting practices. According to the Crime Victim Rights Act, the prosecution must contact victims of crime, inform them about the trial and solicit victim impact statements. Those victim impact statements then inform the court’s sentencing decision. In the aftermath of the guilty verdicts, the prosecutors sponsored two town hall meetings over two days in a Hillcrest community center. CFEJ widely publicized these meetings on its blog and through its community networks (CFEJ Trial Update, September 25, 2007). The town hall meetings were well-attended. The authors of the blog reported that hundreds of people arrived at the community center within the first hour on the second day of meetings. The center was so crowded that the prosecutor, Howard Stewart, had to do his presentation about the trial in a crowded hallway. The author of the blog overheard his presentation: He talked about the trial, Citgo’s criminal acts, and he talked of victim’s rights. He also said this was not about money for any of the victims and yet I didn’t see anyone walk away. They had all been victimized by Citgo’s criminal actions; these are the people that Citgo showed no mercy to. I could see the angry look on many of their faces when Stewart told the crowd that Citgo knowingly committed these criminal acts for several years. All people could do was to shake their head from side to side, as they listened. When Stewart finished the orientation he instructed people to proceed into the backrooms to fill out a victim’s impact statement if they still felt (after hearing his speech) that they were possible victims. People poured into the backrooms. (CFEJ Trial Update, October 2, 2007)

Thus, the prosecutor and CFEJ actively worked together to encourage local citizens to participate in the criminal sentencing proceedings.

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This method for soliciting victim impact statements provided a fertile ground for community organizing. By bringing residents together and telling them about the trial, the prosecution gave them the chance to exchange information and experiences: For several hours this went on; people coming and going and the local media in and out. Some people stopped to talk with fellow neighbors about residue they continue to find on their cars or the air that smells so bad, they can’t take it any more. What I heard the most throughout the day from people was that they wanted to be bought out by Citgo for an amount that would enable them to move into another home comparable to the home they have, in an area of their choice. (CFEJ Trial Update, September 28, 2007)

CFEJ also had a presence at the town hall meetings. Although the press was specifically excluded from the community center, CFEJ was permitted to set up a table near the exit: ‘‘Representatives from the group had their own signup sheets for people that wanted to volunteer to be part of the group’s biomonitoring study and soil/dust sample study’’ (CFEJ Trial Update, October 2, 2007). Thus, in developing its case for the sentencing, the prosecution and CFEJ worked together to sponsor community events that gave Hillcrest residents the collective experiences of participating in one phase of the trial. Notably, the defense attorney, Dick DeGuerin, was openly concerned about the organizing opportunities at the prosecution’s method of contacting victims. He complained to the press that the town hall meetings constituted ‘‘barratry, or the practice of enticing lawsuits’’ (Chirinos, September 28, 2007c; CFEJ Trial Update, October 4, 2007). Citgo had reason to be concerned about the possibility of lawsuits stemming from its Corpus Christi refinery. In 1998, Citgo settled a class action lawsuit brought by the residents of Hillcrest and other communities in the area for the diminution of property value for their houses. Yet since 1998, money in the settlement fund had neither been distributed to residents, nor properly accounted for. After years of relative inactivity, however, Hillcrest residents held meetings to strategize about enforcing the settlement agreement shortly after the jury verdict in the Citgo trial. Describing the leaders of this effort, the CFEJ blog reported: [T]he powers-that-be didn’t count on Kelly and John to invest years of time, money and energy to investigate this crooked situation. Last night, Kelly and John presented to a room full of people documents with pay-offs-names, amounts (who got what), what the class-reps have received in payments.


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The community had a right to know this; 3 meetings a year should have taken place through the years to keep the community informed but that never happened-not till last night. People were angry that so much was kept from them for so long. The old ‘‘divide and conquer’’ tactic will work no more. People are ready to fight back. Members of Citizens for Environmental Justice were also present, some being residents of Hillcrest too, and they updated the people of the blood and urine study going on, and reminded people of the soil sampling that show how highly contaminated their community is. (CFEJ Trial Update, October 12, 2007)

Thus, the organizing around the criminal trial may give rise to further organizing around a different civil proceeding. The sentencing phase also offered community residents an opportunity to participate directly in the trial. They testified in public about their grievances against Citgo. According to the blog, Rebecca Zamora told the court: ‘‘I know I’m not supposed to hate because of what they (Citgo) did to my parents, my home, my kids, myselfy . They (Citgo) thought we were dumb. They kept telling us that it (the toxins) never leaves the fence. We knew better y they didn’t care’’ (CFEJ Trial Update, April 28, 2008). Ms. Zamora may not have been a formal activist, but her participation and the contributions of other residents gave a platform to people who might never have otherwise been able to confront Citgo. In the course of its activism around the Citgo trial, CFEJ often drew on the symbols prevalent in the criminal justice system. Social movements have a long tradition of drawing on legal symbols in their efforts to mobilize activists and to persuade policy-makers to adopt reforms. Rights have been a particularly powerful resource for American social movements (Scheingold, 1974 [2004]; McCann, 1994; Olson, 1984; Pedriana, 2006; Skrentny, 2006). Legal symbols can confer legitimacy on the movement, aligning its goals and tactics with the state and culturally familiar practices. Although rarely tapped on behalf of social movements, criminal trials offer many powerful symbolic resources. For example, a guilty verdict allows the movement to characterize an opponent as a convicted criminal. Moreover, the resources of the state in such trials are arrayed behind marginalized communities. Thus, a criminal trial offers a powerful affirmation to a movement and an attentive public that its cause is just. CFEJ’s blog emphasized the significance of having the state as an ally in its fight against Citgo. Characterizing the federal courthouse as ‘‘a symbol of justice for all’’ (CFEJ Trial Update, June 7, 2007), the author of the blog

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focused on how the prosecution evened the playing field for residents of Hillcrest: Whereas before, the low-income people of color had been on their own to fight the oil giant (Citgo)-a classic David and Goliath situation. This time, in this Federal Courtroom, the United States was speaking for the people that were sitting on the right-side of the courtroom. This time, the people had a voice, a very strong and powerful voice, the voice of Howard Stewart (CFEJ Trial Update, June 22, 2007)

After the jury verdicts, the CFEJ blog often characterized Citgo as a criminal. The author of the blog described the moment that the judge delivered the verdict to Citgo’s plant manager and the defense attorney: That moment, for me anyway, was a vindication. For so many years-decades-the people that live by Citgo have suffered, been dismissed, ignored, made to feel their concerns were ‘‘all in their heads,’’ after all, Citgo is a good corporate neighbor. But at this moment everything changed. Not only for the environmental justice communities here locally, but for environmental justice communities all around the country. Citgo can no longer hide behind their massive Public Relations campaigns. Citgo can no longer hide behind their blue uniforms and think that the uniform with the Citgo logo is synonimus [sic] with good neighbor. They can no longer hide behind their word that they’re doing nothing wrong, and they care about the community, because now, the Citgo logo will carry the stigma of ‘‘criminal.’’ (CFEJ Trial Update, June 27, 2007)

In addition, CFEJ emphasized the meaning of the ‘‘not guilty’’ verdicts on two of the counts. The day after the verdicts were delivered, Citgo took out a full page ad in the Corpus Christi Caller-Times, reading in part: ‘‘Citgo Found Innocent Regarding Reporting Requirement.’’ The author of the blog wrote: ‘‘There is a legal distinction between not guilty and innocent. Citgo was found ‘not guilty’ of counts 1 and 2, they were not found innocent, as Citgo would have you think’’ (CFEJ Trial Update, July 23, 2007). Governed by formal legal rules, criminal trials are clearly the preserve of elite actors. Lawyers dominate the decisions and control the presentation of evidence. Despite their formality, however, legal institutions like trials do not necessarily exclude grassroots activism. Through widespread publicity, trials can educate the public about movement issues. In addition, some stages of the trial do not just allow but actually require community involvement, thus creating opportunities for grassroots participation.


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WHEN DEFENDANTS ARE THE ‘‘HAVES’’ Powerful corporations have advantages in the legal system that do not evaporate simply because they are criminal defendants (Galanter, 1974). They still have resources to hire lawyers, generate motions, and delay proceedings, and they deploy those resources in criminal cases as well as in civil cases. Their long-term interests also give them an incentive to challenge prosecutors in every possible way. The Citgo case was the first time an oil refinery was prosecuted for environmental crimes, and the conviction set a dangerous precedent. What had previously been civil violations of federal regulations were now crimes, and Citgo employees were at risk of going to prison. The federal prosecutors also had resources and experienced attorneys and could therefore match Citgo’s legal maneuvers. Yet the activists who were monitoring the trial were vulnerable when Citgo turned their advantages in the legal system against CFEJ. Early in the trial, the defense attorney, Dick DeGuerin, moved for a mistrial based on CFEJ’s media strategy. He argued that the media attention to residents and their health problems would prejudice the jury. In support of the motion, he offered television coverage of the press conference CFEJ arranged and a hard copy of CFEJ’s blog entries. He singled out Canales’ influence by pointing out that her image had appeared in the television coverage. Canales blogged about the defense’s motion for a mistrial: It’s okay for people with power and money and that are white to speak out and say all they want. But we cannot have the oppressed population speak out, especially if it’s going to hurt, in any way, the more fortunate. This wasn’t the first time people of Hillcrest spoke to the media about their health concerns, and it won’t be the last, so long as the environmental racism continues. (CFEJ Trial Update, June 7, 2007)

Canales echoed Galanter’s critique of the legal system – that the ‘‘haves’’ come out ahead. Yet she persisted in her efforts to publicize the trial. In her view, the publicity devoted to the trial revealed Citgo’s misdeeds to the general public and corrected in some measure the power imbalance between Citgo and Hillcrest residents. The defense attacked Canales and her blog more directly after the verdict. In the blog, Canales adopted a literary technique of being a ‘‘fly on the wall’’ of the jury room, observing their deliberations. Published only after the verdict was delivered, those blog entries purported to provide insight into how the jury arrived at its decision and were clearly based on Canales’ conversations with a juror. The defense argued, however, that Canales may

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have had access to the jury, and thus, the blog entries constituted preliminary evidence of jury tampering. Defense attorney DeGuerin told the CallerTimes: ‘‘We want Suzie to either put up or shut up. If she was communicating during the trial or if she overheard deliberations, that’s a violation. She may say she was exaggerating, and people ought to know that’’ (Kelley, November 22, 2007). The prosecution vigorously resisted the motion, arguing that its sole purpose was to harass Canales. In support of its motion, it included an affidavit from the guard who monitored the jury room who said that he knew Canales by sight and that she did not enter the room during deliberations. The court allowed the defense to ask Canales questions but required that the deposition be conducted in front of a judge (Kelley, January 12, 2008a). Canales had to hire a lawyer to defend herself. In the end, after Canales’ deposition and after interviewing the bailiff who said no one had access to the jury room, the defense dropped its allegations of jury tampering. Citgo’s motion practice during the trial was clearly permissible under the rules of criminal trials. Yet those motions had little chance of success and seemed intended to intimidate the activists who were publicizing the trial and using the proceedings to organize their campaigns. Thus, even when they are criminal defendants, repeat players such as Citgo have the resources to put pressure on bystanders if they take too active an interest in the trial.

CONCLUSIONS When the Environmental Crime Division of the Justice Department pursued criminal charges against Citgo, the prosecutors were supporting the Hillcrest residents in their campaign against the oil refineries in Corpus Christi. Residents of Hillcrest are overwhelmingly poor and people of color, trapped in polluted neighborhoods. They rarely have the resources to compete with major corporations in political arenas. When the federal government took the side of community members, it made a significant statement about the legitimacy of their complaints. Residents had complained for years about the smells and dust coming from the oil refineries, including Citgo. During the course of the trial, the prosecution established that Citgo failed to use the proper pollution controls on its oil tanks, but also showed that Citgo had adopted deceptive practices to cover up its flawed operations. Environmental justice organizations condemned these practices over time, but once there was a criminal conviction, they were able to characterize Citgo as a convicted criminal.


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But beyond these symbolic victories, the trial provided a focal point for community organizing and other creative social movement strategies. CFEJ used the trial to educate the public about the hazards of living near the refineries and corporate misconduct. They also used occasions created at various stages of the trial to bring residents together and ask them to participate in the movement. Thus, the trial became a resource for the movement rather than a hindrance. This account of the Citgo trial suggests that social movement scholars should revisit their assumptions about the demobilizing effects of litigation on social movements. Litigation is not a single strategy; rather, it unfolds in a number of different institutional settings, some of which are susceptible to influence by collective action. Although elites, particularly lawyers, dominate in most legal venues, they do not always work alone and may in fact welcome the support of social movement activists. Thus, models of movements’ strategic choices should unravel the many stages and settings of legal proceedings and account for lawyers who may align their professional identities with identities as activists. This account also suggests that we examine all the ways that social movements engage with the criminal justice system. Looking beyond movements’ policy proposals to criminalize behaviors, we should more closely examine how movements interact with police and prosecutors. In the Citgo case, CFEJ and the federal prosecutors enjoyed a fruitful alliance. In other areas such as hate crimes or rape victim advocacy, we might expect the relationship between movements and actors in the criminal justice system to be more contentious. As yet, however, we have relatively little insight into this arena of social movement activity. Social movements’ strategic choices with respect to the legal system are never straightforward. Trials may offer social movements a public platform, but that platform will never give movements complete freedom to articulate their complaints in a manner recognizable to their constituents. Movements can hire lawyers and experts to represent them in court, but those elites will be responsible to other agendas set by their professional obligations. Movements can get some relief through the legal system, but that relief will probably not be enough to correct the injustices they have challenged. Yet despite these limitations, movements such as the environmental justice movement continue to seek new ways to make litigation a grassroots, participatory strategy. Those efforts may make litigation part of a broader effort to democratize policy-making in the United States.

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NOTES 1. This distinction is particularly notable because the authors observe that most environmental justice attorneys are public interest lawyers. They observe: ‘‘In contrast to, for example, personal injury lawyers who seek compensation for the client’s injury with large sums of money to be divided between lawyer and client, public interest lawyers tend to view themselves ‘as surrogate representatives of underrepresented people’’’ (Cable et al., 2002). 2. CFEJ was adding entries as this article went to press in May 2008. 3. The Caller-Times was publishing articles about the sentencing phase of the trial as this article went to press in May 2008. 4. According to the blog, ‘‘On any given day, it’s usually Citgo lawyers that occupy most of the courtroom’’ (CFEJ Trial Update, June 23, 2007).

REFERENCES Books and Journal Articles Bailey, C., Alley, K., Faupel, C. E., & Solheim, C. (1995). Environmental justice and the professional. In: B. Bryant (Ed.), Environmental justice: Issues, policies, and solutions. Washington, DC: Island Press. Barkan, S. E. (1984). Legal control of the Southern Civil Rights Movement. American Sociological Review, 49, 552–565. Bryant, B. (1995). Issues and potential policies and solutions for environmental justice: An overview. In: B. Bryant (Ed.), Environmental justice: Issues, policies, and solutions. Washington, DC: Island Press. Bullard, R. D. (1990). Dumping in dixie: Race, class and environmental quality. Boulder, CO: Westview Press. Bullard, R. D. (1993). Anatomy of environmental racism and the environmental justice movement. In: R. D. Bullard (Ed.), Confronting environmental racism: Voices from the grassroots. Boston: South End Press. Cable, S., Hastings, D. W., & Mix, T. L. (2002). Different voices, different venues: Environmental racism claims by activists, researchers, and lawyers. Human Ecology Review, 9, 26–42. Cable, S., Mix, T. L., & Hastings, D. W. (2005). Mission impossible? Environmental justice activists’ collaborations with professional environmentalists and with academics. In: D. N. Pellow & R. J. Brulle (Eds), Power, Justice, and the Environment. Cambridge, MA: MIT Press. Cable, S., & Shriver, T. (1995). The production and extrapolation of meaning in the environmental justice movement. Sociological Spectrum, 15, 419–442. Capek, S. M. (1993). The ‘‘environmental justice’’ frame: A conceptual discussion and an application. Social Problems, 40, 5–24. Chirinos, F. S. (2007a). Citgo testimony winds up: Closing remarks are set for friday in benzene trial. Corpus Christi Caller-Times, June 21.


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Chirinos, F. S. (2007b). Citgo didn’t do wrong knowingly, lawyer says. Corpus Christi CallerTimes, June 23. Chirinos, F. S. (2007c). Jury finds Citgo guilty in landmark criminal trial. Corpus Christi CallerTimes, June 27. Chirinos, F. S. (2007d). Citgo guilty in bird deaths. Corpus Christi Caller-Times, July 18. Chirinos, F. S. (2007e). About 450 attend Citgo meetings: Company’s attorney denounces actions as inciting lawsuits. Corpus Christi Caller-Times, September 28. Chirinos, F. S. (2008a). Former refinery neighbors recall illnesses. Corpus Christi Caller-Times, April 29. Chirinos, F. S. (2008b). Citgo-area residents: Bad odors made us ill. Corpus Christi CallerTimes, April 30. Chirinos, F. S. (2008c). Six testify at Citgo trial. Corpus Christi Caller-Times, May 1. Chirinos, F. S. (2008d). Testimony connects Citgo to complaints. Corpus Christi Caller-Times, May 3. Earl, J. (2005). ‘‘You can beat the rap, but you can’t beat the ride’’: Bringing arrests back into research on repression. Research in Social Movements, Conflict, and Change, 26, 101–139. Earl, J., McCarthy, J. D., & Soule, S. (2003). Protest under fire? Explaining the policing of protest. American Sociological Review, 68(4), 581–606. Earl, J., & Soule, S. (2006). Seeing blue: A police-centered explanation of protest policing. Mobilization, 11(2), 145–164. Galanter, M. (1974). Why the ‘‘haves’’ come out ahead. Law and Society Review, 9, 95–160. Handler, J. F. (1978). Social movements and the legal system: A theory of law reform and social change. New York: Academic Press. Jenness, V., & Grattet, R. (2001). Making hate a crime: From social movement to law enforcement. New York: Russell Sage. Kelley, D. (2007). Judge says canales may be questioned. Corpus Christi Caller-Times, November 22. Kelley, D. (2008a). Judge to hear Citgo questioning, Corpus Christi Caller-Times, January 12. Kelley, D. (2008b). Citgo: Benzene was at low levels. Corpus Christi Caller-Times, May 13. Krogman, N. T. (1996). Frame disputes in environmental controversies: The case of wetland regulations in Louisiana. Sociological Spectrum, 16, 371–400. Marshall, A.-M. (2006). Social movement strategies and the participatory potential of litigation. In: A. Sarat & S. Scheingold (Eds), Cause lawyers and social movements. Palo Alto, CA: Stanford University Press. McCann, M. W. (1994). Rights at work. Chicago: University of Chicago Press. Olson, S. M. (1984). Clients and lawyers: Securing the rights of disabled persons. Westport, CT: Greenwood Press. Pedriana, N. (2006). From protective to equal treatment: Legal framing processes and transformation of the women’s movement in the 1960s. American Journal of Sociology, 111(6), 1718–1761. Pellow, D. N. (2001). Environmental justice and the political process: Movements, corporations, and the state. Sociological Quarterly, 42, 47–68. Piven, F. F., & Cloward, R. (1978). Poor people’s movements. New York: Pantheon. Polletta, F. (2000). The structural context of novel rights claims: Southern civil rights organizing, 1961–1966. Law and Society Review, 34, 367–407. Roberts, J. T., & Toffolon-Weiss, M. M. (2001). Chronicles from the environmental justice frontline. New York: Cambridge University Press.

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Rosenberg, G. (1991). The hollow hope. Chicago: University of Chicago Press. Scheingold, S. (1974 [2004]). The politics of rights: Lawyers, public policy and political change. New Haven: Yale University Press. Schneider, E. M. (2000). Battered women and feminist lawmaking. New Haven, CT: Yale University Press. Schwab, J. (1994). Deeper shades of green: The rise of blue-collar and minority environmentalism in America. San Francisco: Sierra Club Books. Skrentny, J. D. (2006). Policy-elite perceptions and social movement success: Understanding variations in group inclusion in affirmative action. American Journal of Sociology, 111(6), 1762–1815. Snow, D. A., & Benford, R. D. (1992). Master frames and cycles of protest. In: A. D. Morris & C. M. Mueller (Eds), Frontiers in social movement theory. New Haven: Yale University Press. Szasz, A. (1994). Ecopopulism: Toxic waste and the movement for environmental justice. Minneapolis: University of Minnesota Press. Taylor, V., & Van Dyke, N. (2004). ‘Get up, stand up’: Tactical repertoires of social movements. In: D. A. Snow, S. A. Soule & H. Kriesi (Eds), The Blackwell companion to social movements. New York: Blackwell Publishing.

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PART II GENERAL ARTICLES

LEGALIZING PUBLIC REASON: THE AMERICAN DREAM, SAME-SEX MARRIAGE, AND THE MANAGEMENT OF RADICAL DISPUTES$ Keith J. Bybee and Cyril Ghosh ABSTRACT Beginning with Rawls’s claim that the Supreme Court is the exemplar of public reason, we develop a theory of how reasoned arguments are used in political disputes. We argue that justices often make piecemeal arguments and that this fragmented style of argumentation extends beyond the bench. The result is that many political disputes are ‘‘legalized’’ – not because public arguments are necessarily about laws, but because public arguments often unfold in the same ambiguous way that they do on the Court. We illustrate our argument by examining the use of American Dream talk in the dispute over same-sex marriage (SSM).

$

Both authors contributed to the chapter equally. The ordering of author names here is alphabetical and is not an indication of primary/secondary authorship.


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What role does reasoned argument play in politics? In The Federalist Papers, Alexander Hamilton argued that public reason is often undermined by the basic elements of political life. ‘‘Ambition, avarice, personal animosity, party opposition’’ are motives that drive parties on both sides of any given debate, warping arguments to suit the passions and interests of the advocates. Even if we somehow manage to filter out impure motives, Hamilton noted, reasoned argument will still be beset by ‘‘the honest errors of minds led astray by preconceived jealousies and fears.’’ ‘‘So numerous indeed and so powerful the causes which serve to give a false bias to the judgment,’’ Hamilton argued, ‘‘that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society’’ (Hamilton, Madison, & Jay, 1961, p. 34). The dim possibilities for reasoned politics envisioned by Hamilton grow even darker when we consider political conflicts between parties separated by starkly different frames of reference. Conflicts between people who inhabit different social worlds – people who have very different moral, psychological, and philosophical standards for evaluating facts and claims – are radical disputes in which contending parties have ‘‘almost no common premises and very little common language’’ (Luker, 1984, p. 2). Reasoned argument, already weakened by the passions and interests of ordinary politics, would seem to be entirely overmatched in the context of clashing worldviews. And yet, there are many who claim that reasoned argument plays a central role in political life. Hamilton cast doubt on the efficacy of public reason, but he did so in the course of making an extended series of reasoned arguments in favor of the newly proposed constitution. More recently, radical disputes like those over abortion have attracted the attention of scholars who have insisted that even the most profound political divides can be bridged by reasoned argument (cf. Gutmann & Thompson, 1998). When it comes to public reason, it would seem that there is cause for both hope and despair. In this chapter, we take up the question of public reason’s role and develop a theory of how public reason is deployed to manage political disputes. We argue that in practice public arguments are often ambiguous and incompletely theorized. Such arguments organize the ground on which the public may either flourish or flounder. That is, ambiguous arguments at once present the opportunity for resolving disputes (though this opportunity is somewhat different than the dispute-resolving opportunities presented by formally organized, logically impeccable ‘‘public reason’’) as well as create the possibility for perpetuating disputes (producing the mere re-packaging of disagreement rather than a basis on which genuine consensus may occur).

Legalizing Public Reason

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To illustrate our thesis, we select the same-sex marriage (SSM) debate and demonstrate how an ambiguous and incompletely theorized set of arguments about national ideals, particularly the ideals of the American Dream, (i) characterize much of the debate over SSM and (ii) offer an as-ofyet-unrealized possibility of bridging the divide between the various contending parties in this dispute. The chapter proceeds in three parts. In Part I, we begin with John Rawls and his famous claim that the U. S. Supreme Court is the exemplar of public reason. We agree that the high bench provides a model of reasoned argument, but we disagree with Rawls about the kind of reasoned argument in which members of the Court engage. Drawing on the work of Charles Lindblom, Edward Levi, and Cass Sunstein, we argue that judicial reasoning is actually often piecemeal and ambiguous, without developed premises or well-specified conclusions. This fragmented, ambiguous reasoning employed by the Court may point beyond itself, promoting deliberation as actors attempt to work out the issues left unsettled in judicial opinions. Such deliberation is a possibility, not an inevitability. We recognize that unfinished, ambiguous reasoning of Court decisions may not lead to fruitful discussion and substantive agreement. In that case, then, the Court will have produced piecemeal decisions that do not point beyond themselves. Without stimulating further deliberation, ambiguous and incomplete judicial decisions are problematic: they can be seen as unpredictable (in the sense that judicial rulings do not logically vindicate pre-existing principles) and partial (in the sense that decisions remain limited to the shifting distribution of interests on the bench). In the absence of supplementary discussion and debate to refine and develop the terms of judicial decisions, the Court’s muddled public reasoning will remain a muddle. With a clear sense of how incompletely theorized judicial reasoning may shape the terms on which debate is organized and conducted, we then ask if this model extends beyond the judiciary and into the public domain. What would be necessary for ordinary citizens to pursue the promise and risk the pitfalls of judicial-style argumentation? And what sort of ‘‘public’’ would the reliance on such arguments produce? We hypothesize that the broad use of ambiguous forms of reasoning will require, at minimum, some baseline commonalities among disputants that provide the raw material for making piecemeal and partial claims. Moreover, we hypothesize that the reliance on ambiguous arguments will organize the public on terms that not only offer the opportunity to unite an enormous range of political meanings but also present the possibility that serious rifts between groups will be preserved and entrenched.

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In Part II, we begin by demonstrating that baseline commonalities among disputants may be found even in the context of heterogeneous polities divided by radical disputes. Focusing on the case of the United States, we note that the American polity routinely identifies itself as a nation of believers in the values of the American Dream (Citrin, Haas, Muste, & Reingold, 1994; Hochschild, 1995; Cullen, 2003; Jillson, 2004; Schildkraut, 2007; Ghosh, 2008). Most Americans believe that those who work hard should succeed. In addition, they also believe that the quintessential feature of being American is to do better in life than some earlier stage. One of the core elements of the American Dream is the idea of a level playing field. Most Americans hold steadfastly to the belief that under conditions of equal opportunity, an individual can go as far as their talents will take them (Hochschild, 1995). To be sure, the Dream is ambiguous and incompletely theorized, even to the point that it is extremely difficult to articulate an exact definition of the Dream. Yet, the Dream persists among a diverse group of Americans as a shared set of national ideals. Can the national values of Americans, as expressed in the American Dream, be a form of incompletely theorized reasoning that replaces highly organized, logically consistent ‘‘public reason’’ when parties are engaged in a radical dispute? That is, can shared ideals – even if they are the ambiguous ideals of the American Dream – offer a language or a medium that enables parties to a radical dispute to talk to each other? If so, then what sort of public is generated when political disagreements are conducted in the uncertain, incompletely defined idiom of American Dream talk? We address these questions in Part III by turning to the case of a real-world radical dispute: the debate over SSM. We argue that this dispute is indeed a radical one, with the contending parties separated by very different views about the meaning and value of sexuality and family. We find that on both sides of the dispute, parties formulate arguments about SSM in the incomplete and ambiguous terms of the American Dream, creating a public that is at once capable of broad agreement and enduring division. More specifically, we submit that the partial, unfinished nature of American Dream arguments offers a vocabulary for the parties to this dispute to communicate with each other and proceed toward some resolution of the conflict that coheres with the American Dream values they cherish. But we also warn that the shared use of American Dream does not in and of itself bring disputants any closer to reasoned consensus. Without joint deliberation that seeks to agree on a single, more complete understanding of the American Dream, the joint invocations of the same ambiguous claims simply provide a means by which partisans may continue to talk past one another. It is precisely this

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kind of piecemeal reasoning without consensus that has permeated the contemporary debate over SSM to date. We conclude by briefly considering what might help move this debate toward deeper agreement.

