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12 - Administrative “States” of Judicial Policy on Gender-Motivated Violence

from Part III - Judicial Policymaking and the Modern State

Published online by Cambridge University Press:  18 April 2019

By
Christine B. Harrington
Edited by
Rosann Greenspan ,
Hadar Aviram  and
Jonathan Simon
Rosann Greenspan
Affiliation:
University of California, Berkeley
Hadar Aviram
Affiliation:
University of California, Hastings College of the Law
Jonathan Simon
Affiliation:
University of California, Berkeley
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Summary

In what sense is the rise of the modern administrative state a catalyst for judicial policymaking? Judicial Policy Making and the Modern State (1998), Malcolm Feeley and Edward Rubin’s treatise on judicial policymaking examines this dynamic in the context of prison reform litigation carried out by US federal courts in the mid to late twentieth century. Before 1965, federal judges had not reviewed the authority of prison wardens, who under the common law oversaw the implementation of internal prison practices. This changed after a judge in the US District Court for the Eastern District of Arkansas declared conditions of overcrowding at Cummins Frame State Prison “cruel and unusual punishment” in violation of the Eighth Amendment of the US Constitution.

Type
Chapter
Information
The Legal Process and the Promise of Justice
Studies Inspired by the Work of Malcolm Feeley
 , pp. 230 - 258
Publisher: Cambridge University Press
Print publication year: 2019