PART I Public Reasoning as Judicial Reasoning The most exhaustive account of public reason as the mechanism for resolving radical disputes is John Rawls’s Political Liberalism (Rawls, 2005). The use of public reason, according to Rawls, will lead to an ‘‘overlapping consensus’’ that will trump all sorts of conflicts involving reasonable comprehensive doctrines held by disparate communities. This consensus stems from a ‘‘freestanding political conception of justice,’’ which is itself not reducible to any one of the comprehensive conceptions in the polity. Rawls famously identified the U. S. Supreme Court as the central, functioning source of reasoned argument in American politics.1 For Rawls, the Court, by virtue of its principled working out of higher law, is the exemplar of public reason. The members of the Court do not always agree as they reason; nor do they always do a good job of reasoning in every case. Yet, public reason is what the Court does. Indeed, according to Rawls, public reasoning is the only kind of reasoning the Court can legitimately do and it forms the basis of the Court’s authority. The Court is, Rawls writes, ‘‘the only branch of government that is visibly on its face a creature of [public] reason and of that reason alone’’ (p. 235). It is ‘‘the task of the justices to try to develop and express in their opinions the best interpretation of the constitution they can, using their knowledge of what the constitution and constitutional precedents require’’ (p. 236). In carrying out this task, the justices must ‘‘justify by public reason why they vote as they do’’ as well as ‘‘make their grounds consistent and fit them into a coherent constitutional view over the whole range of their decisions’’ (p. 235). We follow Rawls and treat the Court as enacting a model of public reason. The Court occupies a unique position in our politics: it strives to reason about the most controversial issues in our society in terms that are not reducible to the ideology of any one party or group. The Court takes up political questions but does not give them partisan answers. In important respects, the Court supplies the central template for how to reason about conflict in ways that are responsive to the values that all citizens may reasonably be expected to endorse.

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We do not follow Rawls, however, in our understanding of how the Court reasons. Rawls emphasizes the judicial duty to craft ‘‘the best interpretation of the constitution,’’ and, in doing so, Rawls seems to suggest that the justices will produce fully articulated judicial arguments that move from welldeveloped premises to well-considered conclusions.2 In his emphasis on principled argument, Rawls echoes the conventional understanding of judicial action. According to the conventional view, judicial decision-making is meant to be rooted in the clear articulation and neutral application of general principles (Peretti, 1999, pp. 11–35).3 Jurists may disagree about the origin and content of these general principles. In whatever way they are understood, however, the principles are taken to be of primary importance. Judges should strive to assimilate each dispute into a principled order, articulating a framework of rules and standards capable of regulating subsequent judicial decisions (Wasserstrom, 1961, pp. 14–22). In the ideal case, the principled legal order makes judicial action perfectly reasoned and predictable: every legal outcome is reached by the logical application of preexisting rules and standards to each new fact situation. Moreover, within such an ideal system, the exercise of judicial power is restrained and impartial: court decisions do not depend on the private whim or bias of the judge presiding over the case but on a publicly known set of legal principles.4 We take a different approach. Our argument is not that the justices attempt to craft principled arguments and sometimes fall short. Instead, drawing on the work of Charles Lindblom, Edward Levi, and Cass Sunstein, we claim that members of the high bench are often not attempting to work out fully principled arguments in the first place. Thus, the Court models a kind of public reason quite different from what Rawls and the conventional view of judicial decision-making would lead one to expect.

Judicial Reasoning as Incompletely Theorized Agreements To begin, consider the opinions written by the now-retired Justice Sandra Day O’Connor. For much of her time on the high bench, Justice O’Connor sat in the center of the Supreme Court’s ideological spectrum, a position that made her views decisive in controversies ranging from abortion to affirmative action. O’Connor generally used her swing position to forge a narrow path. She routinely restricted her rulings to the facts of the case at hand, reaching results that resolved specific aspects of the dispute while leaving broader legal questions open (Maveety, 1996). Instead of adhering to a comprehensive jurisprudential theory or overarching constitutional


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vision, she tended to fashion her opinions around limited cores of agreement, blurring hard-edged principles for the sake of limited solutions. O’Connor moved from decision to decision pursuing small-scale settlements rather than seeking sweeping conclusions. O’Connor is not the only justice in the history of the Supreme Court who might be described as following a path of piecemeal argumentation (Jefferies, 1994). And the practice of such argumentation goes well beyond individual justices. Although it is not true of all judicial opinions, it is the case that many judicial opinions appear to be fragmented, ramshackle affairs cobbled together to dispose of the case at hand. Indeed, judicial decisions often look less like exemplars of careful justification than like the choices a person makes when picking out a midnight snack from whatever looks good in the refrigerator (Carter, 1985, p. 22). Courts are not, of course, limited to deciding cases in this way. It is true that judges do sometimes produce fully articulated decisions that match the standards that Rawls and the conventional view of judicial reasoning endorse. Even so, there are many exceptions and that suggests a question: Why would judges reason in such a fragmented and incomplete way? The political scientist Charles Lindblom suggested an answer nearly fifty years ago (Lindblom, 1988a). In theory, Lindblom observed, policymakers are expected to formulate plans in a comprehensive fashion, clearly identifying their objectives and carefully comparing every alternative means of action. Yet, in practice, Lindblom argued, comprehensive policy formulation is almost never performed. Policymaking cannot begin with the ranking of goals because the necessary consensus on political ends usually does not exist and cannot be manufactured. With high-level agreement practically impossible, policymakers seek agreement on a more concrete plane: they limit their attention to policy alternatives that differ only slightly from the status quo, thereby reducing debate to a narrow set of marginal comparisons. Rather than developing a comprehensive account of the best policy option, policymakers simply muddle through, making whatever limited judgments the prevailing conditions of incomplete information and partial agreement will allow. According to Lindblom, policymaking decisions do not flow strictly from the logical application of pre-existing principles – a result that falls far short of meeting the expectations for principled reasoning that are shared by Rawls and the conventional understanding of judicial decision-making. The problem here is, as Lindblom suggests, with the expectation that principled reasoning will always be performed.5 Policymakers often cannot deal with uncertain, conflict-laden issues except by muddling through them, regardless of what others might expect policymakers to do.

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In this vein, one could argue that piecemeal judicial opinions are frequently the only effective kind of judicial decisions possible under conditions of disagreement and limited information. Members of the bench may try to ignore such political limits, and, in doing so, they may consistently strive to apply general principles to concrete controversies. But decisions that ignore political context are unlikely to be actual successes (Rosenberg, 1991). If judges want to be (and understand how to be) effective, they will see that judicial action is bound up with political circumstance. When the political context is fragmented and in flux, the conventional ideal of principled judicial decision-making will be put aside for the sake of acceptable settlements, as the practical task of resolving disputes crowds out the aspiration for carefully reasoned legal judgment. As Edward Levi once put it, ‘‘The pretense is that the law is a system of known rules applied by a judge y [Yet in] an important sense legal rules are never clear, and if a rule had to be clear before it could be imposed, society would be impossible’’ (Levi, 1949, p. 1). If one considers judicial action as an exercise in the logical application of general principles to specific controversies, then any judicial process that proceeds from one ambiguous decision to another is a disaster. But, as we have suggested, there are reasons to believe that consistency and completeness are not the standards against which the judicial process should be measured in the first place. Although it may lack logical elegance and rigor, a legal system in which the rules are incomplete and in flux is ‘‘the only kind of system which will work when people do not agree completely’’ (Levi, 1949, p. 104). Indeed, the case for incomplete reasoning by judges may be strongest at the level of the Supreme Court – the very institution that Rawls deemed the principal exemplar of public reason. As Cass Sunstein notes, the issues before the Court are often deeply controversial, with no clear consensus on how to proceed and contradictory information on the consequences of alternative approaches. Mired in disagreement and uncertainty, members of the Court may find it difficult to reach consensus on comprehensive conclusions. Even if judicial consensus can be achieved, sweeping decisions may be nothing more than stabs in the dark that yield unintended and unfortunate consequences. The high cost of reaching broad agreement, coupled with the risk of making blunders, leads members of the Court to incremental rulings – a practice Sunstein calls ‘‘decisional minimalism’’ (Sunstein, 1999, p. 4; see also Sunstein, 1996). Hobbled by conflict and poor information, the minimalist justices choose to forego the forced resolution of fundamental issues and to settle instead for agreement on a few particulars. Judicial minimalism is valuable, Sunstein argues, because it facilitates political accommodation on


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the Court in times of conflict and uncertainty. Instead of seeking broad settlements, the minimalist members of the Court ‘‘ask that decisions be narrow rather than wide. They decide the case at hand; they do not decide other cases too, except to the extent that one decision bears on other cases, unless they are pretty much forced to do so’’ (Sunstein, 1999, p. 10, emphasis original). Moreover, minimalist justices ‘‘generally try to avoid issues of basic principle. They want to allow people who disagree on the deepest issues to converge. In this way they attempt to reach incompletely theorized agreements’’ (Sunstein, 1999, p. 11, emphasis original). Minimalists thus serve the ‘‘great goal’’ of a free society, ‘‘making agreement possible when agreement is necessary, and making agreement unnecessary when it is impossible’’ (Sunstein, 1999, p. 50). As Sunstein argues, incomplete judicial decisions are not only a result of the Court’s adaptation to conditions of uncertainty and conflict but also a potential means for creating the ground on which uncertainty and conflict may be overcome. Political actors may accept narrow, thinly justified judicial decisions because such decisions create a flexible framework in which political argument can continue to unfold (Henderson, 2008). It remains true, of course, that in any given legal dispute, each party will prefer a ruling in its favor. And it is also true that, in any given decision, the Court will in fact declare one party the winner. But the Court often does so by leaving many dimensions of the dispute open and the principled underpinning of the opinion incomplete. As a consequence, the Court rewards victorious litigants with less than they might have won and divests defeated litigants of less than they might have lost. Both winner and loser might have done better, but they also could have done worse. Moreover, both winner and loser are left with a flexible legal framework that over time can be invoked to meet different demands, adapted to address developing disputes, and called upon to mobilize political action. In this way, the ambiguous, fragmented decision that the Court develops in response to its own confrontation with disagreement may end up creating new opportunities for reasoning toward consensus.6 The above-described sequence will unfold, of course, only if piecemeal decisions actually do in fact stimulate deliberation. Without deliberation developing and refining the terms of ambiguous judicial decisions, these decisions remain localized responses to specific conditions of disagreement, merely temporary settlements dependent on the parties in the case and the justices on the bench. Such results may pacify disputants in the short term – and this may be all the Court can do under the circumstance that it operates. Yet, without deliberation, judicial decisions will not lead to the development

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of principled agreement capable of producing lasting resolutions of conflicts. Reasoning will be on display, but no consensus will be produced. Another way of putting this is to say that ambiguous judicial decisions present particular options for how ‘‘the public’’ debating those decisions is to be formed (cf. Fraser, 1992; Warner, 1992, 2002). The Court typically justifies its authority in terms of its capacity to speak for the people as a whole. In offering such justifications, the Court is not acting as a simple agent, responding to the demands of a pre-existing constituency. On the contrary, the Court is behaving as a kind of entrepreneur, actively helping to create the constituency on whose behalf the Court itself then claims to speak (Bybee, 1998). Thus, in casting its decisions in ambiguous and piecemeal terms, the Court can be said to open possibilities for ‘‘a public’’ to organize as either a deliberative body moving toward reasoned consensus or as a fractured assemblage speaking a common language yet unable to bridge enduring divisions. Of course, for the purposes of this chapter, our principal interest is not in the Court’s reasoning in and of itself. Instead, our goal is to consider whether the Court’s model of incompletely theorized reasoning extends into the public domain of democratic deliberation. A court may allow parties with deep differences to converge by issuing narrow, incremental decisions that everyone can live with: ‘‘making agreement possible when agreement is necessary, and making agreement unnecessary when it is impossible.’’ For such a form of dispute management to work more broadly, disputants need to agree wherever possible (such as in the case of commonly held ideals and values) and implicitly refrain from addressing those issues where agreement seems impossible (such as ideals and values that are radically groupspecific). Thus, disputants have to agree to a set of baseline values that each of them can and does adhere to, even though they are aware of their disagreements with other parties about values and ideals that are specific to their group. Such an agreement would necessarily be limited and amorphous, unlike Rawls’s elaborately worked-out ‘‘principles of justice.’’ Arguments would be expressed in incomplete, messy, and not fully reasoned terms, creating a muddle of common talk that co-exists with conflict about larger differences. Such argumentation may potentially spawn two very different kinds of publics: one marked by joint deliberation and the other distinguished by its members’ capacity to talk past one another. We contend that the conditions necessary for the use of incomplete and ambiguous reasoning by the people prevail in contemporary America. That is, there is in the American polity a common set of values and a set of radical disputes that defy the methods and rules of textbook public reasoning.

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In Part II, we begin with a discussion of the ‘‘American Dream’’ – a set of highly flexible ideals that ‘‘make agreement possible’’ because they are shared by a majority of Americans. We extend our discussion in Part III, where we examine the SSM debate and consider the ramifications of appealing to the American Dream in radical disputes like SSM. Here, we consider the different publics that American Dream talk may engender.

PART II American Dream as National Identity Americans constitute a community of people who share the same ideals about American political culture (Huntington, 1981). They have always ‘‘imagined’’ (the term is Benedict Andersen’s (1983)) themselves as a community, not in terms of race, ethnicity, language, and religion (although, at various points, these elements of national identity have been important for some groups in the United States) but, instead, in terms of a ‘‘civil religion’’ (Bellah, 1967; Wilcox & Larso, 2006; Fowler, Hertzke, Olson, & Den Dulk, 2004). Bellah (1967) has clarified the concept of civil religion by pointing out how religion is always a background condition in American public life. It ties the nation to a higher purpose that echoes John Winthrop’s call to create a ‘‘city upon a hill’’ in America,7 ‘‘a promised land,’’ an ‘‘American Israel,’’ a ‘‘beacon of hope’’ for the rest of the world, where everyone is free – in general – but particularly free to pursue the religion of their choice. In this sense, the national purpose is divine, although it is not associated with any particular form of divinity, institutionalized religion, or even any given, specific, God. For Bellah, this American civil religion derives from the ‘‘words and acts of the founding fathers’’ and is expressed in a ‘‘set of beliefs, symbols, and rituals’’ that symbolize the ‘‘religious dimension for the whole fabric of American life’’ (Bellah, 1967). Thus, a set of values characterize American national identity. This set of values is best represented in the contemporary notion of the American Dream, which encompasses individualism, equal opportunity, and the idea of ‘‘success’’ (Hochschild, 1995; Cullen, 2003; Jillson, 2004; Ghosh, 2008). Various surveys, questionnaires, and interviews have routinely testified to the fact that most Americans, regardless of what socioeconomic locus they occupy, believe in – or demonstrate a fondness for – the dicta of the Dream (Hochschild, 1995; Scott & Leonhardt, 2005; Cullen, 2003; Jillson, 2004; Citrin et al., 1994).

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Framing American national identity in terms of the American dream is, therefore, predicated upon assuming a liberal ‘‘consensus’’ in America (Hartz, 1955). This account has its critics, particularly among classical republicans (Bailyn, 1967; Wood, 1969; Pocock, 1975) and communitarians (Sandel, 1982). Rogers Smith (1993, 1997) has felicitously argued in favor of not relying on the false dichotomy between civic republicanism and a ‘‘liberal consensus’’ approach and made a persuasive case for looking at American political culture through the ‘‘multiple traditions’’ lens, which enables us to see that a range of different civic ideals have coexisted in the United States, and that some of these have included a variety of inegalitarian and exclusionary norms and practices. Yet, despite these critiques, a number of scholars have reaffirmed liberalism’s continuing relevance in American politics (Kloppenberg, 1987; Kramnick, 1990; Appleby, 1976, 1992; Huyler, 1995; Dienstag, 1996; also see Huntington, 1981; Greenstone, 1993; Lipset, 1996). Schildkraut (2007) has discovered that a ‘‘broad range of constitutive norms define being American,’’ thus confirming that ‘‘multiple traditions’’ (Smith, 1997) inform national identity in the United States. She thereby documents an account of American national identity that counters other studies that point out the pervasive influence of liberalism in the United States (Citrin et al., 1994; Feldman, 1988; Lipset, 1963; McClosky & Zaller, 1984). Yet, although these multiple traditions do exist, favorable dispositions toward the values of the American Dream are ubiquitous in America. For instance, in 1994, Citrin et al. reported: ‘‘The pervasive agreement that getting ahead on one’s own is important in making one a ‘true American’ reflects the country’s persistent cultural emphasis on individual achievement. Polls typically show that two-thirds of both white and black Americans believe that hard work will lead to success and that people should strive hard to get ahead’’ (Citrin et al., 1994, p. 14). Belief in the ideal that hard work will lead to success is pervasive in America. It traces its roots back to the founding values of the nation (Ghosh, 2008) and in the Puritan injunction to work hard and dedicate oneself to one’s ‘‘calling’’ (Weber, 2002; Tawney, 1926; Poggi, 1983; Morgan, 1965; Marshall, 1982; Dunn, 1969). Diverse accounts of the Dream exist (Adams, 1931; Tebbel, 1963; Nackenoff, 1994; Hochschild, 1995; Cullen, 2003; Jillson, 2004), but few offer a comprehensive disambiguation of this incompletely theorized concept. One definition of the Dream is: Ceteris paribus, the American Dream is the belief or hope that in America every individual possesses (or ought to possess) an equal opportunity to succeed in life, regardless of how she defines success for herself. (Ghosh, 2008)


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This definition captures the ‘‘deep structures’’ (Frohock, 1978) of the Dream but refuses to stipulate the exact nature of the individualism, equal opportunity, and success that are celebrated in the American Dream. Indeed, each of these terms admits of multiple interpretations. This particular characteristic of the American Dream – that its constitutive elements can accommodate a diverse range of meanings – disallows any complete theorization of the concept. The American Dream is, therefore, always an ambiguous set of ideals that nonetheless represent some of Americans’ core beliefs. Political leaders have dramatically increased their use of the rhetoric of the American Dream in late twentieth-century America in part because Dream rhetoric can serve the politically useful purpose of bridging divides between groups (Ghosh, 2008). The Dream offers a universal promise of democratic inclusion that addresses contemporary America’s growing heterogeneity, particularly during the past four decades – a period marked by the ascendance of identity politics and open immigration. Its constitutive elements – individualism, equal opportunity, and success – are each open to rival interpretations, which make the Dream appealing for most people irrespective of their ascriptive identities and ideological predilections, thus making the Dream an ideal candidate for a rhetoric of inclusion (particularly since 1965) in the aftermath of the civil rights, feminist, and gay rights movements and in a period characterized by open and liberalized immigration policies. Consider some of the multiple interpretations that may be given to each of these elements: Individualism ranges from atomistic to moral individualism to individuality, which emphasizes autonomy and creativity; belief in equal opportunity implies the affirmation of both level starting points and equal outcomes; success, too, is open to plural interpretations including but not limited to material success, celebrity status, and even living in the suburbs. In addition, success can be private or public, in the sense that when political leaders speak of success, they might refer to the success of the individual (as in, say, upward mobility or immigration) or they might choose to refer to the success of the collective (as in, say, widespread opportunities, suburban bliss, abundance, etc.) (Ghosh, 2008). These ambiguities make the Dream sufficiently flexible for a wide variety of groups to find the Dream attractive because they supply each group with something they can find appealing about the Dream although they might reject competing interpretations of the Dream. Thus, the American Dream provides some baseline commonality of ideals that most Americans share.

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For our purposes, we are interested in finding out the following: When it comes to management of radical disputes, does adherence to the ideals of the American Dream translate into ‘‘making agreement possible when agreement is necessary, and making agreement unnecessary when it is impossible’’? That is, do parties to a radical dispute actually frame their arguments by drawing from this shared set of values that everyone can, and wants to, live with? If this is the case, then we can conclude that there is some hope of dispute management – even in radical settings – that uses a shared set of incomplete and partially theorized set of ideals as a shared language to frame arguments. To examine whether this is what, in fact, goes on in the real world of radical disputes, we now turn in Part III to our case study: the SSM debate that has polarized the American electorate in recent years.

PART III The Same-Sex Marriage Debate as a Radical Dispute Radical disputes are disputes among constituencies divided by deep differences that relate to their comprehensive beliefs about their sense of self and their purpose in this world (Luker, 1984). Typically, such deep differences are animated by constituencies’ religious beliefs (Frohock, 2006; Owen, 2001; Fish, 1997a, 1997b). What makes these differences deep is the seemingly non-negotiable nature of the core beliefs of the contending parties. Examples of these deep differences include belief in the practices of animal sacrifice in religious ceremonies, veiling, female genital mutilation, and abortion. Giving up on such practices constitutes, for these parties, giving up an important sense of their self and, therefore, a major loss of their identity and indeed their reason for being. There is evident disagreement about SSM in the United States today. Indeed, most opinion polls indicate that substantial numbers of Americans have preferences both for and against SSM. That is, neither support nor hostility toward SSM is a fringe opinion. For instance, a June 2008 CBS poll shows that although Americans’ views on gay marriage are changing, they nonetheless remain polarized around this issue. Most Americans think there should be some form of legal recognition for same-sex couples. Yet, about 30% think this recognition should be in the form of SSM while about 36% think there should be no recognition at all for gay and lesbian couples (CBS News, 2008). According to a May 2008 poll conducted by the Pew Research


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Center, 49% of Americans are against SSM while 38% favor gay marriages (The Pew Research Center, 2008). A Quinnipiac University Polling Institute national poll released in July 2008 indicates that ‘‘given three choices, 32 percent of American voters say same-sex couples should be allowed to marry while 33 percent support civil unions for same-sex couples and 29 percent say there should be no legal recognition for same-sex couples’’ (Quinnipiac University, 2008). To be sure, diverse opinions about SSM circulate and not everybody is determinedly for or against SSM. There are, for example, those who are critical of the institution of marriage itself for reasons including the preservation of patriarchy in marriage, materialist feminism, privatization of the costs of social reproduction, and asymmetrical sexual division of labor (Boyd, 1999; Josephson, 2005). In line with this kind of thinking are those advocates who wish to ‘‘queer’’/destabilize lesbian, gay, bisexual, transgender identity rather than fall in line with the ‘‘heteronormative’’ institution of marriage (Bower, 1994; also see Fraser, 1995; Butler, 1990). Yet, even though it is the case that not all views in this area can be boiled down to a simple set of either-or distinctions, it is simultaneously the case, as polls show, that for those who have an opinion on the subject of SSM (about two-thirds of all Americans), the dispute remains intractably divided between opposed positions. We are explicitly concerned here with the management of radical disputes and therefore focus on the pro and con parties to the SSM debate. Once we concentrate our attention on this pro-con divide, we can see that the disagreement over SSM is even deeper than the poll numbers suggest. There is the sort of moral outrage (Morone, 2003, p. 4) in the debate that has marked ‘‘clash of cultural values’’ disputes throughout American history. Anti-SSM advocates argue that SSM will lead to society’s ruination, while pro-SSM advocates argue that denying SSM is a constitution-killing civil rights violation. In other words, for interested parties, the SSM debate is a radical dispute. More specifically, the SSM debate is a radical dispute because in it disputants start from entirely different premises about the meaning and purpose of marriage, sexuality, and family. Consider, first, the views of the opponents of SSM. Gerstmann (2008, pp. 21–47) has pointed out that there are four general categories of reasons that deny SSM: definition, tradition, and religion; natural law; the equation of marriage with procreation and child rearing; and moral disapproval of homosexuality and the question of government endorsement (cf. Cohen, 2004).8 For some of these opponents of SSM, the definition of marriage is entirely non-negotiable. It is

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necessarily an institution that represents a union between a man and a woman. According to some, particularly those who draw from natural law theory, this union represents two lives that are conjoined around the biological function of reproduction, friendship, and a sense of community between a man and a woman (Finnis, 1994, 1997; Lee & George, 1997). Without an insistence on such a reproduction-oriented view of marriage, these groups are unable to make sense of what marriage could possibly mean. Others view SSM as an assault on the traditional family structure. They are appalled at the suggestion that what they view as aberrant sexual behavior might be given recognition and legitimacy through a radically new and inclusive definition of marriage (The Center for Public Justice, 2003; Dobson, 2007). Those who invoke tradition as an argument against SSM claim that traditional ways of life posit marriage as heterosexual, and therefore, SSM is intolerable (Duncan, 1994; Dupuis, 2002; also see Hull, 2006; Rimmerman & Wilcox, 2007). Finally, religious arguments against SSM stem from a condemnation of homosexuality itself and submit that any homosexual behavior is inherently immoral (The Pew Forum on Religious and Public Life, 2008). SSM, on this view, is out of the question, given that homosexual behavior itself goes against the Scriptures and the word of a Judeo-Christian God (American Family Association, 2003–2005; Wildmon, 2004). Proponents of SSM deny each one of the claims made by SSM opponents. Although most of these assertions in this back-and-forth debate admit of some form of reasoning based on evidentiary rules, the assertions at their very core represent a set of beliefs that opponents to SSM have and proponents of SSM deny. At the end of the day, both parties speak without the use of reason, particularly as reason is celebrated in Rawls. Indeed, most disputants do not seek evidence to be persuaded about what they already claim to know and believe about SSM. Denying the legitimacy of anti-SSM arguments, some advocates of SSM argue that marriage is a right to a contract that should be granted to all mutually consenting couples. Others argue that it is more than a right and that it is a celebration of same-sex couples’ love and commitment for one another and social and cultural recognition (Pinello, 2006; Hull, 2006). On such a view, a denial of the right to marry to any two individuals who are in love, and are committed to being with each other for their entire lives, is incomprehensible. Pro-SSM activists avoid stipulating the gender identity of the parties to a marriage contract and refrain from talking about the biological function of reproduction as essential to marriage. For them, marriage is not necessarily


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a union between a man and a woman. Against the reproduction and ‘‘biological unity’’ view of marriage, proponents of SSM argue that this narrow, tenuous claim is insupportable because a range of marriages do not admit of the possibility of reproduction for a variety of reasons including physical barriers between partners (such as in the case of marriages where one contracting party is in prison), or incapacity (as in the case of older couples who are incapable of being sexually active), or even infertility (cases where one of the partners to a marriage is infertile). Furthermore, given their core beliefs about the meaning and purpose of marriage, some of these advocates are entirely unable to see why reproduction and heterosexual, procreative acts should be an essential component of marriage. In addition, these advocates of SSM do not adhere to the ‘‘tradition’’ argument against SSM and claim that just because something has been a tradition does not mean it is also legitimate. For them, even if marriage has been exclusionary in the past, there is no reason for it to remain so in the future. Thus, there are deep differences between proponents and opponents of SSM about the meaning of marriage, sexuality, and family. Given these deep differences, it is not surprising to find that they often talk past one another and do not use the language of public reason that is celebrated in Rawls to arrive at a resolution of the conflict. In other words, these disputants do not behave ‘‘reasonably’’ with respect to each other. They assume their respective positions to be so fundamentally different that resolution appears to be impossible. Under these circumstances, the only way out of the impasse, for most, seems to reside in coming up with some way to stamp out the antagonistic party’s beliefs by fiat. Thus, as far as their understanding of the meaning and purpose of marriage is concerned, each side views its position as non-negotiable. Under such circumstances, democratic deliberation and public reason is unlikely to yield resolutions to the conflict as ‘‘overlapping consensus’’ is the last thing one expects to find among these radical disputants. Oddly, therefore, public reason fails exactly where it is most necessary. Is there another form of reasoning, even if it is partial and incomplete, that might serve as a medium to arrive at resolutions that parties to this dispute could live with? As pointed out above, this will require some baseline agreement among contending parties with regard to certain ideals. One such set of ideals, about which most Americans agree, is the American Dream. Given the fact of a broad consensus about the Dream, we are interested in examining how this consensus might inform the radical SSM debate and whether or not any possibility of resolution might exist in that sphere of ambiguous reasoning.

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Same-Sex Marriage Disputants and the Ideals of the American Dream In each side of the dispute, some members rely on the tenets of the American Dream to articulate their positions. To be sure, these are not the only voices present. Yet, two features of the American Dream remain particularly relevant to the SSM debate. The first is the Dream’s explicit relationship with social and racial justice and inclusion (Hochschild, 1995; Hochschild & Scovronick, 2003; also see Cullen, 2003; Jillson, 2004; Ghosh, 2008); this particular American Dream trope permeated the rhetoric of Reverend Martin Luther King Jr., culminating most famously in his ‘‘I Have a Dream’’ speech. According to King: ‘‘We are simply seeking to bring into full realization the American Dream – a Dream yet unfulfilled. A Dream of equality of opportunity, of privilege and property widely distributed; a Dream of a land where men no longer argue that the color of a man’s skin determines the content of his character’’ (King, quoted in Cullen, 2003, p. 126). The second attribute relevant for this discussion is the Dream’s insistence on a level playing field (Hochschild, 1995; Hochschild & Scovronick, 2003; also see Cullen, 2003; Jillson, 2004; Ghosh, 2008). The Dream is agnostic about the specific identity of the individual. America, the Dream insists, offers, or should offer, a level playing field to absolutely any individual, regardless of her identity, to achieve some form of success. Opportunities, on this view, are widely and equally distributed and nobody is left out or discriminated against, on the basis of their identity, some inherited characteristic, or accident of birth. Among believers in the American Dream, anyone appearing to be accorded special treatment is looked down upon because they violate the very notions of fairness and justice the American Dream celebrates. Americans of virtually any political persuasion agree on the ideal of a level playing field. It is the abiding metaphor of American political life. Many proponents of SSM draw directly on the American Dream’s relationship to social and racial inclusion, comparing SSM with the Civil Rights movement and analogizing the denial of marriage rights to lesbians, gays, bisexuals, and trans-people (henceforth, LGBTs) with Jim Crow laws and the proscription of interracial marriage (outlawed in Loving v. Virginia 1967) (Strasser, 2004; Chauncey, 2004; Eskridge, 2002; Goldberg-Hiller, 2002; Bonauto, 2003). This view is reaffirmed in the Goodridge decision, which cites the creation of ‘‘second class citizens’’ in reaching its conclusions. The court in this case held that the Massachusetts Constitution ‘‘affirms the dignity and equality of all individuals,’’ and ‘‘forbids the creation of second-class citizens.’’ Thus, Bonauto (2003) has contended that


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ending the exclusion of gay and lesbian couples from civil marriage would honor the letter and spirit of the Constitution. Additionally, as with other civil rights movements, it would acknowledge that gay and lesbian people and families are already part of the civil community. Within this trope of social and political inclusion, there are two broad genres of arguments within the pro-SSM position that draw from the ambiguous ideals of the American Dream. The first relies upon an abstract individualism while the other builds on a group-specific point of view. The first set of arguments proposes that the opportunity to marry should be granted to all members of the political community regardless of their color, creed, sexual orientation, gender identity, religion, or socioeconomic class. These proponents of SSM who rely on abstract individualism assume the position that every individual should have an opportunity to marry whoever they wish to as long as the partner concerned is a consenting adult. On this view, SSM is taken not simply as a right but also, and perhaps more importantly, as an opportunity to lead a life marked by recognition and respect that heterosexuals enjoy as a matter of fact (Pinello, 2006; Eskridge, 2002). When LGBTs are denied the right to marry, the argument proceeds, they are denied access to full citizenship in a manner that runs counter to the promise of the American Dream. The Dream promises that opportunities for success should be equally available to anyone regardless of her identity. It further stipulates that an individual is allowed to define success for herself (Hochschild, 1995). Therefore, if a member of the LGBT community sees herself as successful only in a marital relationship, denying that individual this opportunity is equivalent to denying her a shot at her American Dream. The second genre of arguments in favor of SSM considers it to be a groupspecific right that has been historically denied to LGBT people. These proponents of SSM who view it as a group-specific right also draw their rhetoric from the American Dream of social justice and inclusion. They argue that, as a group, LGBTs have been historically denied the opportunity to marry. This denial runs counter to the American Dream’s promise of equal opportunity for all. Just as African-Americans were denied full inclusion in mainstream American society by a system of formal segregation, which denied equal opportunity, LGBTs are also excluded from mainstream American society by being denied an equal opportunity to marry. In a sense, both the abstract individualism trope and the group marginalization trope draw from the language of the civil rights struggle. Essentially, the point is that no person or group should be denied the opportunity to succeed or to live their lives to the fullest capacity given their

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talents and abilities. Such denials are seen as an assault to the inclusionary ideals of the American dream. The Dream, however, is not the sole prerogative of advocates of SSM. Dream language is also used by opponents of SSM. These activists, typically belonging to the religious right, insist on the American Dream of a level playing field by articulating their opposition to SSM as a question of ‘‘special rights’’ for a particular group of Americans (McKissick, 2006; Savage, 2006). For these individuals, allowing SSM marriage is a way to offer, in the domain of marriage, preferential treatment to a group of people who already have a right to marry (a person of the opposite sex) and, in addition, are seeking the right to marry a person of the same sex. These opponents to SSM argue that the equal distribution of the right to marry is not open to doubt or question. All individuals have the fundamental right to marry a person of the opposite sex. The dispute arises only when an individual insists on marrying a person of the same sex. That is, those individuals – in this case, LGBT people – who wish to marry a person of the same sex are asking for special privileges and an extra set of group-specific rights over and above the equal right to marry they possess in common with others. Thus, Jan LaRue, Chief Counsel for Concerned Women of America, argues that ‘‘homosexuals are seeking a special right. They already have the same right to marry the rest of us have – the right to marry a person of the opposite sex. Limiting marriage to one man and one woman doesn’t discriminate on the basis of sex or sexual orientation’’ (LaRue, 2003). The discourse on ‘‘special rights’’ has a long pedigree and is not limited to this SSM dispute. Such claims have been made in relation to various identity politics movements surrounding, for instance, women’s rights, workers’ rights, and lesbian and gay rights (broadly speaking). Special rights are said to skew the level playing field. They are ‘‘unfair because they threaten the core American values, especially, of individual merit and equality of opportunity. Claims for special rights, unlike those for ‘equal’ rights, are said to assault the body politic’’ (Dudas, 2005). These arguments appeal to ‘‘a sentiment common among moderate voters: while citizens should enjoy equal rights, no single group should be afforded ‘special’ rights’’ (Goldberg, 1994). Seeking special rights represents, therefore, a ‘‘moral and cultural transgression’’ because these ‘‘demands are not simply wrong. They are beyond the pale and figuratively place rights mobilizers outside the bounds of moral community, lacking legitimate claim to universals such as law’’ (Goldberg-Hiller & Milner, 2003). President George W. Bush, widely known for his sympathy for the religious right, and a supporter of a federal ban on SSM, similarly thinks that


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‘‘sexual orientation non-discrimination laws represent ‘special rights’’’ (Cahill, 2004, p. 72). The ‘‘special rights’’ discourse is ubiquitous among religious conservatives. In South Bend, IN, an anti-gay rights group organized to ‘‘defend traditional marriage as between one man and one woman’’ goes by the name of ‘‘No Special Rights’’ (http://www.nospecialrights.net/indiana_defense_marriage.html). Likewise, in early 2008, an antigay rights group in Maine, the Christian Civic League, initiated a referendum banning SSM. The central question posed in the referendum is ‘‘Do you want to protect traditional marriage and eliminate special rights laws in Maine?’’ (Russell, 2008; emphasis added). On the Christian Civic League’s website, executive director Michael Heath states, ‘‘It is time for another referendum on gay rights. We have been licking our wounds long enough. I’m not going to sit by doing nothing really meaningful and watch either the courts or the legislature further advance special rights for homosexuality’’ (Heath, 2008). Public Agenda, the non-partisan opinion research and civic engagement organization, offers a useful synopsis of the disagreement: Gay rights activists say it’s a matter of equality: They suggest that homosexuals should have the same rights and protections as heterosexuals y Others, though, say special rights shouldn’t be granted on the basis of behavior – particularly one that many Americans find offensive. And some say that current laws are adequate to protect all Americans, regardless of their sexual orientation. (Public Agenda, 2008)

The entire discourse on special rights in relation to SSM is predicated on the tacit assumption that special rights are somehow inherently wrong. Here is the structure of the argument: ‘‘SSM is a special right. Therefore, SSM should be prohibited.’’ But this is not a valid argument unless we also accept that special rights are bad for America. It is this latter, enthymematic, premise of the argument that special rights are bad for America that draws from the American Dream’s explicit commitment to a level playing field, in which any special rights, preferences, or privileges are intolerable. Each side of the SSM dispute thus invokes its own version of the American Dream, and they do so while each seemingly referring to the same ideals. For proponents of SSM, the only way a level playing field can be guaranteed is by making marriage inclusive. Thus, exclusion from marriage counts as a systematic marginalization of the LGBT community, just as segregation laws and the institution of ‘‘separate but equal’’ facilities systematically marginalized African-Americans from the American Dream of equal opportunity. Proponents therefore view the American Dream as a work-in-progress and one that is rooted in the idea of progressive inclusion. Opponents, on the other hand, present their own version of the American

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Dream in which the Dream’s level playing field is already a reality. According to this view, the introduction of SSM will dismantle the American Dream as it already exists in the United States by unleveling the playing field in the domain of marriage. This conservative worldview wishes to preserve the status quo and argues that there already exists an equal opportunity to marry. Any new kind of marriage simply makes a new right available to some while denying them to others. Both sides thus speak of the level playing field and share convictions about its importance. Yet, there remains considerable disagreement about what exactly it is that constitutes a level playing field in marriage. ‘‘Equal marriage,’’ in other words, is a cause that both sides want to passionately defend but whose meaning remains ambiguous and contested. Basic questions remain open to dispute: Is equal marriage an ideal to be pursued or a reality to be preserved? And whether it is yet to be realized or is already achieved, what does the level playing field entail? Because the terms of the American Dream can accommodate an extraordinary range of meanings, both sides to the SSM dispute can appropriate Dream language and demonstrate a belief in its ideals while disagreeing about what elements of the Dream lie at its core. Dream language, thus, affords both consensus (belief in the ideal of a level playing field) and disagreement (when a level playing field will be realized and what it actually entails), allowing all sides to engage in ambiguous reasoning about equal marriage. Furthermore, the versions of the American Dream that SSM disputants present are incomplete. The American Dream encompasses ideas that go beyond a level playing field and equal opportunity, including notions of hard work and playing by the rules. Yet, when SSM disputants invoke the values of the Dream, they always do so selectively, appropriating only those elements of the Dream that strengthen (or seemingly strengthen) their efforts to mobilize support. Thus, each side presents its own partial account of what constitutes a level playing field in America that simultaneously refrains both from elaborating why the opposing side’s account is inaccurate and from developing a completely worked out model of their understanding of the Dream. As in the case of judicial minimalism, such partial accounts of the American Dream may make agreement possible where agreement is necessary and also make it unnecessary when it is impossible. Thus, Dream language may provide some oblique vocabulary for SSM disputants to talk about marriage without discussing the definition of marriage at all. That is, Dream talk enables disputants not to engage in that difficult dialog about whether women should marry women or if men should marry men. Instead, Dream talk frames the conversation in terms of inclusive and exclusive


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rights and opportunities, indeed, in terms of meritocracy itself. Disputants do not have to agree about what marriage means. But they may agree about what a level playing field of marriage entails. Yet, the American dream, like most political language, has its pitfalls. Political languages depend on ‘‘social cues’’ rather than on ‘‘rigorous analysis’’ and thus ‘‘are likely to be simplistic and distorted’’ and can have the result of both exciting and mollifying fear and anxiety (Edelman, 1998, 1975). Much depends on the contending publics’ ‘‘uptake’’ of each others’ meanings (Austin, quoted in Bach & Harnish, 1980, p. 4). ‘‘In saying something a person has a certain intention, and the act of communicating succeeds only if that intention is recognized by the hearer’’ (Bach & Harnish, 1980, p. 3). Linguistic communication is an inferential process. ‘‘The inference the hearer makes and takes himself [sic] to be intended to make is based not just on what the speaker says but also on mutual contextual beliefs’’ (Bach & Harnish, 1980, p. 5). In the case of SSM, disputants do share a set of ‘‘mutual contextual beliefs’’ about meritocracy and the American Dream. Therefore, it might be plausibly argued that there will be ‘‘uptake’’ and meaning exchange between parties in this conversation, which opens up the possibility of agreement. The language of the Dream might, thus, become a bridge that connects the two camps in the SSM dispute. But there is also no guarantee that this will happen. As Darian-Smith (1999, p. 3) has argued in her discussion of the Channel Tunnel, not every bridge bridges a divide: ‘‘bridges not only connect a former separation, but can also mark new divisions.’’ In the case of the American Dream, the shared set of national values might end up consolidating disagreements about what is ‘‘equal’’ and what is ‘‘special’’ about certain rights. Belief in the ideal of the American Dream’s level playing field, for instance, might not involve agreement about whether the playing field of marriage is already level or if it is in need of leveling by making marriage inclusionary. Shared belief in the American Dream might thus engender two very different kinds of publics. The first kind might engage in joint deliberation about whether or not the ground reality lives up to the American Dream’s ideals. Thus, this public might, for example, agree that marriage laws in the United States do not reflect the ideals of a level playing field and therefore ought to be changed. On the contrary, a second kind of public might emerge that talks past one another. Such a public would solidify divisions between the two camps, allowing each side to cling to its own conception of the Dream without every engaging in a joint discussion about whether or not American society reflects the Dream’s values.

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So far, American Dream articulations have not enabled SSM disputants to come closer to agreement. Yet, we submit that the ambiguous and incomplete versions of the American Dream employed in the SSM dispute help encourage the participation of and engagement between disputing groups precisely because the versions of the Dream ask only that individuals accept the Dream’s values without also requiring individuals to compromise their (controversial and moral) views of marriage. This is a good thing. The ideas and themes of the Dream thus provide a means of brokering temporary alliances. Moreover, and more importantly, these ideas and themes offer the potential of moving disputants toward genuine dialog – a dialog that does not yet seem to have occurred. A movement toward a common and complete vision of the American Dream from both parties to the SSM debate would present an opportunity for these disputants to clarify each of their positions in relation to the other and would allow them to talk to each other as opposed to past one another. Such a movement would invite SSM disputants to a dialog about practical policymaking and the possibilities of deeper agreement. Presumably, such a movement would entail SSM proponents and opponents offering elaborations of what exactly constitutes a level playing field of marriage. For instance, advocates of SSM might offer a discussion about why they believe there is no existing level playing field in marriage. And opponents might explain why this is not the case. If the debate were to proceed to a discussion of what constitutes a level playing field in marriage, the two contending parties might move forward from the assertion of mutually inconsistent beliefs about marriage, sexuality, and family, toward a debate organized around commonly held ideas. This has not quite happened. By continuing to refuse to elaborate exactly what constitutes a level playing field in marriage, and yet by obliquely referring to it, the opposing parties have so far simply ended up re-packaging and sustaining the conflicts that animate the SSM dispute. But this might change in the years to come.

CONCLUSION In this chapter, we have discussed the role of public reason in American politics. We began by invoking Rawls’s exemplar of public reason, the Supreme Court, and discussed how the high bench deploys ambiguous, incompletely theorized arguments as it adjudicates radical disputes. We then hypothesized that this same kind of reasoning might be possible in the public domain where ordinary citizens can rely on a shared yet flexible set of

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ideals to articulate claims in the context of deep disagreement. We argued that the American Dream supplies such a set of shared, highly flexible ideals. In the final section of this chapter, we focused on how participants in the real-world radical dispute over SSM rely on ambiguous, incomplete appeals to the American Dream that mirror the sort of incompletely theorized forms of reasoning used by Supreme Court justices. We have demonstrated how a movement toward a common understanding of a level playing field in marriage might bring SSM disputants closer to agreement. But we have also pointed out that so far SSM disputants have refrained from offering such a common understanding of the American Dream. Thus, although public reasoning (as we understand it), particularly with regard to the American Dream, has the potential to generate some form of consensus and agreement, we also find that this does not inevitably occur. Put differently, one could say that American Dream talk has thus far been used to organize a public incapable of joint deliberation. In the future, parties to the SSM dispute may continue to invoke the ideals of the American Dream in making their arguments without articulating a common understanding of what the Dream entails. Or they may move closer to a consensus vision of the Dream by making use of the opportunities for joint deliberation presented by the language of ambiguity and incompleteness. Either way, disputants will develop their position in the same messy and uncertain way that arguments often develop in court.

NOTES 1. Other theorists have subsequently extended the idea of public reason. For instance, Macedo argues, ‘‘The demand for public reasonableness is especially important where fundamental rights and liberties are at stake, and in the face of a long history of arbitrary and invidious forms of discrimination. Here the modern Supreme Court has rightly insisted that before the government can infringe fundamental rights, or before it can subject a ‘discrete and insular minority’ to unequal treatment, a high burden of reasoned justification must be met’’ (Macedo, 1997). Gutmann and Thompson point out that reasoned resolutions are possible through democratic deliberation if certain moral principles – such as reciprocity, fair opportunity, publicity, and accountability – apply to both the process and the substance of democratic decision-making (Gutmann & Thompson, 1998; cf. Fish, 1997b). Deliberative democracy is also expected to give rise to free political discussion, open legislative deliberations, and a pursuit of common good (Freeman, 2000). Although it has no monopoly over reason, deliberative politics emphasizes applying cognitive judgment, and therefore, cognitive reason, to moral and political questions (Estlund, 1993).

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2. Rawls likens his account of judicial reasoning to Ronald Dworkin’s, and Dworkin has written extensively about principled judicial argument (p. 236, note 23). 3. Our discussion here is informed by Bybee (2001). 4. This view of judicial action has deep roots, reaching back at least to the nineteenth-century ‘‘legal science’’ of Christopher Columbus Langdell (Grey, 1983). Even though Langdell’s particular theories have long since fallen into disrepute, the claim that judicial decision-making ideally rests on the articulation and application of impartial principles has survived (Wechsler, 1959; Singer, 1988; Fischer, 1991). It is still the pursuit of such principles that is commonly thought to give court decisions a distinctively legal quality, distinguishing the judiciary from the other branches of government. 5. As Lindblom wrote twenty years after the publication of his original article, ‘‘I have never understood why incrementalism in its various forms has come to so prominent place in the policy making literature. [My original] article has been reprinted in roughly forty anthologies. I always thought that, although some purpose was served by clarifying incremental strategies of policy analysis and policy making, to do so was only to add a touch of articulation and organization to ideas already in wide circulation. Nor have I well understood the frequency with which incremental analysis as a norm is resisted. That complex problems cannot be completely analyzed and that we therefore require strategies for skillful incompleteness still seem close to obvious to me’’ (Lindblom, 1988b, p. 257). 6. Rawls seems to accept a version of this argument about how a modus vivendi may lead to overlapping consensus, but he sees it as developing over the course of long periods of time (Rawls, 2005, 159ff ). 7. There are many ‘‘Americas.’’ Here, we use the word interchangeably with the ‘‘United States.’’ 8. Sean Cahill, Director of the National Gay and Lesbian Task Force Policy Institute, has usefully compiled the following list of arguments proposed against SSM: allowing gay couples to marry will damage or destroy the institution of marriage; gay relationships are unhealthy; gay relationships are unsafe; because gay people and their relationships are unhealthy and destructive and they are a drain on the economy; gay parenting is a looming threat that endangers children and society; gay parents are more likely to abuse their children; gay men are more likely to be pedophiles; gay marriage is a threat to religious freedom: religions will be forced to recognize and sanction gay unions; gay rights advances are akin to terrorism; SSM signals the breakdown of society and is part of a satanic plot to destroy civilization; gay couples do not need the legal protections of marriage; gay people already get married; gays seek to legalize polygamy or group marriage; gay marriage threatens accepted gender roles and will lead to a decline in the population (Cahill, 2004, pp. 26–42).

ACKNOWLEDGMENTS The authors gratefully acknowledge the support of the Political Science Department at Syracuse University. The authors received important

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feedback from their co-panelists and their audiences at the 2008 New England Political Science Association Meeting, the 2008 Law and Society Association Meeting, and the 2008 American Political Science Association Meeting. In particular, the authors wish to thank Evan Gerstmann and Daniel R. Pinello for their insightful suggestions. The authors also would like to thank Austin Sarat and an anonymous referee for their helpful comments.

REFERENCES Adams, J. T. (1931). The epic of America. Boston: Little, Brown & Co. American Family Association. (2003–2005). Please help preserve the traditional judeo-christian institution of marriage. Available at http://www.nogaymarriage.com/default.asp. Retrieved on April 1, 2008 from NoGayMarriage.com Anderson, B. (1983). Imagined communities: Reflections on the origin and spread of nationalism. New York: Verso. Appleby, J. (1976). Liberalism and the American Revolution. The New England Quarterly, 49(1), 3–26. Appleby, J. (1992). Liberalism and republicanism in the historical imagination. Cambridge, MA: Harvard University Press. Bach, K., & Harnish, R. M. (1980). Linguistic communication: A schema for speech acts. Cambridge, MA: Massachusetts Institute of Technology Press. Bailyn, B. (1967). The ideological origins of the American Revolution. Cambridge, MA: Harvard University Press. Bellah, R. N. (1967). Civil religion in America. Daedalus: Religion in America, 96(1), 1–21. Bonauto, M. L. (2003). Civil marriage as a locus of civil rights struggles. Available at http:// www.abanet.org/irr/hr/summer03/civil.html. Retrieved on September 12, 2008 from American Bar Association. Bower, L. (1994). Queer acts and the politics of ‘‘direct access’’: Rethinking law, culture, and community. Law & Society Review, 28(5), 1009–1033. Boyd, S. (1999). Family, law and sexuality: Feminist engagements. Social & Legal Studies, 8(3), 369–390. Butler, J. (1990). Gender trouble: Feminism and the subversion of identity. New York: Routledge Books. Bybee, K. J. (1998). Mistaken identity: The supreme court and the politics of minority representation. Princeton, NJ: Princeton University Press. Bybee, K. J. (2001). The jurisprudence of uncertainty. Law and Society Review, 35, 943–956. Cahill, S. (2004). Same-sex marriage in the United States: Focus on the facts. New York: Lexington. Carter, L. H. (1985). Contemporary constitutional lawmaking: The supreme court and the art of politics. New York: Pergamon Press. CBS News. (2008). CBS poll: Changing views on gay marriage. Available at http://www. cbsnews.com/stories/2008/06/13/opinion/polls/main4180335.shtml. Retrieved on August 15, 2008 from CBS News.

152


Chauncey, G. (2004). Why marriage? The history shaping today’s debate over gay equality. New York: Basic Books. Citrin, J., Haas, E., Muste, C., & Reingold, B. (1994). Is American nationalism changing? Implications for foreign policy. International Studies Quarterly, 38(1), 1–31. Cohen, E. F. (2004). Contracted out: LGBT marriage and citizenship. Available at http:// www.polisci.wisc.edu/users/coleman/apd/cohen.pdf. [Cited with permission from author.]. Retrieved on April 1, 2008 from University of Wisconsin, Madison. Cullen, J. (2003). The American dream: A short history of an idea that shaped a nation. New York: Oxford. Darian-Smith, E. (1999). Bridging divides: The channel tunnel and English legal identity in the new Europe. Berkeley, CA: University of California Press. Dienstag, J. F. (1996). Serving god and mammon: The Lockean sympathy in early American political thought. American political Science Review, 90(3), 497–511. Dobson, J. C. (2007). Marriage under fire: Why we must win this battle. Carol Stream, IL: Tyndale House. Dudas, J. (2005). In the name of equal rights: ‘‘Special’’ rights and the politics of resentment in post-Civil Rights America. Law & Society Review, 39, 723–757. Duncan, R. F. (1994). Who wants to stop the church: Homosexual rights legislation, public policy, and religious freedom. The Notre Dame Law Review, 69(3), 393–445. Dunn, J. (1969). The political thought of John Locke. Cambridge, MA: Cambridge University Press. Dupuis, M. (2002). Same-sex marriage: Legal mobilization, and the politics of rights. New York: Peter Lang. Edelman, M. (1998). Language, myths and rhetoric. Society, 35(2), 131–139. Eskridge, W. N., Jr.. (2002). Equality practice: Civil unions and the future of gay rights. New York: Routledge. Estlund, D. (1993). Who’s afraid of deliberative democracy? Texas Law Review, 71, 1437–1477. Feldman, S. (1988). Structure and consistency in public opinion: The role of core beliefs and values. American Journal of Political Science, 32(2), 416–460. Finnis, J. (1994). Law, morality, and ‘sexual orientation’. Notre Dame Law Review, 69(5), 1049–1076. Fischer, W. W., III. (1991). The development of modern American legal theory and the judicial interpretation of the bill of rights. In: M. J. Lacey & K. Haakonssen (Eds), A culture of rights: The bill of rights in philosophy, politics, and law, 1791 and 1991 (pp. 266–365). New York: Cambridge University Press. Fish, S. (1997a). Mission impossible: Settling the just bounds between church and state. Columbia Law Review, 97, 2255–2333. Fish, S. (1997b). Boutique multiculturalism, or why liberals are incapable of thinking about hate speech. Critical Inquiry, 23(2), 378–395. Fowler, R. B., Hertzke, A. D., Olson, L. R., & Den Dulk, K. R. (2004). Religion and politics in America: Faith, culture, and strategic choices. Boulder, CO: Westview. Fraser, N. (1992). Rethinking the public sphere: A contribution to the critique of actually existing democracy. In: C. Calhoun (Ed.), Habermas and the public sphere (pp. 109–142). Cambridge, MA: MIT Press. Fraser, N. (1995). From redistribution to recognition? Dilemmas of justice in a ‘postsocialist’ age. New Left Review, 212(July–August), 68–93.