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References

Bibliography

Associated Press. 1992. “Rehnquist Carps at Congress.” Newsday, January 1, 1992. ProQuest doc. ID: 278465596.Google Scholar
Axelrad, Danielle R., Kelley, Derek W., Judith Feinberg, Jennifer E. Sherven, . 1999. “A Survey of Federal Cases Involving the Constitutionality of the Violence Against Women Act.” Public Interest Law Journal 9: 133–59.Google Scholar
Balogh, Brian. 1991. “Reorganizing the Organizational Synthesis: Federal-Professional Relations in Modern America.” Studies in American Political Development 5: 119–72.CrossRefGoogle Scholar
Barnes, Jeb. 2007. “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making.” Annual Review of Political Science 10: 25–43.Google Scholar
Barrow, Deborah J., Zuk, Gary, and Gryski, Gerard S.. 1996. The Federal Judiciary and Institutional Change. Ann Arbor: University of Michigan Press.CrossRefGoogle Scholar
Berry, Ellen, Nelson, Robert L., and Nielson, Laura Beth. 2017. Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality. Chicago: University of Chicago Press.Google Scholar
Biden, Senator Joseph R. 2000. “Essay: The Civil Rights Remedy of the Violence Against Women Act: A Defense.” Harvard Journal on Legislation 37: 1–45.Google Scholar
Byrd, Richeé A. 2002. “Specific Provisions of the Violence Against Women Act.” Georgetown Journal of Gender and the Law 3: 595–608.Google Scholar
Bumiller, Kristin. 2008. In an Abusive State: How Neoliberalism Appropriated the Feminist Movement Against Sexual Violence. Duke University Press.Google Scholar
Carpenter, Daniel P. 2000. “State Building through Reputation Building: Coalitions of Esteem and Program Innovation in the National Postal System, 1883–1913.” Studies in American Political Development 14 (2000): 121–55.Google Scholar
Chutkow, Dawn W. 2014. “The Chief Justice as Executive: Judicial Conference Committee Appointments.” Journal of Law and Courts 2: 301–25.CrossRefGoogle Scholar
Clayton, Cornell W. and Pickerill, Mitchell. 2006. “The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence.” The Georgetown Law Journal 95: 1385–425.Google Scholar
Congressional Quarterly Almanac 102nd Congress, 1st Session. 1991.Google Scholar
Corrigan, Rose. 2013. Up Against a Wall: Rape Reform and the Failure of Success. New York: New York University Press.Google Scholar
Crenshaw, Kimberlé. 1991. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review 43: 1241–99.Google Scholar
Crowe, Justin. 2012. Building the Judiciary: Law, Courts, and the Politics of Institutional Development. Princeton: Princeton University Press.Google Scholar
Decker, Jefferson. 2016. The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government. New York: Oxford University Press.CrossRefGoogle Scholar
Diver, Colin. 1981. “Policymaking Paradigms in Administrative Law.” Harvard Law Review 95: 393–434.CrossRefGoogle Scholar
Easterling, Michelle W. 1996. “For Better or Worse: The Federalization of Domestic Violence.” West Virginia Law Review 98: 933–53.Google Scholar
Edelman, Murray. 1974. 6th edn. The Symbolic Uses of Politics. Urbana: University of Illinois Press.Google Scholar
Edelman, Lauren B. 1992. “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law.” American Journal of Sociology 97: 1531–76.Google Scholar
Edelman, Lauren B., Smyth, Aaron C., and Rahim, Asad. 2016. “Legal Discrimination: Empirical Sociolegal and Critical Race Perspectives on Antidiscrimination Law.” Annual Review of Law and Social Science 12: 395–15.Google Scholar
Epp, Charles R. 2009. Making Rights REAL: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago: University Chicago Press.CrossRefGoogle Scholar
Farhang, Sean. 2012. “Legislative-Executive Conflict and Private Statutory Litigation in the United States: Evidence from Labor, Civil Rights, and Environmental Law.” Law & Social Inquiry 37: 657–85.Google Scholar
Farhang, Sean. 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton: Princeton University Press.Google Scholar
Feeley, Malcolm M. 1979. The Process is the Punishment: Handling Cases in a Lower Court. New York: Russell Sage.Google Scholar
Feeley, Malcolm M. and Rubin, Edward L.. 1998. Judicial Policy Making and the Modern State: How the Courts Reformed American’s Prisons. New York: Cambridge University Press.Google Scholar
Feeley, Malcolm M. and Rubin, Edward. 1992. “Prison Litigation and Bureaucratic Development.” Law & Social Inquiry 17: 125–45.CrossRefGoogle Scholar
Feeley, Malcolm M. and Swearingen, Van. 2004. “The Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, Impacts and Implications.” Pace Law Review 24: 433–75.Google Scholar