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Freeman, S. (2000). Deliberative democracy: A sympathetic comment. Philosophy and Public Affairs, 29, 371–418. Frohock, F. (1978). The structure of ‘‘politics’’. The American Political Science Review, 72(3), 859–870. Frohock, F. (2006). Bounded divinities: Sacred discourses in pluralist democracies. New York: Palgrave Macmillan. Gerstmann, E. (2008). Same-sex marriage and the Constitution (2nd ed.). New York: Cambridge University Press. Ghosh, C. (2008). The politics of the American dream: Locke and puritan thought revisited in an era of open immigration and identity politics. Unpublished doctoral dissertation, Syracuse University, New York. Goldberg, S. (1994). Gay rights through the looking glass: Politics, morality and the trial of Colorado’s Amendment 2. Fordham Urban Law Journal, 21, 1057–1081. Goldberg-Hiller, J. (2002). The limits to union: Same-sex marriage and the politics of civil rights. Ann Arbor: University of Michigan Press. Goldberg-Hiller, J., & Milner, N. (2003). Rights as excess: Understanding the politics of special rights. Law & Social Inquiry, 28, 1075–1118. Greenstone, J. D. (1993). The Lincoln persuasion: Remaking American liberalism. Princeton, NJ: Princeton University Press. Grey, T. C. (1983). Langdell’s orthodoxy. University of Pittsburgh Law Review, 45, 1–53. Gutmann, A., & Thompson, D. (1998). Democracy and disagreement. Cambridge, MA: Belknap Press. Hamilton, A., Madison, J., & Jay, J. (1961). The federalist papers. New York: Penguin Books. Hartz, L. (1955). The liberal tradition in America: an interpretation of American political thought since the Revolution. New York: Harcourt, Brace & World. Heath, M. (2008). Time for another referendum on gay rights. Available at http://www. cclmaine.org/artman/publish/index.shtml. Retrieved on April 1, 2008 from The Conservative Christian League of Maine. Henderson, T. M. (2008). From seriatim to consensus and back again: A theory of dissent. Supreme Court Review, 2007, 283–344. Hochschild, J. L. (1995). Facing up to the American dream: Race, class and the soul of the nation. Princeton, NJ: Princeton University Press. Hochschild, J. L., & Scovronick, N. (2003). The American dream and the public schools. New York: Oxford University Press. Hull, K. E. (2006). Same-sex marriage: The cultural politics of love and law. New York: Cambridge University Press. Huntington, S. P. (1981). American politics: The promise of disharmony. Cambridge, MA: Harvard University Press. Huyler, J. (1995). Locke in America: The moral philosophy of the founding era. Lawrence, KS: University Press of Kansas. Jefferies, J. C., Jr. (1994). Justice Lewis F. Powell, Jr. New York: Charles Scribner’s Sons. Jillson, C. (2004). Pursuing the American dream: Opportunity and exclusion over four centuries. Lawrence, KN: University of Kansas Press. Josephson, J. (2005). Citizenship, same-sex marriage and feminist critiques of marriage. Perspectives on Politics, 3(2), 269–284. Kloppenberg, J. T. (1987). The virtues of liberalism: Christianity, republicanism, and ethics in early American political discourse. The Journal of American History, 74(June), 9–33.

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Kramnick, I. (1990). Republicanism and bourgeois radicalism. Ithaca: Cornell University Press. LaRue, J. (2003). Talking points: Why homosexual ‘marriage’ is wrong. Available at http:// www.cwfa.org/articles/4589/LEGAL/family/index.htm. Retrieved on April 1, 2008 from Concerned Women for America. Lee, P., & George, R. P. (1997). What sex can be: Self-alienation, illusion, or one-flesh union. American Journal of Jurisprudence, 42, 135–157. Levi, E. H. (1949). An introduction to legal reasoning. Chicago: University of Chicago Press. Lindblom, C. E. (1988a). The science of ‘muddling through’. In: C. E. Lindblom (Ed.), Democracy and market system (pp. 78–88). Oslo: Norwegian University Press. Lindblom, C. E. (1988b). Still muddling, not yet through. In: C. E. Lindblom (Ed.), Democracy and market system (pp. 517–526). Oslo: Norwegian University Press. Lipset, S. M. (1963). The first new nation: The United States in historical and comparative perspective. New York: Basic Books. Lipset, S. M. (1996). American exceptionalism: A double-edged sword. New York: W.W. Norton Books. Luker, K. (1984). Abortion and the politics of motherhood. Berkeley, CA: University of California Press. Macedo, S. (1997). In defense of liberal public reason: Are slavery and abortion hard cases? The American Journal of Jurisprudence, 42, 1–19. Marshall, G. (1982). In search of the spirit of capitalism: An essay on Max Weber’s protestant ethic thesis. London: Hutchinson. Maveety, N. (1996). Justice Sandra Day O’Connor: Strategist on the supreme court. New York: Rowman & Littlefield. McClosky, H., & Zaller, J. (1984). The American ethos: Public attitudes toward capitalism and democracy. Cambridge, MA: Harvard University Press. McKissick, D. (2006). Special rights, not equal rights. Available at http://www.drewmckissick.com/ special_rights_not_equal_rights. Retrieved on April 1, 2008 from DrewMckissick.com Morgan, E. S. (Ed.) (1965). Puritan political ideas: 1558–1794. New York: Bobbs-Merrill. Morone, J. (2003). Hellfire nation: The politics of sin in American history. New Haven, CT: Yale University Press. Nackenoff, C. (1994). The fictional republic: Horatio Alger and American political discourse. New York: Oxford University Press. No Special Rights. Available at http://www.nospecialrights.net/indiana_defense_marriage.html. Retrieved on April 1, 2008 from NoSpecialRights.net Owen, J. J. (2001). Religion and the demise of liberal rationalism: The foundational crisis of the separation of church and state. Chicago: University of Chicago Press. Peretti, T. J. (1999). In defense of a political court. Princeton, NJ: Princeton University Press. Pinello, D. R. (2006). America’s struggle for same-sex marriage. New York: Cambridge University Press. Pocock, J. G. A. (1975). The Machiavellian moment: Florentine political thought and the Atlantic tradition. Princeton, NJ: Princeton University Press. Poggi, G. (1983). Calvinism and the capitalist spirit: Max Weber’s protestant ethic. Amherst, MA: University of Massachusetts Press. Public Agenda. (2008). Gay rights: Overview. Available at http://www.publicagenda.org/issues/ overview.cfm?issue_type ¼ gay_rights. Retrieved on April 1, 2008 from Public Agenda. Quinnipiac University. (2008). American voters oppose same-sex marriage Quinnipiac University national poll finds, but they don’t want government to ban it. Available at


155

http://www.quinnipiac.edu/x1295.xml?ReleaseID ¼ 1194. Retrieved on August 15, 2008 from Quinnipiac University. Rawls, J. (2005). Political liberalism (Expanded ed.). New York: Columbia University Press. Rimmerman, C. A., & Wilcox, C. (Eds). (2007). The politics of same-sex marriage. Chicago: University of Chicago Press. Rosenberg, G. R. (Ed.) (1991). The hollow hope: Can courts bring about social change? Chicago: University of Chicago Press. Russell, E. (2008). League fighting gay rights in Maine. Available at http://www.bangordailynews. com/news/t/news.aspx?articleid=162817&zoneid ¼ 5. Retrieved on April 15, 2008 from Bangor Daily News. Sandel, M. J. (1982). Liberalism and the limits of justice. Cambridge, UK: Cambridge University Press. Savage, D. (2006, July 30). Same-sex marriage wins by losing. Available at http:// www.nytimes.com/2006/07/30/opinion/30savage.html. Retrieved on April 1, 2008 from The New York Times. Schildkraut, D. J. (2007). Defining American identity in the twenty-first century: How much ‘‘there’’ is there? The Journal of Politics, 69(3), 597–615. Scott, J., & Leonhardt, D. (2005, May 15). Shadowy lines that still divide. Available at http:// www.nytimes.com/2005/05/15/national/class/OVERVIEW-FINAL.html. Retrieved on April 1, 2008 from The New York Times. Singer, J. W. (1988). Legal realism now. California Law Review, 76, 465–544. Smith, R. (1993). Beyond Tocqueville, Myrdal, and Hartz: The multiple traditions in America. American Political Science Review, 87(3), 549–566. Smith, R. (1997). Civic ideals: Conflicting visions of citizenship in U.S. history. New Haven: Yale University Press. Strasser, M. (2004). Lawrence, same-sex marriage and the constitution: What is protected and why? New England Law Review, 38, 667–681. Sunstein, C. R. (1996). Legal reasoning and political conflict. New York: Oxford University Press. Sunstein, C. R. (1999). One case at a time: Judicial minimalism on the supreme court. Cambridge, MA: Harvard University Press. Tawney, R. H. (1926). Religion and the rise of capitalism: A historical study. New York: Harcourt, Brace & Co. Tebbel, J. W. (1963). From rags to riches: Horatio Alger, Jr., and the American dream. New York: Macmillan. The Center for Public Justice. (2003). Marriage and homosexual rights. Available at http:// www.cpjustice.org/stories/storyReader$1114. Retrieved on April 1, 2008 from Center for Public Justice. The Pew Forum on Religious and Public Life. (2008). An overview of the same-sex marriage debate. Available at http://pewforum.org/docs/?DocID ¼ 288. Retrieved on April 1, 2008 from Pew Forum. The Pew Research Center. (2008). Gay marriage is back on the radar for republicans, evangelicals. Available at http://pewresearch.org/pubs/868/gay-marriage. Retrieved on August 15, 2008 from Pew Research. Warner, M. (1992). The mass public and the mass subject. In: C. Calhoun (Ed.), Habermas and the public sphere (pp. 377–401). Cambridge, MA: MIT Press. Warner, M. (2002). Publics and counterpublics. New York: Zone Books.

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Wasserstrom, R. A. (1961). The judicial decision: Toward a theory of legal justification. Stanford: Stanford University Press. Weber, M. (2002). The protestant ethic and the spirit of capitalism. P. Baehr and G. C. Wells (Trans.). New York: Penguin. Wechsler, H. (1959). Toward neutral principles of constitutional law. Harvard Law Review, 73, 1–35. Wilcox, C., & Larso, C. (2006). Onward christian soldiers?: The religious right in American politics. Boulder, CO: Westview. Wildmon, D. (2004). Consequences of same-sex ‘marriage’ will be far-reaching. Available at http://www.afajournal.org/2004/april/404don.asp. Retrieved on April 1, 2008 from American Family Association Journal. Wood, G. (1969). The creation of the American republic, 1776–1787. New York: W.W. Norton Books.

LITTLE MONSTERS, WILD ANIMALS, AND WELFARE QUEENS: RONALD REAGAN AND THE LEGAL CONSTITUTION OF AMERICAN POLITICS Jeffrey R. Dudas ABSTRACT Scholars increasingly recognize the centrality of legal ideas and language to the political vision that inspires American conservatism. However, relevant studies have been limited to the discursive practices that motivate conservative activism at the grass-root level. Exploration of the legal discourses employed by prominent public officials thus carries significant scholarly potential. For example, this chapter’s investigation of President Ronald Reagan reveals that his political vision was suffused with legal discourse. Reagan’s legal discourse, moreover, has exerted constitutive effects both on American conservatism and on the form and substance of a great deal of contemporary American public policy.


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1. INTRODUCTION It is conventional to note that, over the past generation, the ‘‘culture wars’’ have propelled American politics. It is similarly conventional to observe that these wars have produced a host of negative cultural archetypes that have both shaped the conservative political agenda and fueled conservative participation in the culture wars themselves. The most prominent stock villains of the conservative imagination are such socially dysfunctional and subversive figures as the radical campus protestor who, encouraged by leftist professors obsessed with ‘‘political correctness’’ (PC), unfairly denounces America as cruel, racist, and sexist; the unrepentant violent criminal who is coddled by a misguided criminal justice system that dwells on the criminal’s lowly socio-economic background; and the greedy welfare cheat who swears off hard work to defraud the public treasury. Exquisitely cultivated by conservative intellectuals and public officials, such characters have leapt out of the contemporary conservative imagination and become the subject of widespread, general condemnation. In so doing, the stock villains of the culture wars emerge as the ideological foundations for much of contemporary American public policy. Recent trends in higher education policy (e.g., decreased governmental funding for public universities, the dismantling of affirmative action admissions policies), criminal justice policy (e.g., the ‘‘war on crime’’ and its components: mandatory minimum sentences, ‘‘three strikes’’ laws, the flourishing of ‘‘Super Max’’ prisons, the revivification of capital punishment), and welfare policy (e.g., the 1996 bi-partisan welfare reform act signed into law by President Clinton) are oriented, in part, toward confronting and containing the threats that these stock villains are said to present to the American nation. Less conventional are the insights of some law and society scholars, who argue that legal discourse has been important for the rhetorical establishment of these national villains, as well as for their entrenchment as the ideological cornerstones of political practice (Passavant, 2002, pp. 137–163; Haltom & McCann, 2004, generally; Dudas, 2008, pp. 137–153). Conservatism is thus animated with a specifically legal consciousness.1 It is not as well recognized by scholars that this conservative legal consciousness was first articulated most prominently by Ronald Reagan – who employed it to illuminate the subversive tendencies of radical campus protestors, leftist professors, violent criminals, and welfare cheats. In particular, conservatives follow Reagan in emphasizing that the elemental offense that America’s villains commit is that they employ a devious, illegitimate logic of individual rights. This logic claims that American

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citizens are owed a perfect equality of outcomes. In rejecting the traditional, legitimate understanding that citizens have the right to equal opportunities to succeed – the right to compete in the marketplace, for example, without undue governmental influence – the rights-based argument in favor of equal outcomes denies also, according to New Right commentators, the very foundations of American democracy. Indeed, the equal opportunities that individual rights guarantee are said to be the distinctive features of the freedom that American citizens enjoy. There are, moreover, pragmatic considerations served by the nation’s traditional understanding of equal opportunity rights: such rights, and the opportunities and freedoms that they enact, conform to the prerogatives of law and order. As Glendon (1991) contends, Americans should appreciate that our rights-based political tradition embraces ordered liberty rather than personal license (Glendon, 1991, pp. 8–14; see also Goldwater, 1960, pp. 33–38; Sowell [1984] 1988, p. 310). However, the equal outcomes logic of rights is said to encourage behavior that crosses the boundaries of law and order and, so, threatens social chaos. For example, less powerful populations – such as women, racial minorities, the poor, gays and lesbians, the young, and the criminally accused – are frequently accosted for employing rights in irresponsible, socially destructive ways. Not content with the governmental neutrality for which other Americans ask, the less powerful make excessive, ‘‘special’’ rights-claims to the equality of outcomes – claims that seek to enlist the active help of government in the gratification of their wants and needs (Schacter, 1994, 1997; Goldberg-Hiller, 2002; Goldberg-Hiller & Milner, 2003; Dudas, 2005, 2008). The equal outcomes logic of rights is thus said to destabilize the social order and, in so doing, to undermine the specifically legal foundations of the American nation. Accordingly, the conservative legal consciousness emphasizes that employment of the equal outcomes logic of rights is an exercise in un-American activities. Prominent conservatives frequently employ this distinctive legal consciousness both as a conceptual resource for making sense of the American nation and as a strategic resource for realizing conservative movement goals. But although scholars have begun to explore the use of the conservative legal consciousness, thus far inquiry has shied away from its employment by conservative public officials.2 The paucity of scholarly analysis in this regard is unfortunate; for it removes from view one of the original, and, I will argue, the most influential single practitioner of the conservative legal consciousness: America’s 40th President Ronald Reagan. Indeed, there is a relatively straight line connecting Reagan’s legalistic depictions of the American nation, first, to conservative movement politics

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and, second, to the reactionary trends that suffuse American politics writ large. First, that discourse was critically important for the popularization and, especially, the naturalization of the stock villains whose subversive misdeeds preoccupy conservative movement activists. Second, these national villains, imprinted with Reagan’s (and conservatism’s) distinctive legal brand, have worked as the ideological cornerstones for a great deal of contemporary American public policy. Examination of Reagan’s legal discourse thus reveals its constitutive influence on both the form and the substance of current American politics. This chapter unfolds in the following way. Section 2, first, establishes the outsized contemporary influence of Ronald Reagan’s (legally infused) vision of the American nation and, second, locates my analysis in its appropriate methodological and scholarly currents. Section 3 turns first to the specifics of Reagan’s legal discourse, focusing in particular upon how his employment of the equal opportunity logic of rights rhetorically constituted the national heroes and, especially, the national villains who fuel conservative participation in the American culture wars. It then traces the constitutive work performed by Reagan’s legal discourse to contemporary American public policy, arguing that the heroes and villains of Reagan’s formulations are the ideological cornerstones of prevailing policy trends in the areas of higher education, criminal justice, and welfare administration. These constitutive effects of Reagan’s discourse, I conclude in Section 4, illuminate the specifically legal, and reactionary, foundations of contemporary American politics.

2. ‘‘THE AGE OF REAGAN’’ AND THE CONSTITUTIVE POWER OF LAW Ronald Reagan has been the single most important political figure of [our] age. Sean Wilentz, The Age of Reagan Social action depends upon law. John Brigham, ‘‘Right, Rage, and Remedy: Forms of Law in Political Discourse.’’

There is broad agreement among historians that Americans now live in the ‘‘age of Reagan’’ (Wilentz, 2008; see also, generally, Brownlee & Graham, 2003; Troy, 2005; Tygiel, 2006; Diggins, 2007). To be sure, the ascendance of the ‘‘New Right’’ governing coalition to electoral dominance over the previous generation is the most obvious manifestation of Reagan’s legacy (Micklethwait & Wooldridge, 2004, pp. 89–93; Critchlow, 2007, pp. 184–219).


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Less obvious, but arguably more important, is the influence that Reagan’s political vision has exerted over the cultural life of the nation.3 On the one hand, Reagan’s conception of the American nation has exerted a profound influence on conservative movement politics. Important movement conservatives (such as National Review editor Rich Lowry), dispassionate scholars (such as Michael Kazin and James Patterson), and even fierce critics (such as the historian Garry Wills) agree that Reagan’s legacy casts a long shadow over the New American Right (Lowry, 2004, p. vii; Kazin, 1998, pp. 261–265; Patterson, 2003, p. 369; Wills, 2000, p. ix). Reagan’s ghost, writes movement activist Linda Chavez, ‘‘hangs heavily over the Republican [party]’’ (Chavez, 2008). There is further agreement, moreover, that the constitutive effects of Reagan’s political vision are responsible for his influence among conservatives. ‘‘Reagan’s greatest contributions,’’ summarizes conservative commentator Victor Davis Hanson, ‘‘wereypsychological, amounting to nothing less than a reawakening of the American faith in common sense’’ (Hanson, 2004, p. 188). On the other hand, Reagan’s insistence that America’s unique destiny was to be a ‘‘shining city on a hill’’ that would radiate the freedom enjoyed by American citizens outward as inspiration for all of the world’s people has gained general, bi-partisan acceptance. Contemporary observers thus credit Reagan’s discursive renderings of America with rescuing popular faith in the nation’s capacity and mission. The eminent historian John Patrick Diggins and the veteran journalist Lou Cannon, for example, maintain that Reagan’s belief in the American mission led to a general revival of American selfregard and confidence following the social convulsions and doldrums of the 1970s. Having ‘‘remedied America of all self-doubt,’’ Diggins writes, Reagan ‘‘delivered [us] from fear and loathing’’ (Diggins, 2007, pp. 16, xvii). Cannon agrees that Reagan revived ‘‘the confidence of Americans at a time when it was very low’’ (Cannon, 2004). Even Democratic president Barack Obama admits that ‘‘Ronald Reagan changed the trajectory of America’’ (Murray, 2008). Summarizing its broad constitutive effects, historian Sean Wilentz argues that Reagan’s political vision provides ‘‘the guiding assumptions and possibilities of American politics and government’’ (Wilentz, 2008, p. 8; see also Tygiel, 2006, p. xvii; Troy, 2005, pp. 345–347).4 At the core of Reagan’s political vision, what made America a shining city on a hill, was a distinctive national dream: America offered to citizens ‘‘the ultimate in individual freedom consistent with law and order’’ (Reagan, 1964a, in Reagan, 1989a, pp. 36, 26). Drawing on recently released, primary source material (Skinner, Anderson, & Anderson, 2001, 2003, 2004), contemporary scholars have exhaustively analyzed the first part of Reagan’s

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vision of America, the ‘‘ultimate in individual freedom’’ section. They have noted that, despite Reagan’s sincerity, the promises of that phrase were unevenly realized both at home and abroad (see, e.g., Heclo, 2003, pp. 33–35). But the second part of Reagan’s political vision, which qualified individual freedom with the prerogatives of law and order, has mostly slipped the attention of scholars. Taking both portions of Reagan’s political vision seriously, however, makes clear that Reagan’s endorsement of ordered freedom relied upon a distinctively legal discourse. Animating this discourse was a particular vision of the proper relationship between equality and individual rights. The same recently released, primary source material used by contemporary Reagan scholars makes clear that Reagan grounded the ordered freedom that made American democracy distinctive in a discourse of equal rights. Reagan consistently argued, in fact, that the nation’s traditional logic of rights, which held that Americans were to be free of the influence of government so that they could unleash their ‘‘individual genius,’’ guaranteed that Americans would have an equal opportunity to ‘‘fly as high and as far as [their] own talent[s] and energ[ies] would take [them]’’ (Reagan, 1976a, in Skinner et al., 2001, p. 13). But this traditional, equal opportunity understanding of rights had been twisted into a belief that Americans were owed a perfect, government-subsidized equality – regardless of their abilities or efforts. Worse, while the equal opportunity understanding of rights emphasized that there were limits to the individual freedom that rights guaranteed, the new logic of rights allowed that, if government failed to deliver equal outcomes, Americans were justified in creating chaos and disorder. Accordingly, although the equal opportunity understanding of rights promoted the ordered freedom that made America world-renowned, the new, equal outcomes logic promoted a wild, licentious freedom in which the noxious deeds of the unscrupulous proceeded under the color of right. Reagan thus targeted irresponsible legal behavior, and those who benefited from it, as the engine of social disorder and national decline. As I argue in Section 3, Reagan was consumed in particular with the legal misdeeds of three populations: campus protestors and the leftist professors who encouraged those protestors, violent criminals, and welfare cheats. Their abuses of law – facilitated by the new, equal outcomes understanding of individual rights – violated the legitimate, equal opportunity claims of ‘‘average citizens’’ and, so too, the ordered freedom that defined American democracy. Made up disproportionately of historically powerless and stigmatized people (the young, racial minorities, the poor, and women), Reagan’s legal discourse condemned these groups as national villains


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without resorting to old stereotypes and aspersions. Foreswearing the selfdiscipline that Reagan thought characterized America’s average citizens, whose responsible uses of rights promoted ordered freedom, these pariahs employed rights in ways that threatened social order, making it more difficult for the nation to fulfill its destiny as the shining city on a hill. As Section 3 argues in depth, Reagan’s legal discourse – which highlighted the rightsbased character of individual freedom – was an emergent feature of the nationalistic political vision that is now so widely accepted.

2.1. Data and Scholarly Location The primary data on which my analysis of Reagan’s legal discourse relies is drawn from the same recently published primary source material that has informed the most recent wave of Reagan scholarship. The first of this material appeared in an edited volume of Reagan’s speeches that spanned the length of his political career (Houck & Kiewe, 1993). This collection includes some of the most prominent of Reagan’s early speeches, including ‘‘The Speech’’ that he delivered in support of Barry Goldwater’s ill-fated 1964 presidential campaign, as well as many of his public addresses as Governor of California and on the presidential campaign trail in 1976. Significantly, most of these speeches were written by Reagan himself.5 They thus compliment the hand-written drafts of speeches, radio broadcasts, and letters that were discovered by political scientist Kiron Skinner in the former president’s collection of private papers, and which make up the remainder (and vast bulk) of the data for my analysis (Skinner et al., 2001, 2003, 2004). Nearly all of this latter material (with the exception of a large number of letters) dates from Reagan’s pre-presidential years, a period during which he wrote prodigiously on an array of topics. These data sources are particularly useful for an analysis of Reagan’s political vision because they are untouched by the hands of speechwriters and other aides; they offer an unmediated account of Reagan’s political vision and discursive style. There is, nevertheless, at least one potential objection to the use of these sources. Given the prominence of presidential rhetoric in modern times (Tulis, 1987), as well as the importance of presidential discourse for the constitution of American national identity (Stuckey, 2004, pp. 2–9), an account of Reagan’s nationalism that largely avoids his presidential pronouncements may be seen as suspect. However, this objection can be overcome for two reasons that are specific to Reagan. First, as Sigelman has established, Reagan’s presidential pronouncements (most of which were

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penned by speech writers) approximated closely in content his prepresidential addresses (Sigelman, 2002).6 Indeed, Reagan expected speechwriters to master his long-held positions on public policy and, especially, his vision of America (Erickson, 1985, pp. 8–10; Muir, 1992, pp. 31–32; Reagan, 1992, in Skinner et al., 2003, pp. 826–827). Second, many of Reagan’s pre-presidential addresses were heard by large numbers of Americans. As General Electric’s primary spokesperson, Reagan extensively toured GE plants throughout the 1950s and early 1960s, conversing with employees during the days and refining his basic political speech during the nights at banquets and other gatherings (Wills, 1987, pp. 336–337; Evans, 2007).7 These experiences helped to make Reagan a prominent political figure even before his election to the presidency. Indeed, the syndicated radio addresses that were broadcast from 1975–1979 on nearly 300 radio stations put Reagan, by his own estimate, ‘‘in touch with ‘20 million Americans each week’’’ (in Skinner et al., 2001, p. xv). Accordingly, unlike most presidents, Reagan’s political vision was quite familiar to many Americans even before ascending to the oval office. The data on which my analysis of Reagan’s political vision rests is thus consistent with Reagan’s later presidential pronouncements, even as it consists of public addresses that were in their own right unusually prominent and well-known. As I have noted, exposing the legal foundation of Reagan’s political vision, and tracing its centrality both to conservative participation in the culture wars and to American politics writ large, is the focus of this article. Fortunately, law and society scholarship offers resources for this sort of inquiry. In particular, scholars have established that legal discourse frequently works as a conceptual resource, providing and/or reinforcing the widely shared norms, expectations, and beliefs with which people interpret their lives and those of others. As a conceptual resource, rights discourse, for example, has cultural effects: it helps us to make sense of, and assess the legitimacy of, the world in which we live (see, e.g., Ewick & Silbey, 1998, pp. 15–23). Appreciating its cultural power leads to the further recognition of the constitutive power of legal discourse. This constitutive influence radiates outward in two directions at once. First, scholars have established that identities (both individual and national) are at least partially constituted through legal discourse. Indeed, legal discourse (especially that which is rights-based) frequently has a constitutive impact on the identities of both those who employ it and those who are its targets (Scheingold, 1974; Brigham, 1988, 1996; McCann, 1994; Silverstein, 1996; Stychin, 1998; Gilliom, 2001; Passavant, 2002; Engel & Munger, 2003; Goldberg-Hiller & Milner, 2003). Engel and Munger (2003, p. 242) make the point: ‘‘rights may


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influence identity by altering how individuals perceive themselves [and others]ybringing about a new perspective on who one is and what one expects.’’ Moreover, as Passavant (2002) argues, the identity-constituting effects of rights discourse frequently work negatively, through the establishment of those who are either incapable of possessing or incapable of properly exercising rights (see also Comaroff & Comaroff, 1997, pp. 365–404). And, as Passavant also argues, there is an inevitably nationalistic dimension to the exclusionary work done by rights discourse. One’s American-ness, for example, is central to the possibility of one’s rights claims being recognized, and ‘‘this possibility of recognition, in turn, is inextricably linked to the normalizing and exclusive patterns of national identity politics.’’ The fact that our rights discourse is ‘‘haunted by the specter of nationalism’’ is vividly demonstrated in the legal discourse employed by Ronald Reagan – discourse that worked to rhetorically construct the villains and, in contrast, the heroes who alternatively threatened and exalted the American nation (Passavant, 2002, pp. 8, 12; see also Stychin, 1998, pp. 23–26). Second, scholars argue that the constitutive impacts of legal discourse provide strategic, instrumental resources for use in the pursuit of individual and collective interests. Precisely because legal vocabularies and forms of knowledge help us to make sense of the social world, they suggest behaviors that are, or are not, appropriate for realizing our goals.8 These methods of sense-making are potent, moreover, because they rely upon widely accepted ideals such as due process, equal treatment, and individual freedom. At its most persuasive, legal discourse thus naturalizes the strategic appeals that it makes, burying their political origins in general, broadly accepted terms. Constitutive both at the level of perception and, accordingly, at the level of articulated action, the discursive conventions of law often provide the foundations for politics. Frequently, John Brigham concludes, ‘‘social action depends upon law’’ (Brigham, 1988, p. 304; see also Harrington & Yngvesson, 1990; McCann, 1994, pp. 6–9; Silverstein, 1996). Most law and society scholarship that details the multiply constitutive power of legal discourse traces its use by, and its effects on, ordinary citizens and/or social movements.9 There has been little attention paid to the effects of the legal discourse of public officials, particularly those who are not affiliated with the formal institutions of law (such as courts).10 There are thus few studies of the ways in which public officials, especially presidents, express their political visions, for example, through the prerogatives of law, and particularly rights; there are fewer studies still of the effects of those expressions. As the following analysis of Ronald Reagan’s vision makes

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clear, however, accounts of the legal discourse employed by public officials can expose the methods by which the ideological foundations of contemporary American politics are built and, later, employed as buttresses of public policy. Indeed, the legal character of Reagan’s political vision made it an attractive template for conservative critique, as well as a strong contender for popular acceptance, in large part because it obscured the partisan leanings of Reagan’s appeals. The legally discursive efforts of the ‘‘Great Communicator’’ have thus worked to transform a series of otherwise partial, partisan appeals into the basic assumptions of a great deal of American public policy.

3. RONALD REAGAN AND THE LEGAL CONSTITUTION OF AMERICAN POLITICS To Free the ‘‘Individual Genius of Man’’ The American dream that we have nursed for so long in this country and neglected so much lately is not that every man must be level with every other man. The American dream is that every man must be free to become whatever God intends that he should become. The restoration and the perpetuation of that dream is the greatest challenge confronting every one of us today. –Ronald Reagan

A particular rendering of the American dream held a preeminent place in Ronald Reagan’s political vision. According to Reagan, America was a nation uniquely dedicated to individual freedom. As he noted during a 1976 radio address: ‘‘America’s strength’’ lay in the way that ‘‘our system freed the individual genius of man,’’ releasing ‘‘him to fly as high and as far as his own talent and energy would take him’’ (Reagan, 1976a, in Skinner et al., 2001, p. 13). Yet, as I have noted, the individual freedom that Reagan celebrated was circumscribed. ‘‘True freedom,’’ he wrote in 1971, ‘‘is the freedom of self-discipline – the freedom to choose within acceptable standards. Take that framework away and you lose freedom’’ (Reagan, 1971a, in Skinner et al., 2001, p. 449). Obedience to law was, for Reagan, a particularly important marker of one’s self-discipline. Take note, again, of Reagan’s nationalistic vision: America offered ‘‘the ultimate in individual freedom consistent with law and order’’ (Reagan, 1964a, in Reagan, 1989a, p. 26; emphasis added). True, ordered freedom was thus contained within specifically legal boundaries. Situated at the nexus of individual freedom and self-discipline, Reagan’s political vision was informed by a distinctively legal understanding.


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A particular conception of equality, moreover, infused each of these constituent parts of Reagan’s vision. As the epigraph to this section makes clear, Reagan held that there were two possible meanings to equality: ‘‘that every man must be level with every other man’’ or ‘‘that every man must be free to become whatever God intends that he should become.’’ Only the second of these meanings was consistent with Reagan’s vision of America. Thus animating Reagan’s emphasis on legally bound individual freedom was a vision of equality that emphasized government’s responsibility to ensure equal chances and opportunities. Reagan’s American dream, accordingly, radiated in two directions at once: it guaranteed, on the one hand, that ‘‘every citizen [has a] right to share in an abundant society proportionate to his ability’’ and, on the other hand, that such an equal opportunity right amounted to ‘‘the ultimate in individual freedom, consistent with law and order’’ (Reagan, 1968b, pp. 13–14). Accordingly, Reagan consistently held that an individual’s right to equal opportunity stood at the foundation of American freedom. The protection of this right was, moreover, government’s primary responsibility. As he told audiences while Governor of California: Our nation is founded on a concern for the individual and his right to fulfillmentyWe are equal before God and lawy[and] let there be no misunderstanding about the right of man to achieve above the capacity of his fellows. [H]ere, to a degree unparalleled any place in the world, we unleashed the individual genius of man, recognized his inherent dignity, and rewarded him commensurate with his ability and achievement. (Reagan, 1968c, pp. 121–122)

But, Reagan claimed, in modern times government had forfeited its responsibility. From the start of his political career, Reagan was convinced that the widespread violation by ‘‘big government’’ of the individual’s right to equality of opportunity – the ‘‘right of man to achieve above the capacity of his fellows’’ – had led America to the precipice. Reagan’s public addresses amounted, in fact, to political jeremiads in which he detailed a coming slide into un-freedom unless the electorate took immediate action to reclaim its lost rights to equal opportunity and, by extension, the ordered freedom that those rights enacted. Indeed, Reagan linked national decline to a voracious, frequently irrational national government that was committed to the perverted logic of equal outcomes and, by extension, personal license. In the hands of big government ominous public policy trends abounded: tax policy was animated by the illegitimate, confiscatory principles of progressivism; property rights were dismissed as antithetical to the public interest; and overzealous intrusions into

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everyday life by ‘‘federal agents’’ deprived citizens of their 4th Amendment rights to privacy.11 Carrying the nation ‘‘a great distance from our founding fathers’ vision of America,’’ the governing practices of big government were animated by the logic of equal outcomes – a logic that was itself rooted in the un-American ‘‘collectivist philosophy of nineteenth-century theorists like Rousseau, Fourier, and Marx’’ (Reagan, 1990, p. 197; Reagan, 1968c, p. 122). The practices of big government thus brought the nation to the edge: Our natural, inalienable rights [to equal opportunity] are now considered to be a dispensation from government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment. (Reagan, 1964a, in Reagan, 1989a, pp. 26, 33)

In emphasizing how big government carried out a wholesale violation of the rights of Americans, Reagan’s legal discourse obscured the partisan leanings of his political vision. With legal discourse Reagan communicated to audiences the magnitude of the threat that big government presented to the ordered freedom upon which American democracy was founded, the degree to which big government threatened the right of each American to follow their ‘‘individual genius.’’ Reagan’s legal discourse thus levitated his political vision above obviously partisan considerations and, in so doing, presented itself as ‘‘hortatory’’ political language. The discourse through which Reagan communicated his vision of America functioned so as to ‘‘persuade a mass publicythat the policies that [the speaker] espouses should be accepted generally’’ (Edelman, 1964, p. 134). Indeed, Reagan’s legal discourse transmitted a persuasive, general narrative that foretold of a coming, yet still reversible, national decline. That narrative, I have argued, focused on how the legal misdeeds of a big government full of faceless ‘‘federal agents’’ subverted the American dream. But, Reagan held, the products of subversion were not faceless and abstract. Instead, governance practiced according to the reigning equal outcomes logic of rights – with its inverted stance on rights, equality, and freedom – generated both heroes and villains. How each employed rights was what marked them as either champions or enemies of the nation.

3.1. Law, Rights, and the Perversion of the American Dream The time has come to reclaim our inalienable rights to human dignity, self respect, [and] self reliance to once again be the kind of people who once made this nation great. –Ronald Reagan


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Observe the Rules or Get Out. Sign on Governor Reagan’s Desk

Ronald Reagan frequently valorized, as he did in a letter written in 1982, those ‘‘forgotten men and women in Americaywho [go] to work, [pay] their bills, [send] their kids to school and [make] this country run’’ (Reagan, 1982a, in Skinner et al., 2003, p. 622). Indeed, the celebration of forgotten Americans – often depicted by Reagan as ‘‘average citizens’’ or, less frequently, as members of the ‘‘silent majority’’ – was a touchstone of Reagan’s political vision.12 Consider this formulation from 1970: The average citizen isywilling to pay his fair share for schools and highways and welfareyBut, he expects every other citizen to pay his fair share too. He expects that money to be spent wisely and equitably for the common good and not for some special class or privilege. (Reagan, 1970a, in Houck & Kiewe, 1993, p. 84)

Reagan’s fondness for farmers, small business owners, and homeowners, for example, all derived from this bedrock understanding of who average citizens were and what it was about them that made their efforts so virtuous. Average citizens were ‘‘simple souls,’’ whose constant, ascetic self-exertion enacted the foundational American belief that ‘‘there just ‘ain’t no such thing as free lunch’’’ (Reagan, 1964b; see also Reagan, 1965, p. 685; Reagan, 1978c, in Skinner et al., 2004, pp. 355–356; Reagan, 1981a, in Reagan, 1989a, p. 63). The virtue of their efforts, moreover, was confirmed with a specifically legal logic: average citizens ‘‘believe in this nation as a nation under God, and that our national purpose is to provide the ultimate in individual freedom consistent with law and order’’ (Reagan, 1968d, p. 138). The esteemed average citizen was, in sum, one who employed their rights to equal opportunity, flying as high as their talents would take them. In so doing, the average citizen practiced ordered freedom. The legal discourse that pervaded Reagan’s political vision thus depicted America’s average citizens as the virtuous denizens of the shining city on a hill. Yet with that legal discourse Reagan also presented average citizens, virtuous though they were, as under constant attack. Indeed, according to Reagan, the average citizen’s problems were double-edged, with each edge implicating rights. First, contemporary liberalism fostered a faulty logic of individual rights that held that Americans were guaranteed equal outcomes and conditions and, short of that, a divine right to make disorder. This perversion of rights, we have seen, assaulted the (legal) underpinnings of the American nation. The new logic of rights led to the illegitimate proposition that ‘‘every man must be level with every other man’’ (Reagan, 1968a, in Houck & Kiewe, 1993, p. 63). Moreover, it led to the equation of rights with

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disorder, such that ‘‘‘civil rights’ [and] the ‘right of dissent’ [is] an excuse to take to the streets for riot and mob violence – under the euphemism of civil disobedience’’ (Reagan, 1968b, pp. 13–14). Accordingly, the misuse of rights had become the engine of national subversion. Such subversive uses of rights had deleterious effects on the rights and interests of average citizens. Reagan decried how the new version of rights led to the conclusion that the hard-working and virtuous were actually responsible for the problems suffered by socially marginal Americans (see, e.g., Reagan, 1964a, in Reagan, 1989a, p. 29). The true cause of continuing marginalization and lack of opportunity, instead, was the misguided efforts of governmental planners, who believed that they could ‘‘solve all the problems of human misery through government and government planning’’ (Reagan, 1964a, in Reagan, 1989a, p. 29). But in so creating programs, procedures, and regulations for the elevation of the less fortunate, government had violated its original purpose, to ‘‘provide opportunity, not smother it; [to] foster productivity, not stifle it’’ (Reagan, 1981a, in Reagan, 1989a, p. 62).13 Second, the equal outcomes version of rights, while not leading to material improvements in the lives of the less fortunate, did have some beneficiaries. The perversion of rights, in which unequal outcomes were the proper cause of social disorder, had led to a situation in which a series of undeserving people were gaining unfair advantages from big government. Worse, these advantages were gained at the expense of average citizens, whose rights and freedoms were sacrificed in a misguided attempt to secure the equal outcomes prescribed by the new and faulty vision of rights. Indeed, Today, unfortunately, we see [our] freedom slowly vanishing on many fronts – all in the name of the common good – and stability sorely threatened by a political and social climate that acknowledges the rights of the individual, but not his responsibilities. (Reagan, 1968e, p. 16)

Over the course of his career, Reagan depicted three particular groups of people as the poisoned fruits of the new vision of rights: campus protestors and their professorial allies, violent criminals, and welfare cheats. It is perhaps unsurprising that Reagan viewed these populations as emblems of the dangers of the new, equal outcomes logic of rights. Even apart from their supposed legal misdeeds, none of these groups were made up of traditionally sympathetic figures. Indeed, a large part of what made Reagan’s vilification of violent criminals and welfare cheats popularly appealing was that each group was overrepresented with historically


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unpopular and stigmatized people: the poor, racial minorities, and women. Yet Reagan’s legal discourse forged between these groups a common subversive identity that was ostensibly not based upon the ascribed characteristics that underlay their historical marginalization. Viewed in this light, Reagan’s attacks on campus protestors take on added significance. According to Reagan, these protestors (and their allies in the liberal professoriate) disavowed the American traditions of equal opportunity and ordered freedom. In so doing, campus protestors announced at once their affiliation with such legal miscreants as violent criminals and welfare cheats and their distance from America’s virtuous, average citizens. Worse, by discarding the equal opportunity vision of rights, campus protestors threatened a social revolt that, if not contained, could spread, like a virus, into the wider population. Accordingly, like violent criminals and welfare cheats, campus protestors emerged in Reagan’s discourse as purveyors of tremendous power; the legal misdeeds of all three groups subverted the nation. I begin with Reagan’s attacks on campus protestors, showing how his legal discourse analogized protestors (‘‘little monsters’’) to violent criminals (‘‘wild animals’’). Both populations, Reagan argued, flouted the limits of law and order. Campus protestors and violent criminals, moreover, employed the new, perverted notion of rights as justification for their lawlessness. Reagan’s depiction of campus protestors and violent criminals as serial abusers of law and rights, finally, leads us to appreciate his more familiar attacks on welfare cheats. Welfare cheats, Reagan held, not only benefited from a governing philosophy that devalued initiative and hard work. As did campus protestors and violent criminals, welfare cheats also took advantage of the reigning, though misguided, vision of individual rights. Convinced that they were due equal outcomes as a matter of right, welfare cheats eagerly cast aside traditional notions of equal opportunity and defrauded the public treasury with ingenious, though morally dubious, schemes of personal enrichment. All told, Reagan’s legal discourse depicted the behavior of all three populations as subversive of the rights and interests of average citizens and, accordingly, the ordered freedom that made up the American dream. And that discourse, I shall argue, worked. It is true that Reagan’s conservatism was consistent with the positions of such high-profile conservatives as William F. Buckley, Jr., Whittaker Chambers, and Barry Goldwater. But Reagan’s presentation of that conservatism through legal discourse naturalized, normalized it; Reagan’s employment of legal discourse moved his political vision beyond ‘‘the local boundaries of time, place, and imagination in which it had one meaningyand [expanded it],’’

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converting it into a ‘‘universal aspiration’’ (Haney-Lo´pez, 2006, p. 89). As a New York Times correspondent observed during California’s 1966 gubernatorial campaign, ‘‘Mr. Reagan’s appeal is subtler, more cleverly phrased, less stimulating to people’s fears, and more plausible [than was that of his predecessors]’’ (Wicker, 1966). Multiply constitutive, Reagan’s expression of his political vision in legal discourse at once provided a strategic template for conservative participation in the culture wars and, through its naturalizing effects, the ideological foundations for a great deal of American public policy.

3.2. ‘‘Little Monsters’’ and ‘‘Liberal Professors’’ Professors should teach you how to think not necessarily what to think. –Ronald Reagan

Ronald Reagan frequently clashed with protestors at California campuses during his governorship.14 He typically analogized the disruptive activities of campus protestors to the violence committed by hardened criminals. Each, he noted, displayed a lack of respect for law and the social standards that it prescribed; they practiced, instead, an unrestrained license. Even worse, both the campus protestor and the violent criminal justified their disorderly conduct by resorting to a perverse logic of rights that suggested that such conduct was constitutionally protected activity. Moreover, in the employment of this illegitimate notion of rights both student protestors and violent criminals were aided by the misguided sympathies of authority figures – cowardly administrators and, especially, liberal professors, on the one hand; soft-hearted judges and incompetent parole boards, on the other. Finally, just as violent crime prevented society from protecting the rights that guaranteed the freedom of average citizens, campus protestors (whom Reagan referred to, in private, as ‘‘little monsters’’) interfered with the rights of the ‘‘silent majority’’ of college students, who wished only for the opportunities traditionally offered through higher education (Reagan, 1969a, in Skinner et al., 2003, p. 190; see also Reagan, 1990, p. 180). Curiously, though, Reagan frequently explained away the actions of student protestors, as distasteful as he found those actions, as little more than the product of uninformed, youthful indiscretion.15 He offered no similar empathy for the campus’s traditional authority figures who refused to enforce on misguided students the needed discipline and instruction (De Groot, 1996, pp. 111, 120–122). For these authority figures (especially ‘‘liberal professors’’) frequently encouraged the protestors, proclaiming that


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it was ‘‘no crime to break the law in the name of social protest’’ and acting, ‘‘in the name of academic freedom,’’ as if ‘‘the campus was a sanctuary immune to the laws and rules that govern the rest of us’’ (Reagan, 1969b, in Reagan, 1989a, p. 42). Reagan recoiled both at such actions and such invocations of academic freedom, declaring that the leaders of lawless protests (who were often professors) should be ‘‘taken by the scruff of the neck and thrown off the campus – permanently’’ (Reagan, 1968f, p. 126). But this sort of unbending response, Reagan argued, was not typically forthcoming from the university community. Although administrators were to blame for their reluctance to mete out severe punishments, Reagan was more troubled by the conduct of much of the professoriate. Transmitting a meme that would become central to conservative participation in the culture wars, Reagan heaped scorn upon ‘‘liberal professors.’’ These professors, who were vastly overrepresented in the academy, were not only ideologically sympathetic to the radical goals of campus protestors; they also provided intellectual cover for the protestors’ reprehensible actions. Unstintingly critical of the free market and traditional American values because they did not produce equal outcomes, these professors derided American society as cruel, racist, and sexist. Such criticism, Reagan argued, amounted to an abuse of ‘‘academic freedom’’ by professors, whose tirades misshaped young, impressionable minds. Moreover, such anti-American outbursts defeated what Reagan considered to be the true goal of education: ‘‘society’s attempt to enunciate certain ultimate values upon which individuals and hence society may safely build.’’ Liberal professors trashed traditional American values and offered nothing in their stead; they failed to understand that universities were ‘‘institutions designed to impart sound discipline based on moral standards which will become self discipline in the individual student’’ (Reagan, 1971a, in Skinner et al., 2001, pp. 448–449). The professors’ definition of academic freedom was a large part of the problem. The professors limited academic freedom only to their rights to teach as they wished. Such an understanding ignored ‘‘the student’s academic freedom and the right of parents to have some say as to what their children are learning,’’ to say nothing of the academic freedom that should be enjoyed by tax-paying citizens, who ‘‘finance the whole operation and have some beliefs about the kind of schooling they wish to make available with their contributions’’ (Reagan, 1971a, in Skinner et al., 2001, p. 446). As Reagan put it in a 1971 letter to the editor: ‘‘professors should teach you how to think not necessarily what to think’’; they should not

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‘‘under the name of academic freedomydemand the right to indoctrinate’’ (Reagan, 1971a, in Skinner et al., 2001, p. 448). Yet liberal professors taught that American society was unequal and, thus, corrupt; the professors then sent the most radical of their students out like a ‘‘virusy[to] infect the campus’’ (Reagan, 1969b, in Reagan, 1989a, p. 41). Indeed, these professors ‘‘looked kindly upon any effort to disrupt campus and community life’’ (Reagan, 1979b, in Skinner et al., 2004, p. 448). The lawlessness of campus protestors, and the intellectual practices of the liberal professors who encouraged them, caused great harm to the majority of the university’s students. Although the radicals were exceedingly disruptive, they were ‘‘admittedly only a few’’ of those enrolled in classes.16 There existed on campus, Reagan noted, a ‘‘silent majority’’ of students. These students harbored legitimate grievances of their own; but they resisted the radical entreaties of the professors, refrained from lawlessness, and did their best to exploit the more traditional opportunities for learning and personal growth offered at institutions of higher education (Reagan, 1979c, in Skinner et al., 2004, p. 449; Reagan, 1969c, in Houck & Kiewe, 1993, p. 74; see also Reagan, 1978d, in Skinner et al., 2001, pp. 411–412). But the minority ‘‘subversive’’ element on campuses was so dedicated to disrupting the normal operations of the university that it was increasingly difficult for the average, non-radical student to concentrate on their studies (see, e.g., Diggins, 2007, p. 143). There were, in Reagan’s view, significant parallels between the silent majority located on campus and that which was dispersed generally throughout the nation. Both groups were hard-working, earnest, and wellmeaning; members of each group were the sorts of people whom Reagan championed as American heroes. And members of each group burned with the same resentment – resentment over how their rights had been neglected amidst the noisy protests of those who proclaimed that their rights (to equal outcomes specifically) trumped all other considerations. Consider, for example, the figure of Alan Bakke, whose name graces the U.S. Supreme Court’s landmark (Regents of the University of California v. Bakke, 1978) case dealing with the use of affirmative action policies in higher education (Regents of the University of California-Davis v. Bakke 438U.S. 265). Bakke was, for Reagan, iconic; he symbolized the campus version of the forgotten American: the hard-working average citizen whose interests were nevertheless harmed by American society’s mistaken equation of individual rights with equal outcomes. After having been rejected twice for admission to UC-Davis’ medical school despite scoring significantly


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higher on medical school entrance exams than had some admitted students who belonged to traditionally disadvantaged groups, Bakke claimed that the medical school’s affirmative action program violated his constitutional rights. The problem, according to Reagan, was that UC-Davis’ affirmative action program exceeded conventional notions of equal opportunity and, instead, endorsed the logic of equal outcomes. I believe it is right that we have a program to ensure equal opportunity for those aspiring to the [medical] profession. But surely we can come up with something that doesn’t result in the kind of injustice done to Alan Bakke. (Reagan, 1978e, in Skinner et al., 2004, pp. 274–275)

Alan Bakke thus symbolized the tarnished fates of good, responsible college students everywhere; he was a member of a ‘‘generation that is justifiably resentful of being fed into the knowledge factory with no regard to their individualism, their aspirations or their dreams’’ (Reagan, 1969c, in Houck & Kiewe, 1993, p. 81). Beset, on the one hand, by campus radicals and liberal professors who spewed noxious accounts of individual rights and, on the other hand, by indifferent, even cowed university administrators, the average university student was lost, and not ‘‘even missed’’ (Reagan, 1969c, in Houck & Kiewe, 1993, p. 82). The fate of the silent majority on campus approximated the fate of the silent majority writ large in a final, especially revealing, way. Not simply isolated examples, the neglect experienced by average students undermined America’s commitment to individual rights and, so, subverted the foundations of the nation itself. For universities Were created, and are presently maintained, to insure perpetuation of a social structure – a nation, if you willyOur nation is founded on a concern for the individual and his right to fulfillment, and this should be the preoccupation of our schools and colleges. The graduate should go forth, literally starting on a lifetime of learning and growing and creativity that will in turn bring growth and innovation to our society. (Reagan, 1968c, pp. 120–121)

The university was responsible for perpetuating respect for individual rights and, in so doing, priming the engines of national growth. The subversion of this mission by protesting students and liberal professors was thus a problem of national scope. America indulged the rights of campus protestors, and their professorial allies, and ignored the rights of its hardworking, average college students at its own peril. More so than his depiction of radical college students, Reagan’s rendering of the liberal professoriate and the multiple dangers that its employment of the equal outcomes logic of rights inflicted – on academic freedom; on the

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University’s traditional mission to ensure national order and growth; and on the rights and interests of ordinary university students – had lasting influence. Reagan’s image of the university under siege from a noxious vision of individual rights is, in fact, both the discursive cornerstone of culture war battles against the presence of PC on university campuses and a widely shared conviction that animates recent policy trends in higher education.

3.3. Political Correctness and the ‘‘Tyranny of the Minority’’ According to much conservative commentary, liberal professors are obsessed with PC. This obsession is said to lead PC liberal professors to castigate the traditional markers by which success is legitimated in America, including concepts such as merit, fairness, quality, and hard work. According to prominent conservative Lynne Cheney, PC professors are convinced that ‘‘any situation that produces unequal results’’ is evidence of the fundamentally racist, sexist, and elitist currents of American culture and society (Cheney, 1995, p. 19). Responding to such inequality of results by wielding their academic freedom as a political bludgeon, liberal professors preach to students the bankruptcy of conventional American values even as they abandon or, what is more disturbing, heavily critique such classic Western texts as those produced by Shakespeare, Milton, Cervantes, and Rousseau. The PC view, which holds that such classics were ‘‘mostly written by a privileged group of white males’’ and, so, are ‘‘elitist, racist, and sexist’’ denies the timeless, transcendent quality of the works. Indeed, PC professors reduce all knowledge to its political foundations: ‘‘the key questions are thought to be about gender, race, and class. What groups did the authors of these works represent? How did their books enhance the social power of those groups over others?’’ (Cheney, 1988, pp. 11–12). Conservative commentators thus accost liberal PC professors for illegitimately employing their academic freedom, for demanding ‘‘the right to indoctrinate’’ students and turn their classrooms into political arenas biased against traditional American and Western values (Reagan, 1971a, in Skinner et al., 2001, p. 448; see also Horowitz, 2007). But, just as Reagan held, the effects of PC on the traditional mission of the university – to foster social cohesion and growth – are even more troubling. According to conservative author (and former Reagan aide) Dinesh D’Souza, liberal PC professors were radicalized in the cauldron of 1960s identity politics and are, in accord with their political sympathies,


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leading a ‘‘victim’s revolution on campus’’ (D’Souza, 1991; see also Adler & Starr, 1990; Bernstein, 1990). PC professors and university administrators abandon the great American principles of merit, fairness, and, especially, equal opportunity in favor of nakedly political practices that elevate the interests of the less fortunate. And, because universities are a ‘‘leading indicator’’ of social trends, the PC-infested campus is the ‘‘birthplace and testing ground for this enterprise in social transformation’’ (D’Souza, 1991, pp. 13–14).17 Indeed, PC on campus strikes directly at a democracy’s fundamental responsibility to protect the right of all individuals to equal opportunity. Premised on the belief that minorities, for example, are ‘‘more equal than others,’’ the PC-infused campus threatens a ‘‘tyranny of the minority’’ in which the logic of equal outcomes reigns; non-preferred groups must thus ‘‘subordinate their individual rights to the greater good of group equality’’ (D’Souza, 1991, p. 237). But [D]emocracy is not based on the premise of equal endowments, but of equal rights. It does not guarantee success, but it does aspire to equal opportunity. This opportunity is extended not to groups as such, but to individuals, because democracy respects the moral integrity of the human person, whose rights may not be casually subordinated to collective interests. Democracy requiresy[the university] to treat students equally, as individuals. (D’Souza, 1991, p. 250)

To the extent that PC liberal professors abuse their academic freedom, preaching the illegitimate logic that Americans have rights to equal outcomes, they poison America with a toxic brew. They transmit the most radical of their students out like a ‘‘virusy[to] infect the campus’’ and beyond with radical attacks on core American values and institutions (Reagan, 1969b, in Reagan, 1989a, p. 41). Legal values and institutions are especially vulnerable. For PC, which begins in the classroom, teaches that ‘‘legal principles represent white male thinking and [attacks] the notion that the law ought to hold everyone to the same standard’’ (Cheney, 1995, p. 18). ‘‘How and when did all this begin?’’ asked Reagan in 1969. It started with those who proclaimed, in the name of academic freedom, that the campus was a sanctuary immune to the laws and rules that govern the rest of us. Then equal opportunity at the starting line [became] an extended guarantee of at least a tie at the finish of the race. (Reagan, 1969b, in Reagan, 1989a, pp. 41–42)

Perversely employing a rights-based attack on conventional understandings of rights, PC threatens the foundations of American democracy.18 The people most immediately and directly harmed by the multiple perversities of PC, however, are the vast majority of university students

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(Reagan’s ‘‘silent majority’’) who seek only the educational opportunities traditionally associated with campus life. These students, as Reagan argued, suffer from the professor’s abuses of academic freedom such that they emerge from the university unschooled in the classic texts of Western morality and are, accordingly, incapable of contributing to public conversations about the abiding truths that those texts contain (Cheney, 1988). Instead, PC-inundated students are ‘‘day after dayypresented a drearily distorted picture of the society in which they live’’ that discourages them from appreciating the positive aspects of American history and culture (Cheney, 1995, p. 29). The anxieties voiced by conservatives over the ‘‘rising hegemony of the Politically Correct’’ (Bernstein, 1990) on university campuses are widely shared and bi-partisan. In the early 1990s, Newsweek, Time, and U.S. News and World Report all printed lengthy features that borrowed heavily from the anti-PC narratives of conservative commentators (Adler & Starr, 1990; Leo, 1990). Similarly, conservative anxiety about the influence of PC once it leaves the campus crosses partisan boundaries. Just as commentators such as Cheney and D’Souza fret over the damage that an equal outcomes logic of rights is likely to cause to the American nation, so too does the liberal historian Arthur Schlesinger, Jr. wring his hands over how PC, and the multi-cultural society that it portends, threatens ‘‘the disuniting of America’’ (Schlesinger, Jr. 1991). Time’s Robert Hughes agrees with Schlesinger that PC leads to the ‘‘fraying of America’’ such that the values and principles conventionally associated with American identity (equal opportunity, fairness, merit, hard work, freedom of speech, etc.) are discarded, replaced by balkanized forms of identity that elevate group origins over individuality (Hughes, 1992; see also Rauch, 1992). Such accounts of PC, which became a mainstay of American thought by the early 1990s, rely heavily upon Ronald Reagan’s earlier castigation of the liberal professoriate. Although Reagan’s original outrage was directed toward radical student protestors, we have seen that he quickly targeted the nefarious influence of liberal professors as the primary cause of student unrest. Reagan railed against the professoriate, accusing its members of employing their academic freedom in ways that misshaped impressionable young minds with un-American propaganda that trashed conventional national values – the most important of which was that ‘‘our nation is founded on a concern for the individual and his right to fulfillment.’’ This abuse of academic freedom, as conservatives would later emphasize, both destroyed the university’s mission (‘‘to insure perpetuation of a social structure – a nation’’) and unjustly disadvantaged the ‘‘silent majority’’ of


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university students who, like Alan Bakke, suffered as a result of the university’s indulgence of the equal outcomes logic of rights. Accordingly, although Reagan did not assign the intellectual work of the liberal professoriate the title of ‘‘political correctness,’’ the constituent elements of that title – the forms of invective that it hurls upon contemporary academia – were developed and popularly deployed by Reagan himself. Reagan’s legal discourse, when directed toward student protestors and, especially, their allies in the liberal professoriate, thus provided the template for a great deal of the contemporary understanding (both partisan and general) of American higher education. And this depiction of the multiple inadequacies of the university, especially its leftist professors, sits at the ideological foundation of contemporary public policy in the area of higher education. Indeed, the increasingly severe cuts in public funding for universities (states now spend about two-thirds of what they spent in 1980 while ‘‘in the early 2000’s per-student expenditures in public universities fell by 15 percent’’) are directly related to widespread acceptance of the anti-PC narrative (Newfield, 2008, p. 265). As Newfield (2008) argues, the belief articulated by Reagan and his intellectual progeny that leftist professors indoctrinate students with a perverted account of equality has devalued the intellectual product of universities and eroded support for their public funding. Desperate to recoup this lost funding, university administrators have responded either by raising the cost of tuition (thereby harming the public university’s original egalitarian goal) or by appealing to private funding sources. Private funding, however, tends not to adequately support the humanities and the social sciences, as they are not viewed as contributing to market growth (Newfield, 2008, pp. 189–194, 199–207). The reliance on private funding thus disproportionately harms those areas of the university most often targeted by anti-PC commentators as the havens of leftist professors. Moreover, widespread attacks on the use of affirmative action in the public sector have found their richest expression in the area of admissions for higher education. Anti-PC narratives emphasize that affirmative action is one of the primary institutional manifestations of the misguided notion that Americans have rights to equal outcomes, regardless of their talents or merits. Anti-PC critics such as those who make up the National Review’s editorial board thus rejoice at the continuing electoral successes of the sorts of ‘‘colorblind equal opportunity,’’ ‘‘civil rights’’ initiatives and referenda that have so far outlawed race and gender-based affirmative action in university admissions in California, Washington, and Michigan (National Review, 2007).