Federal Judicial Center. 1987. Education and Research Agency US Courts. Accessed January 16, 2018. www.fjc.gov/history/home.nsf/page/admin_01_01_02.htmlGoogle Scholar
Fine, David M. 1998. “The Note: Violence Against Women Act of 1994: The Proper Role in Policing Violence Against Women Act of 1994.” Cornell Law Review 84: 252–303.Google Scholar
Fish, Peter G. 1973. The Politics of Federal Judicial Administration. Princeton: Princeton University Press.Google Scholar
Freedman, Estelle B. 2013. Redefining RAPE: Sexual Violence in the Era of Suffrage and Segregation. Cambridge: Harvard University Press.Google Scholar
Frymer, Paul. 2008. “Law and American Political Development.” Law & Social Inquiry 33: 779–803.CrossRefGoogle Scholar
Gash, Alison L. 2015. Below the Radar: How Silence Can Save Civil Rights. New York: Oxford University Press.Google Scholar
Gilbert, Jess. 2016. Planning Democracy: Agrarian Intellectuals and the Intended New Deal. New Haven: Yale University Press.Google Scholar
Goldfarb, Sally F. 2004. “Public Rights for ‘Private’ Wrongs: Sexual Harassment and the Violence Against Women Act.” In Directions in Sexual Harassment Law, edited by MacKinnon, Catherine A. and Siegel, Reva B., 516–34. New Haven: Yale University Press.Google Scholar
Goldfarb, Sally F 2002. “The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism.” Fordham Law Review 71: 57–146.Google Scholar
Goldfarb, Sally F 2010. “Viewing the Violence Against Women Act Through the Lenses of Feminist Legal Theory.” Women’s Rights Law Reporter 31: 198–205.Google Scholar
Goldfarb, Sally F 1996. “The Violence Against Women Act of 1994: A Promise Waiting to Be Fulfilled.” Journal of Law and Policy 4: 391–97.Google Scholar
Goldscheid, Julie. 2005. “Civil Rights Remedy of the 1994 Violence Against Women Act: Struck Down but Not Ruled Out, The.” Family Law Quarterly 39: 157–80.Google Scholar
Goldscheid, Julie 1999. “Gender-Motivated Violence: Developing a Meaningful Paradigm for Civil Rights Enforcement.” Harvard Women’s Law Journal 22: 123–58.Google Scholar
Goldscheid, Julie 2000. “The Second Circuit Addresses Gender-Based Violence: A Review of Violence Against Women Act Cases.” Brooklyn Law Review 66: 457–71.Google Scholar
Goldscheid, Julie 2000. “United States v. Morrison and the Civil Rights Remedy of the Violence Against Women Act: A Civil Rights Law Struck Down in the Name of Federalism.” Cornell Law Review 86: 109–39.Google Scholar
Linda, Greenhouse. 1992. “Ease Load on Courts, Rehnquist Urges.” New York Times, January 1, 1992. ProQuest doc. ID: 428369420.Google Scholar
Grisinger, Joanna L. 2012. The Unwieldy American State: Administrative Politics Since the New Deal. New York: Cambridge University Press.Google Scholar
Grossmann, Matt. 2014. Artists of the Possible: Governing Networks and American Policy Changes Since 1945. New York: Oxford University Press.CrossRefGoogle Scholar
Hallock, W.H. 1993. “The Violence Against Women Act: Civil Rights for Sexual Assault Victims.” Indiana Law Journal 68: 577–617.Google Scholar
Harrington, Christine B. 1994. “Outlining a Theory of Legal Practice.” In Lawyers in a Postmodern World: Translation and Transgression, edited by Cain, Maureen and Harrington, Christine B.: 49–69. New York: New York University Press.Google Scholar
Harrington, Christine B. and Yngvesson, Barbara. 1990. “Interpretive Sociolegal Research.” Law & Social Inquiry 15: 135–48.CrossRefGoogle Scholar
Hollis-Brusky, Amanda. 2014. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. New York: Oxford University Press.Google Scholar
Hollis-Brusky, Amanda 2013. “It’s the Network: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court.” Studies in Law, Politics and Society 61: 137–78.CrossRefGoogle Scholar
Hollis-Brusky, Amanda 2011. “Support Structures and Constitutional Change: Teles, Southworth, and the Conservative Legal Movement.” Law & Social Inquiry 36: 516–36.Google Scholar
Judicial Conference of the US Courts “Resolution on Violence Against Women” and Letter of Judge Stanley Marcus, Chairman, Ad-Hoc Committee on Gender-Based Violence. March 16, 1993. H.R. Hearing, reprinted in “Crimes of Violence Motivated by Gender: Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary.” Committee on the Judiciary, House of Representatives, 103rd Cong., 1st Sess. 51, 70–73.Google Scholar
Judicial Conference of the US Courts. Report of the Proceedings of the Judicial Conference, September 21, 1987. Washington, DC: Administrative Office of the US Courts. www.uscourts.gov/about-federal-courts/reports-proceedings-1980sGoogle Scholar