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Accordingly, the de-funding of the public university, as well as the increasingly successful campaign against the use of affirmative action in university admissions are, in part, products of the conservative offensive against PC and its animating ideal: the equal outcomes logic of rights. These trends in higher education policy are thus partially directed against the menace of leftist professors and the toxic doctrine of equal rights that they seek to indoctrinate in their students and, through them, to insert into the wider society. They are counter-subversive attempts to defend America from a university-instigated assault on traditional values, especially, as Reagan argued, the nation’s ‘‘concern for the individual and his right to fulfillment’’ (Reagan, 1968c, p. 120). 3.4. ‘‘Wild Animals,’’ Victim’s Rights, and the State’s Criminal Incompetence When no city street is safe for our women after dark we have the right to insist that the victim of a crime has rights at least equal to those of the criminal. –Ronald Reagan We need a renewed emphasis on, and enhanced sensitivity to, the rights of victims. [T]he personal tragedy of the victim is [our] own tragedy as well. –Ronald Reagan, Presidential Proclamation 4831

The equal outcomes understanding of rights that the university incubated was, Reagan held, partially responsible for the rise in crime beginning in the 1960s. Convinced, as were campus protestors and their professorial allies, that Americans had rights to equal outcomes, criminals (and their misguided advocates in the criminal justice system) relied upon the disadvantages associated with their socio-economic circumstances as justifications for vile behavior. Thus believing that the limits of law and order were illegitimate, criminals increasingly felt justified in creating disorder. Contemporary America’s undue solicitude of the rights and interests of criminals, moreover, occurred at the expense of average citizens, who were themselves doubly victimized: by criminal behavior, on the one hand, and by the criminal justice system’s neglect, on the other hand. Indeed, Reagan was convinced that by the mid-1960s the devaluing of American law and order that propelled the efforts of campus protestors had begun also to hamstring attempts to control violent crime. The pervasive sense that American laws were illegitimate had led to a situation in which violent criminals were treated gently, if not excused of responsibility for their


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actions altogether. At the same time, they were frequently granted new and broad rights to commit further disorder against the rights, interests, and bodies of America’s average citizens. Accordingly, Reagan assigned a single, rights-based cause to two different types of criminal action: civil disobedience (such as that favored by campus protestors) and violent assault. Each type of crime, he argued, was premised on the twin notion that, first, the laws of the nation were illegitimate and that, second, the rights of criminals – who were not responsible for their crimes – were more important than the rights of those whose interests or bodies they victimized.19 The campus protestor and the violent criminal were thus working from the same flawed moral perspective. Each miscreant, moreover, could be distinguished from the ‘‘good, responsible people who make up the vast majority of the [American] community’’ (Reagan, 1968a, in Houck & Kiewe, 1993, p. 58). The breakdown in American law and order, Reagan alleged, was the product of a faulty diagnosis of the causes of crime – a diagnosis that implied that equalizing socio-economic conditions was the necessary cure. Although fashionable among academic, political, and legal elites, the insistence that ‘‘poverty causes crime’’ was a ‘‘sociological fairy tale.’’ Remarking that a decrease in poverty rates between 1950 and 1975 coincided with a massive increase in violent crime, Reagan noted also how ‘‘we had possibly the lowest crime rate in our history at a time when poverty was most widespread during the years of the great depression (sic)’’ (Reagan, 1976b, in Skinner et al., 2001, pp. 400–401).20 This sociological fairy tale was not only of dubious empirical value. Alarmingly, it had led also to a ‘‘permissive philosophy’’ that treated calls for ‘‘law and order’’ not as a ‘‘cry for help’’ from average citizens beset by increasing rates of violent crime, but rather as ‘‘an expression of bigotry,’’ as ‘‘code words that really mean a call for racial discrimination.’’ But, in fact, law and order was a ‘‘simple, perfectly respectable’’ phrase; decrying it as cruel and retrograde led to the perverse conviction that ‘‘society not the criminal is to blame for crime.’’ Such a misplacement of blame for crime, according to Reagan, led to reductions in punishment that actually encouraged more violent crime. Indeed, theories of crime that assigned its origins to socio-economic background ‘‘ignored [the] obvious answer’’ that ‘‘in the main increase in crime is proportionate toydecrease in punishment’’ (Reagan, 1975a, in Skinner et al., 2004, pp. 37–38; Reagan, 1976c, in Skinner et al., 2001, p. 401; see also Reagan, 1977e, in Skinner et al., 2004, pp. 142–143 and Reagan, 1978f, in Skinner et al., 2004, pp. 254–255).21 As Reagan told an audience in 1968, ‘‘Let us have an end to the idea that

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society is responsible for each and every wrongdoer’’ and let us instead ‘‘return to a belief in every individual being responsible for his conducty with punishment immediate and certain’’ (Reagan, 1968g, p. 28). Moreover, undue sympathy for the rights of violent criminals led judges, parole boards, and legislators to devalue, and even ignore, the well-being of crime victims (see, e.g., Reagan, 1977f, in Skinner et al., 2004, pp. 239–240; Reagan, 1978f, in Skinner et al., 2004, pp. 254–255; Reagan, 1978g, in Skinner et al., 2004, pp. 304–305). Worse, the loss of ‘‘common sense’’ in matters of law and order led to a literal assault on the rights and freedoms of average citizens, turning their neighborhoods into places ‘‘not even safe in the daytime’’ (Reagan, 1968g, p. 22; see also Reagan, 1969b, in Reagan, 1989a, pp. 41–42). To make the point, Reagan regaled audiences with graphic tales of the exploits of violent criminals, whom he described as ‘‘wild animals’’ let loose from the zoo (Reagan, 1979d, in Skinner et al., 2004, p. 452). Reagan used these tales to illustrate how misplaced regard for the rights of criminals was responsible for the breakdown of law and order.22 For the stock criminal to whom Reagan alluded was typically one whose rights had been vindicated, usually in court, either before or after the criminal conduct in question (see, e.g., Reagan, 1968g, pp. 27–28; Reagan, 1978h, in Skinner et al., 2004, pp. 369–370; Reagan, 1978i, in Skinner et al., 2004, pp. 281–282; Reagan, 1979d, in Skinner et al., 2004, pp. 451–452). Undue solicitude for the rights of criminals thus threatened the ‘‘right of an honest man to his life, the right of a child to walk on the streets without fear or [the right] of a housewife to feel secure in her own kitchen’’ (Reagan, 1978f, in Skinner et al., 2004, p. 254). Particularly infuriating were the U.S. Supreme Court’s protections of the 4th and 5th Amendment rights of ‘‘obviously guilty’’ criminal suspects in such cases as 1966’s Miranda v. Arizona. These protections ‘‘resulted in some great miscarriages of justice as suspects, due to technical error, have gone free even though there was overwhelming evidence of their guilt’’ (Reagan, 1977g, in Skinner et al., 2004, p. 147). Such sympathy for the rights of criminals ignored the rights both of the already victimized and those of any future victims brutalized by criminals who, ‘‘contrary to common sense,’’ had been turned ‘‘back out on the streets’’ (Reagan, 1978i, in Skinner et al., 2004, pp. 282–283). ‘‘We must preserve the rights of the accused,’’ Reagan concluded, but matters had gotten out of hand: too often the parole boards, judges, and administrators who made up the criminal justice system had forgotten ‘‘government’s obligation to protect the [rights of the] law-abiding’’ (Reagan, 1977g, in Skinner et al., 2004, p. 147; see also Reagan, 1972, p. 68).


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Reagan’s law-and-order discourse thus displayed his unease about the place of rights in contemporary American society. On the one hand, he championed the rights of average citizens, specifically their rights to be free of crime and disorder. On the other hand, he instructed audiences about how the political and cultural elites who made up the American criminal justice system were in thrall to a faulty vision of crime as the result of unequal socio-economic conditions. This led elites to forget the rights of both average citizens and crime victims, preferring instead to secure the rights of ‘‘wild animals’’ who were quickly turning America into a ‘‘jungle’’ run by ‘‘savage’’ instinct (Reagan, 1968a, in Houck & Kiewe, 1993, p. 58; see also Reagan, 1969b, in Reagan, 1989a, p. 41). The use, and misuse, of rights helped Reagan to distinguish for his audiences the virtuous, if increasingly frightened, citizen from the social pariah whose irresponsible, criminal behavior was undermining the ordered freedom that animated the American dream.

3.5. Victims All! From ‘‘Sociological Fairy Tales’’ to ‘‘War on Crime’’ We have seen how Ronald Reagan’s legal discourse highlighted the American criminal justice system’s misguided sympathy for the rights of socio-economically disadvantaged criminals and its unconscionable neglect of the rights of the average citizens whose interests and bodies were victimized by those criminals. On the one hand, Reagan’s attacks were consistent with other ‘‘law-and-order’’ narratives that were prominent in the 1960s and 1970s (see, e.g., the broadsides offered by Barry Goldwater, George Wallace, and Richard Nixon23). On the other hand, Reagan’s unstinting focus on the victims of crime – as relayed to audiences with tales of crime and (lack of) punishment – set his attacks of the criminal justice system apart from the other familiar narratives of the time. Accordingly, while Nixon’s later law-and-order narrative is perhaps more well-known, Reagan’s personalization of the crime victim during the 1966 gubernatorial race in California displayed that the crime issue had potent political appeal (Perlstein, 2008, p. xii). In fact, Reagan’s arguments that the criminal justice system should be oriented away from the rights of the criminally accused and toward the rights of crime victims popularized the discursive tone and content later employed by the ‘‘victim’s rights’’ movement and its conservative allies. This movement, according to Sarat (2001) and Simon (2007), is the inspiration for the contemporary ‘‘war on crime’’ and its attendant practices. Indeed,

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since its inception in the early 1970s the victim’s rights movement has scored some impressive victories. It has been particularly successful in convincing both state legislators and members of Congress to reform the criminal process so as to afford to crime victims a greater presence and voice in the prosecution of their victimizers.24 More important than its legislative accomplishments, however, has been the movement’s ideological success. Aided by the sympathetic formulations of conservative intellectuals, such as Charles Murray, Paul Cassell, and U.S. Supreme Court justice Antonin Scalia, the victim’s rights movement has entrenched a new ‘‘representational system’’ in American political practice (Simon, 2007, p. 100; see also Murray, 1994, pp. 168–172; Cassell, 2004, generally; and Scalia’s dissent in Booth v. Maryland (1987) [482 U.S. 519– 522]). As Simon argues, the crime victim has emerged as an idealized political subject; the crime victim is ‘‘representative of the common person whose needs and capacities define the mission of representative government’’ (Simon, 2007, p. 7). Indeed, the sea change in American criminal justice policy over the last generation has been inspired, and justified, by reference to the needs of crime victims. The ‘‘war on crime,’’ and the gettough-on-crime responses (mandatory minimum sentences, ‘‘three strikes’’ laws, the flourishing of ‘‘Supermax’’ prisons, etc.) that it encourages, is thus in the name of protecting the most basic of civil rights: the ‘‘right of an honest man to his life, the right of a child to walk on the streets without fear or [the right] of a housewife to feel secure in her own kitchen’’ (Reagan, 1978f, in Skinner et al., 2004, p. 254). Insofar as its prevailing discourses and material practices are indebted to such a focus on the rights of crime victims, the contemporary American criminal justice process is thus anchored by Ronald Reagan’s legal discourse. As Reagan proclaimed in 1981: ‘‘We need a renewed emphasis on, and enhanced sensitivity to, the rights of victims. These rights should be a central concern of those who participate in the criminal justice system, and it is time all of us paid greater heed to the plight of victims’’ (Reagan, 1981b). Reagan’s depiction of an America whose most valued, innocent citizens are under siege from unrepentant violent criminals, on the one hand, and an incompetent criminal justice system, on the other hand, has, moreover, exceeded the boundaries both of conservative critique and criminal justice policy itself. Popularly accepted as a truism, popular culture texts (Law and Order, Batman, The Sopranos, etc.) abound with tales of the breakdown of American law and order. Such tales are in part responsible for the hysterical reactions of many death penalty jurors, for example. These jurors are convinced, against the most reliable evidence, that the criminal justice


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system will be unable to hold the most vile of its clients and that, accordingly, a vote for a life sentence will ensure that, upon release or escape, the convict will seek revenge upon the individual jurors for their conviction and sentence (Sundby, 2005, pp. 36–42). Such a depiction encourages among ordinary citizens an increased disposition toward capital punishment specifically and toward harsher punishments in all areas of criminal justice generally (see, generally, Hallinan, 2001; Sarat, 2001). It encourages them, Simon argues, to support as a matter of conventional wisdom a war on crime that is itself made up of policies that enact ‘‘twin principlesy: (1) the system is the problem; (2) the victim is the key’’ (Simon, 2007, p. 101). The contemporary war on crime emerges as a logical response to the supposedly forgotten rights and interests of crime victims. Materializing in multiple social domains, the obsession with unrepentantly violent criminals and their innocent victims enacts ‘‘a simple morality play that dramatizes the conflict between good and evil.’’ And this play ‘‘helps us to make sense ofythe dangers of, andythe solutions to problems posed by crime’’ such that widespread fear of evil, ‘‘unknown predatorsytriggers the idea that the appropriate response to crime is punishment’’ (Scheingold, 1984, p. 60). The American war on crime thus amounts to a new style of governance, which Simon terms ‘‘governing through crime.’’ Having become ‘‘central to the exercise of authority in America,’’ the ‘‘technologies, discourses, and metaphors of crime and criminal justice have become visible features of all kinds of institutions’’ such that the problem of crime promotes ‘‘governance by legitimizing and/or providing content for the exercise of power,’’ especially the allocation of governmental resources away from welfare state prerogatives (Simon, 2007, pp. 4–5). The contemporary war on crime is pursued according to a mode of governance that disavows such ‘‘sociological fairy tales’’ as the ‘‘belief that social injustice is the primary cause of criminal action’’ and embraces instead the common sense that ‘‘criminals, for the most part, are not desperate people seeking bread for their familiesycrime is the way they’ve chosen’’ (Reagan & Hobbs, 1976, pp. 113, 111). Accordingly, the ideological foundations of the contemporary American criminal justice process discard the equal outcomes understanding of individual rights, instigating a punitive regime of governance that refigures contemporary American society as a penal state, not a welfare state. The American war on crime, which doubles as a war on the logic of the welfare state, is thus ideologically anchored by Reagan’s elemental distinction between criminals who are wrongly empowered with rights and innocent victims who are cruelly deprived of rights.

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It is fitting that Reagan’s attacks on welfare recipients – the monstrous icons of the American welfare ‘‘Leviathan’’ – shared the distinction between average, law-abiding citizens and irresponsible social pariahs that was central to his understanding of American law and order. And although Reagan’s broadsides against the American welfare system, and those who administered it, are well-known, a second characteristic that they shared with Reagan’s complaints against both violent criminals and campus protestors is less well-recognized. Indeed, Reagan argued that welfare cheats also employed the dubious equal outcomes logic of rights in their scurrilous quests for personal enrichment.

3.6. American Leviathan: On ‘‘Welfare Queens’’ We [have] accepted the questionable premise that welfare is a right. It is time to disabuse ourselves of [this] idea. –Ronald Reagan

The welfare rights movement appeared in the summer of 1966. Inspired both by the successes of the Civil Rights Movement and by the more egalitarian decisions of the Warren Court, the movement called for higher welfare grants, access to better jobs and job training, and increased autonomy from the oversight of caseworkers. Its emergence ‘‘an astounding development,’’ the welfare rights movement broadcast widely the demands of a population that had long been marginalized (Kornbluh, 2007, p. 16). The existence of this population, and the use of a rights-based language to pursue their interests, was not, however, news to Ronald Reagan, who had determined long before the advent of the welfare rights movement that American welfare policy – a ‘‘monster’’ and ‘‘Leviathan of unsupportable dimensions’’ – was of vital concern to the life of the nation. Indeed, welfare policy stood, for Reagan, as a vivid example of the dangers of the equal outcomes understanding of rights. Far too often, Reagan believed, the actual beneficiaries of welfare policy were undeserving, rapacious hucksters. And their bogus rights claims to a governmentally subsidized living harmed the interests both of America’s virtuous, average citizens and the nation itself. Throughout his political career, Reagan mounted a vigorous offensive against welfare. He argued, first, that welfare demeaned and infantilized its recipients, making them dependent on governmental assistance and, so, robbed them of their initiative to become self-sufficient (Reagan, 1964a, in


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Reagan, 1989a, p. 29; Reagan, 1980, in Skinner et al., 2003, p. 588).25 Reflecting on the claim of the National Welfare Rights Organization that ‘‘everyone in this country has a right to share the wealth,’’ Reagan worried that such an approach ‘‘treat[ed] only the material needs of man [and] will not endow him with nobility of spirit, creativity, and the unselfish desire to become productive’’ (Reagan, 1978j, in Skinner et al., 2004, p. 260).26 The equal outcomes logic of rights thus failed to recognize how welfare dependence was destroying the ‘‘spirit and character of our people’’ (Reagan, 1975c, in Skinner et al., 2004, p. 24). Prefiguring his wife’s later crusade against drug abuse, Reagan implored Americans to just say no to such rights claims, for ‘‘welfare is a dangerous drug destroying the spirit of people once proudly independent. Our mission should be to help people kick [the] habit’’ (Reagan, 1978j, in Skinner et al., 2004, p. 261). Intoxicated by a potent, yet dangerous legal claim, the American welfare system had become a ‘‘monster destroying that which it was intended to help – our most precious resource – our people’’ (Reagan, 1971b, in Houck & Kiewe, 1993, p. 107; see also Reagan, 1990, pp. 185, 189). The dependency fostered by big government’s welfare policy was unsettling.27 But instances of welfare fraud were, for Reagan, intolerable. Indeed, Reagan’s second, and more vigorous, critique of welfare was premised on the claim that ‘‘almost every day, some new and shocking example of welfare abuse comes to light’’ (Reagan, 1971b, in Houck & Kiewe, 1993, p. 102). Confident that his audiences had ‘‘actually seen examples’’ of welfare fraud themselves, Reagan bemoaned how enterprising, able-bodied hucksters were benefiting, as were campus protestors and violent criminals, from the reigning, yet toxic vision of rights. The entrenchment of this vision of rights led many on welfare (as well as those who administered it) to see ‘‘poverty as a perfectly acceptable career’’ (Reagan, 1971b, in Houck & Kiewe, 1993, pp. 103, 105). Reagan’s attacks on welfare cheats were, from the beginning of his political career, a consistent element of his public appeals (see, e.g., Reagan, 1964c, in Evans, 2007, p. 242). Indeed, in announcing his candidacy for Governor of California in 1966, Reagan railed against that ‘‘segment of society which prefers making welfare a way of life, freeloading at the expense of conscientious citizens’’ (Bart, 1966). By 1970 he was blasting a welfare policy that ‘‘[wasted] money on those who should get off their seat and get to work,’’ and by 1971 he was calling welfare ‘‘a Leviathan of unsupportable dimensions’’ that was regularly abused by those ‘‘whose greed is greater than their need’’ (Reagan, 1970b, in Houck & Kiewe, 1993, p. 91; Reagan, 1971b, in Houck & Kiewe, 1993, pp. 99–100; see also Reagan,

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1976d, in Skinner et al., 2001, pp. 390–391). And by the time that Reagan left California politics in 1974 to pursue the Presidency, welfare abuse had taken on a human face. A major portion of Reagan’s 1976 presidential primary stump speech was dedicated to the multiple evils of American welfare policy (see, e.g., Reagan, 1976e, in Skinner et al., 2001, p. 460; see also Reagan, 1977h, in Skinner et al., 2001, pp. 393–394). Although it was not the only example of welfare fraud that Reagan relayed to audiences, the infamous tale of the ‘‘Chicago welfare queen’’ was the one that captured widespread attention. Indeed, the tale – which Reagan related to audiences, to members of Congress, and to visiting dignitaries throughout his later presidential years – has come in the public mind to symbolize the general issue of welfare fraud, such that ‘‘the welfare queen script has assumed the status of common knowledge’’ (Gilliam, Jr. 1999; see also Cannon, 1991, pp. 456–457; Reagan, 1982b, in Skinner et al., 2003, pp. 309–310). The story, according to Reagan, was one in which a ‘‘Chicago woman used 80 names, 30 addresses, and 15 telephone numbers in collecting food stamps, social security, welfare, and Veterans’ benefits from four deceased but non-existent husbands. Her tax free-cash income alone was $150,000 a year’’ (Reagan, 1976e, in Skinner et al., 2001, p. 459). Reagan told the story often, even though media reports challenged its veracity, suggesting that Reagan had grossly exaggerated the case of Linda Taylor (an African-American woman whose actual fraud was reported at an amount of $8,000). In a radio address from October 1976, Reagan responded to those ‘‘who thought I’d padded the story for political purposes’’ (Reagan, 1976f, in Skinner et al., 2004, p. 76). Relying upon new information that appeared in the Chicago Tribune, Reagan told of how the story of the ‘‘welfare queen’’ was even more galling than he had previously thought. [Her] trail extends through 14 states. She had used 127 namesyShe had 50 social security numbers and 50 addresses in Chicago alone plus an untold number of telephones. She has 3 new cars, a full length mink coat and her take is estimated at a million dollars. (Reagan, 1976f, in Skinner et al., 2004, p. 76)

By June 1977 Reagan was referring to the ‘‘Welfare Queen of Chicago’’ as an example not only of welfare malfeasance but also as an icon of how enterprising citizens could employ the equal outcomes logic of rights to game a bloated and inefficient government. Accordingly, the welfare queen illustrated just how out of control big government had become. Incapable of functions as basic as keeping track of where and how tax-payer money was


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spent, government was an easy mark for those who were intent on committing fraud (Reagan, 1977e, in Skinner et al., 2004, p. 177). Reagan’s obsession with welfare cheats is instructive. For one, as I have suggested, these characters were emblematic of the problems that Reagan associated with big government. Animated by a new vision of rights, which held that Americans were due equal outcomes rather than equal opportunities to succeed, big government had become a ‘‘monster.’’ Bloated, centralized, inefficient, and shockingly incompetent, big government facilitated individual dependence and, so, failed in its stated purpose – to ‘‘solve all the problems of human misery through government and government planning.’’ At the same time, big government’s misguided benevolence presented opportunities for enterprising social pariahs to enrich themselves at the expense of tax-paying, average citizens. These opportunities for fraud led to Reagan’s discursive establishment of the welfare cheat as a national villain. Welfare cheats were inversions of the average citizens that Reagan championed: they were corrupt, greedy, and lazy – they would not ‘‘get off their seat and get to work.’’ Unlike the average citizens of Reagan’s lore – those ordinary American heroes who had ‘‘been too long neglected’’ but whose values of hard work, family, self-sufficiency, and generosity ‘‘sustain our national life’’ – welfare cheats employed rights to undermine the nation. Indeed, welfare cheats employed the ‘‘questionable premise that welfare is a right’’ to destroy ‘‘the spiritual and moral values that created our societyythe ideals of individual and family responsibility’’ (Reagan, 1981a, in Reagan, 1989, p. 62–63; see also Reagan, 1971b, in Houck & Kiewe, 1993, p. 107; and Reagan, 1975b, in Skinner et al., 2001, p. 390). The welfare cheat’s misuse of rights thus endangered the American nation; it was the marker by which their national villainy was established. And in the discursive establishment of these others, average citizens (who correctly employed rights) emerged as paragons of national virtue. Reagan’s broadsides against undeserving welfare recipients, and the incompetent Leviathan that enabled their duplicities, provide a great deal of the ideological ground upon which welfare policy in America is understood and practiced. Indeed, Reagan’s legal discourse, which depicted welfare frauds as leeches on the moral foundations of American democracy, informs conservative critique, American public opinion, and contemporary trends in American welfare policy itself. Just as his legal discourse portrayed campus protestors, leftist professors, and violent criminals as national pariahs who serially abused rights, so too are Reagan’s depictions of welfare recipients iconic. Subversives all, they are the stock villains in the legally infused morality play that constitutes contemporary American politics.

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3.7. Ending Welfare As We Know It By the early 1970s the welfare rights movement, having been dealt a series of high-profile defeats, was on life support. Although it scored some important victories, including the U.S. Supreme Court’s decision in 1970’s Goldberg v. Kelly (which held that due process required that welfare recipients receive a fair hearing before losing benefits), ‘‘political changes in the early 1970’s drained the life out of welfare rights efforts at the local and national levels’’ (Kornbluh, 2007, p. 177). Prominent among these political changes was the resurgence of the Republican Party’s electoral fortunes, and especially the GOP’s reliance upon the ‘‘social issues’’ that propel the American culture wars. Because these social issues (including those of race, crime, education, abortion, civil rights, and welfare) were typically contested on the terrain of morality rather than economic self-interest, they were fertile ground for the GOP’s long-term goal of breaking apart the Democratic Party’s New Deal coalition by turning working and middle-class whites into a loyal constituency for Republican candidates (see, generally, Phillips, 1970; Perlstein, 2001, pp. 482–487). Conservative critics, as well as prominent conservative public officials such as Richard Nixon, thus explicitly sought to cultivate the resentment felt by this constituency toward those historically marginalized populations whose activism in the 1960s propelled what Epp calls the ‘‘rights revolution’’ (Epp, 1998; Dudas, 2008, pp. 137–153). Critics and public officials alike found an alluring template in the early political success of Ronald Reagan (Perlstein, 2008, pp. 74–75). Indeed, Reagan had employed the distinctive legal discourse that is my focus here to essay on such social issues. His disquisitions helped him, first, to become the darling of American conservatives and, second, to pummel two-term Governor Pat Brown by more than a million votes in California’s 1966 gubernatorial contest.28 Welfare policy was at the fore of the social issues that Reagan so successfully exploited. Accordingly, conservative critics added to their appeals a commitment to welfare reform. The Heritage Foundation, a conservative think tank founded in 1973, took up the cause of welfare reform with particular zeal. Convinced that ‘‘welfare has become a way of life for many Americans,’’ the organization consistently railed against the ‘‘welfare behemoth’’ (Rector & Butterfield, 1987, p. 1; Rector, 1987, p. 15). Welfare reform quickly became, in fact, one of the signature issues associated with The Heritage Foundation; it flooded the offices of legislators and journalists with position papers, speeches, and other paraphernalia aimed at convincing them of the dangers of the American welfare Leviathan


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and the immediate need for its reform (see also, generally, Francis, 1979; Hobbs, 1982; Butler, 1986; Rector, 1995). John Ashcroft, U.S. Attorney General under George W. Bush, was convinced. Although there were only 4 million American families receiving benefits from the Aid for Families with Dependent Children (AFDC) program (approximately .2 percent of the American population in 199529), Ashcroft insisted that the program’s various inadequacies were responsible for illegitimacy, crime, and the general unraveling of the nation’s ‘‘survival valuesyresponsibility, opportunity, community, mobility, and family.’’ The American welfare system thus created suffering that was ‘‘unrivaled and unprecedented in American history.’’ Compromising America’s greatness, welfare Stifle[s] [our] spirit, lull[s] [us] into dependencyyOur danger today is to not recognize the threatyIf that occursyour pathologies will metastasize, and an America that today stands on the brink of chaos will tomorrow be thrown into the abyss of mayhem.

Explicitly invoking Ronald Reagan’s conception of the American nation, Ashcroft opined that welfare reform was needed to ‘‘retake our city on the Hillyto call our nation to greatness’’ (Ashcroft, 1995). By the mid-1990s, welfare reform, and its Reagan-esque formulation, had thus become commonplace in conservative critique. In 1994 prominent conservative intellectual Charles Murray claimed that the whole of American social policy was deeply misguided. Running far a field from its original, noble goals of lifting Americans out of poverty, American social policy instead created incentives for poor people to eschew hard work, traditional two-parent households, stable employment, and even law-abiding behavior (Murray, 1994, pp. 145–177). Murray recoiled at the resulting social breakdown: ‘‘the most troubling aspect of social policy toward the pooryis not how much it costs, but what it has bought’’ (Murray, 1994, p. 9). Indeed, by the mid-1990s the majority of Americans, as indicated by public opinion polling, had come around to the conservative way of seeing welfare as an affront to the American nation. Convinced, as was Reagan, that the American welfare Leviathan perversely rewarded the venal and lazy, ‘‘the majority of Americans think most welfare recipients are taking advantage of the system and would rather sit home and collect benefits than work’’ (Gilens, 1999, p. 5). Gilens’ comprehensive study of American public opinion on welfare policy, for example, reveals that ‘‘two out of every three Americans say that most people who receive welfare benefits are taking advantage of the system, and only one in three believes that most welfare recipients are genuinely in need of help’’ (Gilens, 1999, p. 61). A ‘‘quite

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remarkable’’ finding, ‘‘it would be hard to exaggerate the level of cynicism toward welfare recipients held by the American public. This perception of welfare recipients’ dishonesty and freeloading is at the core of Americans’ conviction that welfare spending should be cut’’ (Gilens, 1999, pp. 63–64). Indeed, Americans now widely agree with Reagan’s (1966) conviction that the nation should not subsidize that ‘‘segment of society which prefers making welfare a way of life, freeloading at the expense of conscientious citizens’’ (Bart, 1966). I have argued that Reagan’s broadsides against the American welfare system, and those who cheated it, relied upon a legal discourse that emphasized how unworthy welfare recipients improperly employed rights. This discourse also laid the ideological foundations of contemporary American welfare policy. First, it popularized the figure of the welfare cheat for conservative intellectuals, who have consistently employed it as one of the stock national villains against whom the American culture wars are fought. Second, Reagan’s legal discourse eventually naturalized the welfare cheat as a national villain, stripping the figure of its partisan roots and making it, instead, an elemental part of American public opinion regarding welfare policy. Reagan’s legal rendering of the dangers of the American welfare Leviathan has thus provided essential backdrop for the severe cuts in American welfare policy that came to fruition during the 1990s. By the middle part of the decade both the federal food stamps and Legal Services programs were significantly de-funded (Katz, 2000, pp. 298–314). The height of welfare reform, however, occurred with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act, which was signed into law by President Clinton in August of 1996. The act reformed the welfare system by assigning responsibility for administration to individual states in the form of block grants and prescribed tough penalties for recipients who did not meet new work and eligibility requirements. According to Clinton, the act reformed a ‘‘fundamentally broken’’ welfare system that ‘‘too often hurt those who it [was] supposed to help,’’ which allowed welfare to become ‘‘a way of life’’ (Clinton, 1996a). In Reagan’s terms, the act repudiated the conviction that welfare was a ‘‘perfectly acceptable career’’; it dealt a killing blow to the American welfare Leviathan and the faulty notion that welfare was a right. The Personal Responsibility and Work Opportunity Reconciliation Act thus ‘‘end[ed],’’ according to Clinton, ‘‘welfare as we know it’’ and, in so doing, marked a ‘‘real step forward for our country [and] our values’’ (Clinton, 1996b; Clinton, 1996a). Welfare reform, concluded former Speaker of the House of Representatives Newt Gingrich, amounted to a ‘‘legitimization of the notion that maybe big

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government is not the answer’’ (Gingrich, 2001). Indeed, bi-partisan welfare reform enacted Reagan’s understanding that ‘‘government is not the solution to our problems; government is the problem’’ (Reagan, 1981a, in Reagan, 1989a, p. 60). All told, Reagan’s attacks on social deviants (campus protestors, leftist professors, violent criminals, and welfare cheats) and his simultaneous celebration of average, but neglected, citizens (college students, the law abiding, and the self-sufficient) were premised on a political vision that was expressed through legal discourse. And that legal discourse, which emphasized the perversion of individual rights by a faulty logic of equality, accomplished cultural and political work. Its depiction of an American nation under assault from subversive forces at once provided the intellectual template for conservative movement politics and, because it naturalized a series of partisan positions, the ideological cornerstones of a great deal of American public policy. Constitutive at the level of both form and content, Reagan’s legal discourse has indelibly shaped the contours of American politics.

4. CONCLUSION – WHAT WOULD REAGAN DO? Reagan’s image precedes us as we ride forward or backward in time, anticipating our reactions, reflecting us back to ourselves. [He] is part of the process that forge[s] our selfawarenessy[he] has a self-reflecting omnipresence in the cultural processing of Americans. [Reagan] is inescapable. –Garry Wills

In anticipation of the 2008 presidential election, The Heritage Foundation introduced a new feature at its web site. A portrait of Ronald Reagan was splashed across the site’s home page, with the organization touting Reagan’s ‘‘Timeless Principles,’’ ‘‘Fearless Leadership,’’ and ‘‘Visionary Solutions.’’ Reflecting a widespread anxiety on the Right that the era of Republican dominance may be in its waning days, Heritage claimed that ‘‘now more than ever, America needs to get back to the conservative principles President Ronald Reagan believed in.’’ To facilitate the return trip, Heritage invited readers to confront the most pressing issues facing America by channeling the spirit of Reagan himself. Riffing off the popular evangelical query of ‘‘What Would Jesus Do?’’ Heritage asked instead: ‘‘What Would Reagan Do?’’ (The Heritage Foundation, 2008). In so turning to the figure of Reagan, and the political vision that he espoused, Heritage was only more explicit than many

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of its conservative colleagues, who have fretted about the GOP’s need to find a ‘‘new Reagan’’ (Shipman, 2007; Chavez, 2008; Wallison, 2008). This treatment of Reagan as an electoral palliative illustrates just how indebted conservatism is to Reagan’s depictions of the American nation. The terms according to which conservatives participate in the culture wars that suffuse American politics – the stock villains against whom the average citizens of conservative lore are measured – are drawn directly from Reagan’s renderings of the vices and virtues of American life. As Garry Wills observes, ‘‘modern conservatism in America isyReagonism’’ (Wills, 2000, p. ix). And, as I have argued here, much of the form and content of Reagan’s political vision was specifically legal in character. Naturalizing the partisan considerations served by his political vision, Reagan’s legal discourse united his core beliefs in equal opportunity and individual rights under the rubric of ordered freedom. Indeed, the distinctively American commitment to providing the ‘‘ultimate in individual freedom consistent with law and order’’ was premised upon a prior recognition that ‘‘every citizen [has a] right to share in an abundant society proportionate to his ability’’ (Reagan, 1968e, p. 13). Not simply affirmative and celebratory of individual rights, I have argued also that Reagan’s legal discourse expressed a fundamental ambivalence about rights. Reagan despaired at the alleged misuse of rights by social miscreants – misuse itself linked to the rise in prominence of a faulty equal outcomes logic of rights – and the ways that such parasitical invocations of rights assaulted the ordered acts of freedom that marked America’s virtuous average citizens. The conservative political vision also voices this ambivalent legal consciousness. Indeed, prominent conservatives share Reagan’s emphasis on the specifically legal foundations, and vulnerabilities, of American democracy. Intellectual luminaries – such as William F. Buckley, Jr., Mary Ann Glendon, and Thomas Sowell – fret over the ‘‘mutation’’ of individual rights away from their supposedly original association with equal opportunity and ordered freedom and toward the ‘‘concept of equal results’’ (Buckley, 1994, p. 79; Sowell [1984] 1988, p. 310; see also, Buckley, 1985, 1988a, 1988b, 1996, 1998, 2003; Glendon, 1991, pp. 3–15). Meanwhile, important movement activists such as Ward Connerly and Linda Chavez have translated their concerns over the association of individual rights with equal outcomes into high-profile campaigns against affirmative action, liberal immigration reform, and labor rights (Connerly, 2001; Chavez & Gray, 2004; Chavez, 2006). The legal discourse that expressed Reagan’s political vision, and the ambivalent view of individual rights that it spawned,


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thus saturates American conservative politics (see also Haltom & McCann, 2004; McCann & Dudas, 2006; Dudas, 2008). Yet we have also seen how that vision leaps beyond the boundaries of the American conservative movement. In fact, Reagan’s discursive renderings of stock national villains have become the ideological cornerstones of a great deal of contemporary American politics. The entrenchment of these villains in American political practice, moreover, speaks to the constitutive power of legal discourse. For, as I have argued, Reagan’s appeals to America’s unseemly elements – to the misdeeds of campus protestors, leftist professors, violent criminals, and welfare cheats, for example – were typically cast in legal, rights-based language. That language, and the national villains that it depicts, is at the center of American politics; it encourages the reactionary and punitive dimensions of so much of contemporary American public policy. Indeed, the legal discourse used by prominent public officials – like the legal discourses of social movement activists, bureaucratic officials, and ordinary people that are examined in much law and society scholarship – has, in part, constituted American politics. This language, in fact, registers in both political and cultural domains. It is simultaneously a resource for the pursuit of particularistic interests and a general expression that clothes those particularistic interests in natural, universal appeals. At once strategic and ideological, the legal discourses of public officials are imprinted on the political life of the American nation. And the imprints left by Ronald Reagan’s legal depictions, I have argued, are second to none. Accordingly, to understand the conservative political vision, the reactionary tone of contemporary American politics, and the elemental role that legal discourse plays in the constitution of each, we are compelled to ask a deceptively simple question. Like the legally discursive renderings of its namesake, it has traveled a steady path on its way to the center of American politics. Modeled after a formulation made popular by America’s conservative evangelicals, the question directs our attention to another towering, now intangible figure. Indeed, we ask ourselves: What Would Reagan Do?

NOTES 1. I follow established definitions of legal consciousness, which regard it as the employment of legal discourses, symbols, and practices as conceptual resources for making sense of social reality. ‘‘Legal consciousness,’’ according to McCann, ‘‘refers to the ongoing, dynamic process of constructing one’s understanding of, and relationship to, the social world through use of legal conventions and discourses’’ (McCann, 1994, p. 7; see also Sarat, 1990; Greenhouse, Yngvesson, & Engel, 1994,

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generally; Ewick & Silbey, 1998, pp. 43–53; Engel & Munger, 2003, pp. 11–13; Lovell, 2006). 2. Revealing studies of the use of law by conservative social movements include those written by Krishnan and Den Dulk (2001), Goldberg-Hiller (2002), Hatcher (2002), Den Dulk (2006), and Dudas (2008). Hacker (2005), Hatcher (2005), Teles (2008), and Southworth (2008) offer excellent analyses of how conservative lawyers have employed litigation to institutionalize movement goals. However, none of these studies specifically analyzes the employment of law, and especially legal discourse, by conservative public officials. 3. Scholars and other observers have long been fascinated by Ronald Reagan’s depiction of the American nation. In fact, that depiction has been the subject of multiple, varying waves of scholarship. The first wave was contemporaneous with his presidency and mostly critical and dismissive (Dallek, 1984; Rogin, 1987; Wills, 1987; Johnson, 1991).The second wave, largely made up of reverential accounts by Reagan’s admirers, appeared beginning in the 1990s (Noonan, 1990, 2002; Muir, 1992; D’Souza, 1997; Deaver, 2001; Wallison, 2002; Wirthlin & Hall, 2004).The third wave, appearing mostly in the new millennium and informed by engagement with recently released collections of Reagan’s hand-written speeches, radio addresses, and letters, has pursued a measured tone that is at once sympathetic and critical (Morris, 1999; Brownlee & Graham, 2003; Troy, 2005; Diggins, 2007; Tygiel, 2006; Critchlow, 2007; Evans, 2007; Wilentz, 2008; see also Cannon, 1982, 1991, 2003, 2004). 4. A corollary finding is unsurprising: Americans are increasingly appreciative of Reagan. By 2001, 66% of Americans looked back to Reagan’s presidency with approval; by 2006 Reagan’s approval rate was 71% (Sussman, 2001; Gallup, 2006). At the same time, Reagan’s reputation among scholars has risen considerably. He was, for example, ranked as the 6th greatest president in a 2005 Wall Street Journal poll of 130 scholars; he was the highest-ranked president of the second half of the 20th century. Overall, he ranked behind only Washington, Lincoln, Franklin Roosevelt, Jefferson, and Theodore Roosevelt (Wall Street Journal, 2005). 5. Reagan confirms that the speeches are his intellectual products in multiple places, including in Reagan (1978a), in Skinner et al. (2003, pp. 288–289); Reagan (1979a), in Skinner et al. (2003, pp. 289–290); Reagan (1992), in Skinner et al. (2003, pp. 288, 826–827). 6. Sigleman does find significant differences in the tone of Reagan’s addresses as president, noting that his presidential pronouncements were both more active and more positive than the hand-written addresses that he delivered before his election (see also Houck & Kiewe, 1993).In particular, Reagan toned down the more apocalyptic of his earlier depictions, which viewed America as well-advanced on the road to communism (see, for example, Reagan, 1964a, in Reagan, 1989). 7. The culmination of these refinements – 1964s televised ‘‘The Speech’’ on behalf of Barry Goldwater – was a political sensation, airing multiple times by public demand and bringing in $8 million for Goldwater’s presidential campaign (Reagan, 1964a, in Reagan, 1989a, p. 24; Morris, 1999, pp. 329–331; Perlstein, 2001, pp. 499– 504; Schoenwald, 2001, pp. 195–198).‘‘The Speech,’’ according to Broder and Hess, was the ‘‘most successful national political debut since William Jennings Bryan electrified the 1896 Democratic convention’’ (quoted in Tygiel, 2006, p. 100).


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8. Haltom and McCann (2004), for example, demonstrate that the considerable successes of the American tort reform movement over the previous 20 years have relied upon widespread acceptance of the empirically dubious notion that America is beset by greedy litigants and frivolous lawsuits. Accepting as common knowledge that the nation is under assault from a supposed ‘‘litigation explosion,’’ many state legislatures have limited the ability of people who are victimized by dangerous products and other negligent behavior to seek redress in court (Haltom & McCann, 2004, generally). 9. On the legal discourse of ordinary citizens, see Sarat (1990); Greenhouse et al. (1994); Ewick and Silbey (1998); Gilliom (2001); Engel and Munger (2003); Nielsen (2004); Lovell (2006).The voluminous literature on law and social movements is summarized ably by McCann (2006), and includes works by McCann (1994); Brigham (1996); Silverstein (1996); Goldberg-Hiller (2002); McCann and Dudas (2006). 10. Notably exceptional is the ‘‘cause lawyering’’ scholarship, much of which has been produced under the editorship of Sarat and Scheingold (Sarat & Scheingold, 1998, 2005, 2006; Scheingold & Sarat, 2001, 2004). Even this scholarship, though, tends to neglect the legal discourse (including rights talk) of elected officials. 11. See, for example, Reagan (1961, pp. 679–680); Reagan (1962), in Houck and Kiewe (1993, pp. 27–35); Reagan (1964a), in Reagan (1989a, pp. 22–36); Reagan (1968c, pp. 119–123); Reagan (1977a), in Skinner et al. (2001, p. 341); Reagan (1977b), in Skinner et al. (2004, pp. 109–110); Reagan (1977c), in Skinner et al. (2004, p. 111); Reagan (1977d), in Skinner et al. (2001, pp. 291–292); and Reagan (1978b), in Skinner et al. (2004, p. 273). 12. Of course, Reagan was not the originator of the term ‘‘forgotten American.’’ William Graham Sumner, for example, championed the ‘‘forgotten man’’ in the late 19th century (Sumner [1883] 1995). Moreover, the logic that the appellation expresses – there is a virtuous majority population whose interests are abused by a tiny, but powerful minority – is a lasting feature of American populism (Kazin, 1998). Reagan’s own use of the term and the concept was likely indebted to Barry Goldwater and Richard Nixon, each of whom employed it consistently in their attempts to break apart the New Deal governing coalition (Nixon, 1968; Goldwater, 1970; Wills, 1970, pp. 310–312; McGirr, 2001; Mason, 2003). 13. Reagan’s take on welfare policy, a policy that he consistently attacked and that I discuss later, illustrated his conviction that big government hurt its intended beneficiaries more than it helped them. 14. Cannon (2003) summarizes the radical, sometimes violent protests that rattled California campuses during Reagan’s governorship. Diggins (2007) focuses on the conflicts at San Francisco State University (Cannon, 2003, pp. 271–296; Diggins, 2007, pp. 141–148). 15. As Reagan patiently instructed a student audience in 1971, ‘‘true freedom is the freedom of self-discipline – the freedom to choose within acceptable standards.Take that framework away and you lose freedom’’ (Reagan, 1971a, in Skinner et al., 2001, p. 449). 16. Reagan frequently noted that many campus radicals were not actually students, but were instead amateur agitators from elsewhere (see, e.g., Reagan, 1979c, in Skinner et al., 2004, pp. 449–450; Reagan, 1990, p. 180).

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17. For example, PC-wrought changes in admissions policies (especially the abandoning of individual merit-based selection in favor of group-based affirmative action), in what is taught in the classroom (either the dismissal or the politicization of classic Western texts), and on campus life broadly (the introduction, e.g., of hate speech codes that are said to violate free speech principles) are said to be ominous harbingers of coming social transformations. 18. It would thus seem that national security itself demands the vigilant oversight of the liberal professoriate that trades in PC. The watch is, in fact, kept by conservative luminaries: organizations such as Campus Watch and the David Horowitz Freedom Center; publications such as The National Review (see, e.g., Washburn, 1988; National Review, 1990; Bowman, 1992); and individual authors such as Cheney (1988, 1990, 1995), D’Souza (1991), John Leo (1990), George Will (1991), and, most prominently, David Horowitz, whose 2006 identification of the ‘‘101 Most Dangerous Academics in America’’ was intended, like all anti-PC arguments, as an act of counter-subversion (Horowitz, 2006). Newfield (2008) explores Horowitz’s intellectual vision and the organizational prowess that it has enabled (Newfield, 2008, pp. 277–291). 19. ‘‘Mass criminal violations and mob violence are increasingly endangering our communities. Some euphemistically call this ‘civil disobedience’. It is nothing more nor less than deliberate and premeditated violation of the law by groups of people. [It is] protest that takes the form of criminal violations, leads to violence, mob rule, and ultimately to anarchy, where no man has either freedom or rights’’ (Reagan, 1968g, p. 28). 20. There is some evidence that supports Reagan’s claim that violent crime decreased during the Great Depression. Indeed, homicide rates significantly declined during the course of the Depression (National Center for Health Statistics, 2008). However, Reagan’s interpretation of this fact – that there is no connection between violent crime rates and socio-economic circumstances – is not necessarily borne out by the available data. Indeed, the passage of the 21st Amendment in 1933 – which repealed the 18th Amendment’s prohibition on alcohol production and sales and, so, destroyed the often-violent underground liquor market – was a likely source of decline. Meanwhile, by 1944 the nation, spurred by the economic mobilization efforts associated with the conduct of World War II, had reached total employment, reducing poverty rates. It is likely that the combination of these factors – the end of prohibition, on one hand, and lessening of the poverty rate, on the other – accounted for the significant decrease in America’s homicide rate during the Great Depression. 21. ‘‘I do not hold with the theory that says society is to blame when a man commits a robbery or a murder and therefore we must be understanding and as sympathetic for the criminal as we are for the victimy[Such] talk is partly responsible for our increase in crime. As punishment becomes more difficult to mete out, those who would be deterred by its threat feel freer to resort to crime and to acts of violence’’ (Reagan, 1968g, pp. 25, 27). 22. See, for example, Reagan’s graphic telling of the murder of a 10-year-old girl and the exoneration of her killer (Reagan, 1968g, pp. 27–28). 23. On Goldwater’s halting transmission of the law and order meme during the 1964 presidential campaign, see Perlstein (2001, pp. 296–298, 482–487, 494– 496).George Wallace’s full-throated employment of it during the 1968 presidential


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campaign is analyzed by Carter (1995, pp. 346–351). Nixon’s well-known use of the law and order theme is analyzed in many places, including in Wills (1970, pp. 258– 275); Scheingold (1984, pp. 77–79); Simon (2007, pp. 260–261); and Perlstein (2008, pp. 202–203, 363–365). 24. Indeed, by the early 1990s, manifold legislative enactments, summarized as a ‘‘victim’s bill of rights,’’ accomplished such reforms as victim restitution, victim compensation, victim notification of the status of prosecutions, and, perhaps most controversially, the admittance of victim impact statements during the penalty phase of criminal trials (Roland, 1989, generally; Schulhofer, 1995, pp. 825–826). 25. First-wave Reagan scholar Michael Rogin argues that Reagan’s obsession with dependence ran deep. Tracing Reagan’s revulsion of dependence to his father’s alcoholism, and the constant dislocation that it caused the Reagan family, Rogin notes that the 40th President’s entire career (including his movie roles) was animated by the longing for independence. Interestingly, though, Reagan’s longing was ambivalent. He shared the traditional dream of American masculinity, which was to be both cared for by women and free of feminine influence – an equivocation that, among other things, implied a patriarchal view of human relations (Rogin, 1987, pp. 17–37; see also Dallek, 1984). Rogin’s analysis sheds light on the despair with which Reagan greeted dependence to welfare, as well as his life-long dedication to freeing those who were supposedly in thrall to the federal government. As Reagan asked in 1971, ‘‘is there any dignity in being dependent?’’ (Reagan, 1971b, in Houck & Kiewe, 1993, p. 105). In 1976 he answered his own question: ‘‘I’ve never met a welfare recipient who thought down deep that he was a free citizen’’ (Reagan & Hobbs, 1976, p. 98). 26. Here Reagan was invoking a central motif of Barry Goldwater’s political vision: the image of the ‘‘whole man.’’ It was a reference to how modern conservatism supposedly acknowledged both the economic and spiritual aspects of individual life. Liberalism, in contrast, was allegedly consumed by the issue of economic inequality, focusing only on the material well-being of Americans (Goldwater, 1960, pp. 10–13). 27. Reagan also frequently decried the inefficiency of the American welfare system, especially with respect to the hardships that the system visited upon the already-strained budgets of local and state government. See, for example, Reagan (1971b), in Houck and Kiewe (1993, p. 102); and Reagan (1978k), in Skinner et al. (2004, pp. 368–369). 28. Even Richard Nixon, acknowledged puppet master of resentments (Wills, 1970, pp. 52–71), learned from Reagan’s deft cultivations. Impressed by Reagan’s phrasing of contentious, partisan positions in more neutral, legal language, Nixon was, by 1966, watching Reagan ‘‘very, very carefully’’ (Perlstein, 2008, p. 94). 29. For American population trends, see United States Census Bureau (2000).

ACKNOWLEDGMENTS I am grateful to those who have shared with me their comments on multiple earlier versions of this chapter, including John Skrentny, Ken Kersch,

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Michael McCann, Carroll Seron, Melody Herr, several anonymous reviewers, and, especially, Mary Dudas. I am also grateful to the raft of scholars who have engaged me in discussion about the content and influence of Ronald Reagan’s political vision, including: Charles Epp, John Brigham, Paul Passavant, Helena Silverstein, George Lovell, Ernie Zirakzadeh, Susan Burgess, Stephen Dyson, Garry Clifford, Betty Hanson, Howard Reiter, Robert Venator, Reneé Cramer, Laura Hatcher, and Christine Harrington. Austin Sarat has been very helpful in preparing this article for publication in Studies in Law, Politics, and Society, and I thank him.

REFERENCES Adler, J., & Starr, M. (1990). Taking offense. Newsweek, December 24, p. 48. Ashcroft, J. (1995). Which will survive: The welfare state or the Republican revolution? Available at http://www.heritage.org/Research/Welfare/HL539.cfm. Retrieved on August 17, 2008. Bart, P. (1966). Reagan enters gubernatorial race in California. New York Times, January 5, p. 21. Bernstein, R. (1990). The rising hegemony of the politically correct. New York Times, October 28, p. E1. Bowman, J. (1992). Ghost writer. National Review, August 3, p. 42. Brigham, J. (1988). Right, rage, and remedy: Forms of law in political discourse. Studies in American Political Development, 2, p. 303. Brigham, J. (1996). The constitution of interests: Beyond the politics of rights. New York: New York University Press. Brownlee, W. E., & Graham, H. D. (Eds). (2003). The Reagan presidency: Pragmatic conservatism and its legacies. Lawrence, Kansas: University Press of Kansas. Buckley, W. F., Jr. (1985). End reverse discrimination. National Review, September 20, p. 17. Buckley, W. F., Jr. (1988a). Everything goes under civil rights. National Review, May 13, p. 69. Buckley, W. F., Jr. (1988b). Doubletalk on civil rights. National Review, April 29, p. 57. Buckley, W. F., Jr. (1994). Starting again in California. National Review, February 7, p. 78. Buckley, W. F., Jr. (1996). For dole: The educational challenge. National Review, September 30, p. 74. Buckley, W. F., Jr. (1998). Answer me, yes or no. National Review, January 26, p. 58. Buckley, W. F., Jr. (2003). Civil rights pandemonium. National Review, January 27, p. 57. Butler, S. M. (1986). Reagan’s bold welfare initiative offers hope for the poor. Available at http://www.heritage.org/Research/Welfare/EM141.cfm. Retrieved on August 17, 2008. Cannon, L. (1982). Reagan. New York: G.P. Putnam Publishing. Cannon, L. (1991). President Reagan: The role of a lifetime. New York: Simon & Schuster. Cannon, L. (2003). Governor Reagan: His rise to power. New York: Public Affairs. Cannon, L. (2004). Remembering Reagan. Available at http://www.washingtonpost.com/ wp-dyn/articles/A23140-2004Jun7.html. Retrieved on April 12, 2008. Carter, D. T. (1995). The politics of rage: George Wallace, the origins of the new conservatism, and the transformation of American politics. New York: Simon & Schuster.


201

Cassell, P. G. (2004). In defense of the death penalty. In: H. A. Bedau & P. G. Cassell (Eds), Debating the death penalty: Should American have capital punishment? The experts on both sides make their best case (pp. 183–217). New York: Oxford University Press. Chavez, L. (2006). The realities of immigration. Commentary, July-August, p. 34. Chavez, L. (2008). The Ghost of Ronald Reagan. Townhall.com, February 1. Available at http://townhall.com/columnists/LindaChavez/2008/02/01/the_ghost_of_ronald_Reagan. Retrieved on April 14, 2008. Chavez, L., & Gray, D. (2004). Betrayal: How union bosses shake down their members and corrupt American politics. New York: Crown Forum. Cheney, L. V. (1988). Humanities in America: A report to the President, the congress, and the American people. Washington, DC: National Endowment for the Humanities. Cheney, L. V. (1990). Tyrannical machines: Report on educational practices gone wrong and our best hopes for setting them right. Washington, DC: National Endowment for the Humanities. Cheney, L. V. (1995). Telling the truth: Why our culture and our country have stopped making sense – and what we can do about it. New York: Simon & Schuster. Clinton, W. J. (1996a). Statement on signing the personal responsibility and work opportunity act of 1996. Washington, DC, August 22. Clinton, W. J. (1996b). Remarks on Signing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and an Exchange with Reporters. Washington, DC, August 22. Comaroff, J. L., & Comaroff, J. (1997). Of revelation and revolution, volume 2: The dialectics of modernity on a South African frontier. Chicago, IL: University of Chicago Press. Connerly, W. (2001). Warriors of freedom. Available at http://www.acri.org/hillsdale_ commencement.html. Retrieved on April 12, 2008. Critchlow, D. T. (2007). The conservative ascendancy: How the GOP right made political history. Cambridge, MA: Harvard University Press. Dallek, R. (1984). Ronald Reagan: The politics of symbolism. Cambridge, MA: Harvard University Press. De Groot, G. J. (1996). Ronald Reagan and student unrest in California, 1966–1970. Pacific Historical Review, 65, p. 107. Deaver, M. K. (2001). A different drummer: My thirty years with Ronald Reagan. New York: HarperCollins Publishers, Inc. den Dulk, K. R. (2006). In legal culture, but not of it: The role of cause lawyers in evangelical legal mobilization. In: A. Sarat & S. A. Scheingold (Eds), Cause lawyers and social movements (pp. 197–219). Stanford, CA: Stanford University Press. Diggins, J. P. (2007). Ronald Reagan: Fate, freedom, and the making of history. New York: W.W. Norton & Company. Dudas, J. R. (2005). In the name of equal rights: ‘‘special’’ rights and the politics of resentment in post-civil rights America. Law and Society Review, 39, p. 723. Dudas, J. R. (2008). The cultivation of resentment: Treaty rights and the new right. Stanford, CA: Stanford University Press. D’Souza, D. (1991). Illiberal education: The politics of race and sex on campus. New York: Free Press. D’Souza, D. (1997). Ronald Reagan: How an ordinary man became an extraordinary leader. New York: Free Press. Edelman, M. (1964). The symbolic uses of politics. Chicago, IL: University of Chicago Press.

202

JEFFREY R. DUDAS

Engel, D. M., & Munger, F. W. (2003). Rights of inclusion: Law and identity in the life stories of Americans with disabilities. Chicago, IL: University of Chicago Press. Epp, C. R. (1998). The rights revolution: Lawyers, activists, and supreme courts in comparative perspective. Chicago, IL: University of Chicago Press. Erickson, P. D. (1985). Reagan speaks: The making of an American myth. New York: New York University Press. Evans, T. W. (2007). The education of Ronald Reagan: The general electric years and the untold story of his conversion to conservatism. New York: Columbia University Press. Ewick, P., & Silbey, S. (1998). The common place of law: Stories from everyday life. Chicago, IL: University of Chicago Press. Francis, S. T. (1979). Welfare reform proposals. Available at http://www.heritage.org/ Research/Welfare/IB48.cfm. Retrieved on August 17, 2008. Gallup (2006). Poll. June 1–4. Gilens, M. (1999). Why Americans hate welfare: Race, media, and the politics of antipoverty policy. Chicago, IL: University of Chicago Press. Gilliam, F. D., Jr. (1999). The ‘‘Welfare Queen’’ experiment: How viewers react to images of African-American mothers on welfare. Nieman Reports, 53(Summer). Gilliom, J. (2001). Overseers of the poor: Surveillance, resistance, and the limits of privacy. Chicago, IL: University of Chicago Press. Gingrich, N. (2001). Commanding heights. Available at http://www-tc.pbs.org/wgbh/commandingheights/shared/pdf/int_newtgingrich.pdf. Retrieved on April 25, 2008. Glendon, M. A. (1991). Rights talk: The impoverishment of political discourse. New York: Free Press. Goldberg-Hiller, J. (2002). The limits to union: Same-sex marriage and the politics of civil rights. Ann Arbor: University of Michigan Press. Goldberg-Hiller, J., & Milner, N. (2003). Rights as excess: Understanding the politics of special rights. Law and Social Inquiry, 29, 1075. Goldwater, B. M. (1960). The conscience of a conservative. Shepherdsville, KY: Victor Publishing Company. Goldwater, B. M. (1970). The conscience of a majority. Englewood Cliffs, NJ: Prentice Hall. Greenhouse, C. J., Yngvesson, B., & Engel, D. M. (1994). Law and community in three American towns. Ithaca, NY: Cornell University Press. Hacker, H. J. (2005). The culture of conservative Christian litigation. New York: Rowman & Littlefield Publishers, Inc. Hallinan, J. T. (2001). Going up the river: Travels in a prison nation. New York: Random House. Haltom, W., & McCann, M. W. (2004). Distorting the law: Politics, mass media, and the litigation crisis. Chicago, IL: University of Chicago Press. Haney-Lo´pez, I. (2006). White by law: The legal construction of race (10th Anniversary Edition). New York: New York University Press. Hanson, V. D. (2004). Reagan and the American psyche. In: National Review (Eds), Tear down this wall: The Reagan revolution – A national review history (pp. 187–189). New York & London: Continuum. Harrington, C., & Yngvesson, B. (1990). Interpretive sociolegal research. Law and Social Inquiry, 15, p. 135. Hatcher, L. J. (2002). Green metaphors: Language, land, and takings debates. Current Legal Issues, 5, p. 445.


203

Hatcher, L. J. (2005). Economic libertarians, property and institutions: Linking activism, ideas, and identities among property rights advocates. In: A. Sarat & S. A. Scheingold (Eds), From fate to responsibility: Cause lawyers and the worlds they make (pp. 112–146). Stanford, CA: Stanford University Press. Heclo, H. (2003). Ronald Reagan and the American public philosophy. In: W. E. Brownlee & H. D. Graham (Eds), The Reagan presidency: Pragmatic conservatism and its legacies (pp. 17–39). Lawrence, KS: University Press of Kansas. Heritage Foundation. (2008). What Would Reagan Do? Heritage Foundation. Available at http://wwrdheritage.org. Retrieved on August 17, 2008. Hobbs, J. R. (1982). Welfare need and welfare spending. Available at http://www.heritage.org/ Research/Welfare/bg219.cfm. Retrieved on August 17, 2008. Horowitz, D. (2006). The Professors: The 101 most dangerous academics in America. Washington, DC: Regnery Publishing. Horowitz, D. (2007). The end of the university as we know it. FrontPageMagazine.com, November 16, 2007. Houck, D. W., & Kiewe, A. (Eds). (1993). Actor, ideologue, politician: The public speeches of Ronald Reagan. Westport, CT: Greenwood Press. Hughes, R. (1992). The fraying of America. Time, February 3, p. 44. Johnson, H. (1991). Sleepwalking through history: America in the Reagan years. New York and London: W.W. Norton and Company. Katz, M. B. (2000). The price of citizenship: Redefining the American welfare state. New York: Metropolitan Books. Kazin, M. (1998). The populist persuasion: An American history. Ithaca, NY: Cornell University Press. Kornbluh, F. (2007). The battle for welfare rights: Politics and poverty in modern America. Philadelphia, PA: University of Pennsylvania Press. Krishnan, J. K., & den Dulk, K. R. (2001). So help me god: A comparative study of religious interest group litigation. Georgia Journal of International and Comparative Law, 30, p. 233. Leo, J. (1990). The academy’s new ayatollahs. U.S. News & World Report, December 10, p. 22. Lovell, G. I. (2006). Justice excused: The deployment of legal claims in everyday political encounters. Law and Society Review, 40, p. 283. Lowry, R. (2004). Introduction. In: National Review (Eds), Tear down this wall: The Reagan revolution – A national review history (p. vii). New York & London: Continuum. Mason, R. (2003). Richard Nixon and the quest for a new majority. Chapel Hill, NC: University of North Carolina Press. McCann, M. W. (1994). Rights at work: Pay equity reform and the politics of legal mobilization. Chicago, IL: University of Chicago Press. McCann, M. W. (2006). Law and social movements. London, UK, and Burlington, VT: Ashgate Publishing. McCann, M. W., & Dudas, J. R. (2006). Retrenchmentyand resurgence? Mapping the changing context of movement lawyering in the United States. In: A. Sarat & S. A. Scheingold (Eds), Cause lawyers and social movements (pp. 37–59). Stanford, CA: Stanford University Press. McGirr, L. (2001). Suburban warriors: The origins of the new American right. Princeton, NJ: Princeton University Press. Micklethwait, J., & Wooldridge, A. (2004). The right nation: Conservative power in America. New York: Penguin.

204

JEFFREY R. DUDAS

Morris, E. (1999). Dutch: A memoir of Ronald Reagan. New York: Random House. Muir, W. K., Jr. (1992). The bully pulpit: The Presidential leadership of Ronald Reagan. San Francisco, CA: Institute for Contemporary Studies Press. Murray, C. (1994). Losing ground: American social policy, 1950–1980 (10th Anniversary Edition). New York: Basic Books. Murray, S. (2008). Obama’s Reagan comparison sparks debate. Available at http:// blog.washingtonpost.com/thetrail/2008/01/17obamas_reagan_comparison_spark_1.html. Retrieved on April 25, 2008. National Center for Health Statistics (2008). Vital statistics. Available at http://www.ojp. usdoj.gov/bjs/glance/tables/hmrttab.htm. Retrieved on April 14, 2008. National Review. (1990). Academic watch. National Review, November 19, p. 18. National Review. (2007). The editorial. National Review Online. December 13. Available at http://article.nationalreview.com/?q ¼ YTQ4NDI3MWM3YWUxMTI1YWEwZDdm MWJkYTZkYjc2OTE ¼ . Retrieved on August 17, 2008. Newfield, C. (2008). Unmaking the public university: The forty-year assault on the middle class. Cambridge, MA: Harvard University Press. Nielsen, L. B. (2004). License to harass: Law, hierarchy, and offensive public speech. Princeton, NJ: Princeton University Press. Nixon, R. (1968). Presidential Nomination Acceptance Speech. Miami, Florida. August 8. Noonan, P. (1990). What I saw at the revolution: A political life in the Reagan era. New York: Random Publishing. Noonan, P. (2002). When character was king: A story of Ronald Reagan. New York: Penguin. Passavant, P. A. (2002). No escape: Freedom of speech and the paradox of rights. New York: New York University Press. Patterson, J. T. (2003). Afterword: The legacies of the Reagan years. In: W. E. Brownlee & H. D. Graham (Eds), The Reagan presidency: Pragmatic conservatism and its legacies (pp. 355–375). Lawrence, KS: University of Kansas Press. Perlstein, R. (2001). Before the storm: Barry Goldwater and the unmaking of the American consensus. New York: Hill and Wang. Perlstein, R. (2008). Nixonland: The rise of a President and the fracturing of America. New York: Scribner. Phillips, K. P. (1970). The emerging republican majority. New York: Anchor. Rauch, J. (1992). Kindly inquisitors: The new attacks on free thought. Chicago, IL: University of Chicago Press. Reagan, R. (1961). Encroaching control: Keep Government poor and remain free. Vital Speeches of the Day, September 1, p. 677. Reagan, R. (1962). Television address. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 27–35). Westport, CT: Greenwood Press. Reagan, R. (1964a). Televised nationwide address on behalf of senator Barry Goldwater. In: R. Reagan (Ed.), Speaking my mind (pp. 22–36). New York: Simon & Schuster. Reagan, R. (1964b). The republican party and the conservative movement: On losing. National Review, December 1. Reagan, R. (1964c). A time for choosing (‘‘the speech’’). In: T. W. Evans (Ed.), The education of Ronald Reagan: The general electric years and the untold story of his conversion to conservatism (pp. 238–249). New York: Columbia University Press. Reagan, R. (1965). A moment of truth: our rendezvous with destiny. Vital Speeches of the Day, September 1, p. 681.


205

Reagan, R. (1966). Another opinion: Reagan states his case. New York Times, October 30, p. E11. Reagan, R. (1968a). Women’s national press club. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 56–64). Westport, CT: Greenwood Press. Reagan, R. (1968b). Have we been out of touch with reality? In: R. Reagan (Ed.), The creative society: Some comments on problems facing America (pp. 11–14). New York: The DevinAdair Company. Reagan, R. (1968c). What is academic freedom? In: R. Reagan (Ed.), The creative society: Some comments on problems facing America (pp. 119–123). New York: The Devin-Adair Company. Reagan, R. (1968d). In: The creative society: Some comments on problems facing America (pp. 135–138). New York: The Devin-Adair Company. Reagan, R. (1968e). In: The creative society: Some comments on problems facing America (pp. 16–20). New York: The Devin-Adair Company. Reagan, R. (1968f ). In: The creative society: Some comments on problems facing America (pp. 125–127). New York: The Devin-Adair Company. Reagan, R. (1968g). In: The creative society: Some comments on problems facing America (pp. 21–31). New York: The Devin-Adair Company. Reagan, R. (1969a). Letter to the honorable Jack Williams. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (p. 190). New York: Free Press. Reagan, R. (1969b). In: Speaking my mind (pp. 37–45). New York: Simon & Schuster. Reagan, R. (1969c). The ‘‘People’s Park’’. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 73–82). Westport, CT: Greenwood Press. Reagan, R. (1970a). YMCA model legislature. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 83–86). Westport, CT: Greenwood Press. Reagan, R. (1970b). California young republicans convention. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 86–92). Westport, CT: Greenwood Press. Reagan, R. (1971a). Letter to the editor of the Pegasus. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 446–449). New York: Free Press. Reagan, R. (1971b). American Association of university women State convention. In: D. W. Houck & A. Kiewe (Eds), Actor, ideologue, politician: The public speeches of Ronald Reagan (pp. 101–107). Westport, CT: Greenwood Press. Reagan, R. (1972). The executive, legislative, and judicial: A lawful society. Vital Speeches of the Day, November 15, p. 66. Reagan, R. (1975a). Law and order. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 37–38). New York: Free Press. Reagan, R. (1975b). Welfare program #2. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 389–390). New York: Free Press. Reagan, R. (1975c). Welfare program #3. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 24–25). New York: Free Press.

206

JEFFREY R. DUDAS

Reagan, R. (1976a). America’s strength. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 12–13). New York: Simon & Schuster. Reagan, R. (1976b). Crime. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 400–401). New York: Simon & Schuster. Reagan, R. (1976c). Crime I. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 401–402). New York: Simon & Schuster. Reagan, R. (1976d). Welfare. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 390–391). New York: Simon & Schuster. Reagan, R. (1976e). Stump speech insert. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 457–466). New York: Simon & Schuster. Reagan, R. (1976f ). Welfare. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 75–76). New York: Free Press. Reagan, R. (1977a). Property rights. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 340–341). New York: Simon & Schuster. Reagan, R. (1977b). OSHA. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 109–110). New York: Free Press. Reagan, R. (1977c). More about OSHA. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 110–111). New York: Free Press. Reagan, R. (1977d). Man’s castle. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 291–292). New York: Simon & Schuster. Reagan, R. (1977e). Capital punishment. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 142–143). New York: Free Press. Reagan, R. (1977f ). The execution. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 239–240). New York: Free Press. Reagan, R. (1977g). Miranda. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 146–148). New York: Free Press. Reagan, R. (1977h). Food stamps. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 393–394). New York: Simon & Schuster. Reagan, R. (1978a). Letter to William Loeb. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (pp. 288–289). New York: Free Press. Reagan, R. (1978b). Treaties. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of ronald Reagan’s vision: Selected writings (pp. 273–274). New York: Free Press.


207

Reagan, R. (1978c). The average man. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory: The shaping of Ronald Reagan’s vision: Selected writings (pp. 355–356). New York: Free Press. Reagan, R. (1978d). Missing person. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan, in his own hand: The writings of Ronald Reagan that reveal his revolutionary vision for America (pp. 411–412). New York: Simon and Schuster. Reagan, R. (1978e). Bakke. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 274–275). New York: Free Press. Reagan, R. (1978f ). Crime. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 254–255). New York: Free Press. Reagan, R. (1978g). National security. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 304–305). New York: Free Press. Reagan, R. (1978h). Crime. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 369–370). New York: Free Press. Reagan, R. (1978i). Crime. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 281–283). New York: Free Press. Reagan, R. (1978j). Welfare reform. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory: The shaping of Ronald Reagan’s vision: Selected writings (pp. 260–261). New York: Free Press. Reagan, R. (1978k). Welfare. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory: The shaping of Ronald Reagan’s vision: Selected writings (pp. 368–369). New York: Free Press. Reagan, R. (1979a). Letter to John McClaughry. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (pp. 289–290). New York: Free Press. Reagan, R. (1979b). People’s park I. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 448–449). New York: Free Press. Reagan, R. (1979c). People’s park II. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 449–450). New York: Free Press. Reagan, R. (1979d). Crime. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings (pp. 451–452). New York: Free Press. Reagan, R. (1980). Letter to William Rasberry. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (p. 588). New York: Free Press. Reagan, R. (1981a). In: Speaking my mind (pp. 59–66). New York: Simon & Schuster. Reagan, R. (1981b). Proclamation 4831 – Victim Right’s Week, 1981. Washington, DC, April 8. Reagan, R. (1982a). Letter to Mrs. Gail E. Foyt. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (p. 622). New York: Free Press. Reagan, R. (1982b). Letter to Mr. Kevin Weyl. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (pp. 309–310). New York: Free Press. Reagan, R. (1989). Speaking my mind. New York: Simon & Schuster.

208

JEFFREY R. DUDAS

Reagan, R. (1990). An American life. New York: Simon & Schuster. Reagan, R. (1992). Letter to Lorraine and Elwood H. Wagner. In: K. K. Skinner, A. Anderson & M. Anderson (Eds), Reagan: A life in letters (pp. 826–827). New York: Free Press. Reagan, R., & Hobbs, C. D. (1976). Ronald Reagan’s call to action. New York: Warner Books, Incorporated. Rector, R. (1987). Welfare reform that is anti-work, anti-family, anti-poor. Available at http:// www.heritage.org/Research/Welfare/bg603.cfm. Retrieved on August 17, 2008. Rector, R. (1995). Why congress must reform welfare. Available at http://www.heritage.org/ Research/Welfare/BG1063.cfm. Retrieved on August 17, 2008. Rector, R., & Butterfield, P. T. (1987). Reforming welfare: The promises and limits of workfare. Available at http://www.heritage.org/Research/Welfare/bg585.cfm. Retrieved on August 17, 2008. Rogin, M. P. (1987). Ronald Reagan, the movie: And other episodes in political demonology. Berkeley, CA: University of California Press. Roland, D. L. (1989). Progress in the victim reform movement: No longer the ‘‘Forgotten Victim’’. Pepperdine Law Review, 17, p. 35. Sarat, A. (1990). ‘‘yThe law is all over’’: Power, resistance, and the legal consciousness of the welfare poor. Yale Journal of Law & the Humanities, 2, p. 343. Sarat, A. (2001). When the state kills: Capital punishment and the American condition. Princeton, NJ: Princeton University Press. Sarat, A., & Scheingold, S. A. (Eds). (1998). Cause lawyering: Political commitments and professional responsibilities. New York: Oxford University Press. Sarat, A., & Scheingold, S. A. (Eds). (2005). The worlds cause lawyers make: Structure and agency in legal practice. Palo Alto, CA: Stanford University Press. Sarat, A., & Scheingold, S. A. (Eds). (2006). Cause lawyers and social movements. Palo Alto, CA: Stanford University Press. Schacter, J. S. (1994). The gay civil rights debate in the states: Decoding the discourse of equivalents. Harvard Civil Rights-Liberties Law Review, 29, p. 283. Schacter, J. S. (1997). Skepticism, culture, and the gay rights debate in a post-civil-rights era. Harvard Law Review, 110, p. 684. Scheingold, S. A. (1974). The politics of rights: lawyers, public policy, and political change. New Haven, CT: Yale University Press. Scheingold, S. A. (1984). The politics of law and order: Street crime and public policy. New York & London: Longman. Scheingold, S. A., & Sarat, A. (2001). Cause lawyering and the State in a global era. New York: Oxford University Press. Scheingold, S. A., & Sarat, A. (2004). Something to believe in: Politics, professionalism, and cause lawyering. Palo Alto, CA: Stanford University Press. Schlesinger, A., Jr. (1991). The disuniting of America: Reflections on a multi-cultural society. New York: Whittle Direct. Schoenwald, J. (2001). A time for choosing: The rise of modern American conservatism. New York: Oxford University Press. Schulhofer, S. J. (1995). The trouble with trials; the trouble with us. Yale Law Journal, 105, p. 825. Shipman, T. (2007). Mike Huckabee dubbed Ronald Reagan’s heir. Telegraph. December 17. Available at http://www.telegraph.co.uk/news/worldnews/1572754/Mike-Huckabeedubbed-Ronald-Reagans-heir.html. Retrieved on August 18, 2008.


209

Sigelman, L. (2002). Two Reagans? Genre imperatives, ghost writers, and presidential personality profiling. Political Psychology, 23, p. 839. Silverstein, H. (1996). Unleashing rights: Law, meaning, and the animal rights movement. Ann Arbor, MI: University of Michigan Press. Simon, J. (2007). Governing through crime: How the war on crime transformed American democracy and created a culture of fear. New York: Oxford University Press. Skinner, K. K., Anderson, A., & Anderson, M. (Eds). (2001). Reagan, in his own hand: The writings that reveal his revolutionary vision for America. New York: Simon & Schuster. Skinner, K. K., Anderson, A., & Anderson, M. (Eds). (2003). Reagan: A life in letters. New York: Free Press. Skinner, K. K., Anderson, A., & Anderson, M. (Eds). (2004). Reagan’s path to victory. The shaping of Ronald Reagan’s vision: Selected writings. New York: Free Press. Southworth, A. (2008). Lawyers of the right: Professionalizing the conservative coalition. Chicago, IL: University of Chicago Press. Sowell, T. ([1984]1988). The civil rights vision: From equal opportunity to ‘‘affirmative action’’. In: W. F. Buckley, Jr. & C. R. Kessler, (Eds), Keeping the tablets: Modern American conservative thought (pp. 308–326). New York: Harper & Row Publishers. Stuckey, M. E. (2004). Defining Americans: The presidency and national identity. Lawrence, KS: University Press of Kansas. Stychin, C. F. (1998). A nation by rights: National cultures, sexual identity politics, and the discourse of rights. Philadelphia, PA: Temple University Press. Sumner, W. G. ([1883]1995). What social classes owe to each other. New York: Harper & Brothers. Sundby, S. E. (2005). A life and death decision: A jury weighs the death penalty. New York: Palgrave Macmillan. Sussman, D. (2001). Improving with age: Reagan approval grows better in retrospect. ABC News, August 6. Teles, S. M. (2008). The rise of the conservative legal movement: The battle for control of the law. Princeton, NJ: Princeton University Press. Troy, G. (2005). Morning in America: How Ronald Reagan invented the 1980’s. Princeton, NJ: Princeton University Press. Tulis, J. K. (1987). The rhetorical presidency. Princeton, NJ: Princeton University Press. Tygiel, J. (2006). Ronald Reagan and the triumph of American conservatism (2nd ed.). New York: Pearson Longman. United States Census Bureau (2000). Historical National Population Estimates: July 1, 1900 to July 1, 1999. Population Estimates Program, Population Division, United States Census Bureau, June 28. Wall Street Journal. (2005). Presidential leadership: The rankings. Wall Street Journal, September 12, p. A 17. Wallison, P. J. (2002). Ronald Reagan: The power of conviction and the success of his presidency. New York: Westview Press. Wallison, P. J. (2008). Reagan and McCain. The American Spectator Online. January 25, 2008. Washburn, W. E. (1988). Liberalism versus free speech. National Review, September 30, p. 39. Wicker, T. (1966). Reagan shuns image of Goldwater in coast race. New York Times, June 1, p. 38. Wilentz, S. (2008). The age of Reagan: A history, 1974–2008. New York: Harper. Will, G. F. (1991). Literary politics. Newsweek, April 22, p. 72.

210

JEFFREY R. DUDAS

Wills, G. (1970). Nixon agonistes: The crisis of the self-made man. New York: Houghton Mifflin Co. Wills, G. (1987). Reagan’s America: Innocents at home. Garden City, NY: Doubleday. Wills, G. (2000). Reagan’s America: Innocents at home, with new preface. New York: Penguin. Wirthlin, D., & Hall, W. C. (2004). The greatest communicator: What Ronald Reagan taught me about politics, leadership, and life. New York: Wiley.

Cases Cited Booth v. Maryland, 482 U.S. 496 (1987). Goldberg v. Kelly, 397 U.S. 254 (1970). Miranda v. Arizona, 384 U.S. 436 (1966). Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

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Studies in Law, Politics, and Society, Volume 45 (Studies in Law, Politics and Society)

Studies in Law, Politics and Society, Volume 43: SPECIAL ISSUE: LAW AND LITERATURE RECONSIDERED (Studies in Law, Politics & Society) (Studies in Law, Politics, and Society)