Judicial Conference of the US Courts Report of the Proceedings of the Judicial Conference, September 12, 1990. Washington, DC: Administrative Office of the US Courts.Google Scholar
Judicial Conference of the US Courts Report of the Proceedings of the Judicial Conference, September 23–24, 1991. Washington, DC: Administrative Office of the US Courts.Google Scholar
Judicial Conference of the US Courts Report of the Proceedings of the Judicial Conference, March 16, 1992. Washington, DC: Administrative Office of the US Courts.Google Scholar
Judicial Conference of the US Courts Report of the Proceedings of the Judicial Conference, March 16, 1993. Washington, DC: Administrative Office of the US Courts.Google Scholar
Keck, Thomas. 2009. “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights.” Law & Society Review 43: 151–86.CrossRefGoogle Scholar
Keck, Thomas 2004. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press.Google Scholar
Kolko, Gabriel. 1976. “The Foundations of the Political Economy 1875–1920.” In Main Currents in Modern American History. New York: Harper & Row.Google Scholar
Kotkin, Minna J. 1995–1996. “The Violence Against Women Act Project: Teaching a New Generation of Public Interest Lawyers.” Journal of Law and Policy 4: 435–61.Google Scholar
MacKinnon, Catharine A. 2000. “Disputing Male Sovereignty: On United States v. Morrison”. Harvard Law Review 114: 135–77.Google Scholar
MacKinnon, Catharine A 1979. Sexual Harassment of Working Women. New Haven: Yale University Press.Google Scholar
Maloney, Kerrie E. 1996. “Gender-Motivated Violence and the Commerce Clause: The Civil Rights Provision of the Violence Against Women Act After Lopez.” Columbia Law Review 96: 1876–939.Google Scholar
McTaggart, Kelli C. 1998. “The Violence Against Women Act: Recognizing a Federal Civil Right to Be Free from Violence.” Georgetown Law Journal 86: 1123–51.Google Scholar
Minow, Martha, Ryan, Michael, and Sarat, Austin, eds. 1995. Narrative, Violence and the Law: The Essays of Robert Cover. Ann Arbor: University of Michigan Press.Google Scholar
Conference of Chief Justices. 2009. The History of the Conference of Chief Justices: 60th Anniversary. Williamsburg, VA: National Center for State Courts.Google Scholar
Nourse, Victoria F. 1996. “Where Violence, Relationship, and Equality Meet: The Violence Against Women Act’s Civil Rights Remedy.” Wisconsin Women’s Law Journal 11: 1–36.Google Scholar
Olsen, F. E. 1983. “The Family and the Market: A Study of Ideology and Legal Reform.” Harvard Law Review 96: 1497–578.CrossRefGoogle Scholar
Orren, Karen and Skowronek, Stephen. 2004. The Search for American Political Development. New York: Cambridge University Press.Google Scholar
Paris, Michael. 2010. Framing Equal Opportunity: Law and the Politics of School Finance Reform. Stanford: Stanford University Press.CrossRefGoogle Scholar
Post, Robert C. 2003. “The Supreme Court 2002 Term Forward: Fashioning the Legal Constitution: Culture, Courts, and Law.” Harvard Law Review 117: 4–112.Google Scholar
Post, Robert C. 2006. “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era.” William and Mary Law Review 48: 1–183.Google Scholar
Provine, Doris Marie. 1988. “Judicial Government.” Law and Contemporary Problems 51: 83–109.Google Scholar
Rehnquist, William. 1992. “Chief Justice’s 1991 Year-End Report on the Federal Judiciary.” The Third Branch: Newsletter of the Federal Courts 24: 1–12.Google Scholar
Resnik, Judith. 2010. “Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality.” Georgetown Journal of Gender and Law 11: 557–69.Google Scholar
Resnik, Judith 2000. “The Programmatic Judiciary: Lobby, Judging, and Invalidating the Violence Against Women Act.” Southern California Law Review 74: 269–93.Google Scholar
Rubin, Edward L. and Feeley, Malcolm M.. 1993. “Federalism: Some Notes on a National Neurosis.” UCLA Law Review 41: 903–52.Google Scholar
Scheingold, Stuart A. 2004. The Politics of Rights: Lawyers, Public Policy, and Political Change. Ann Arbor: University of Michigan Press.CrossRefGoogle Scholar
Schmidt, Caroline S. 2015. “What Killed the Violence Against Women Act’s Civil Rights Remedy Before the Supreme Court Did.” Virginia Law Review 101: 501–57.Google Scholar
Schneider, Elizabeth M. 2000. Battered Women & Feminist Lawmaking. New Haven: Yale University Press.Google Scholar
Schneider, Elizabeth M 1996. “Introduction: The Promise of the Violence Against Women Act of 1994.” Journal of Law and Policy 4: 371–76.Google Scholar
Schreiber, Ronnee. 2008. Righting Feminism: Conservative Women & American Politics. New York: Oxford University Press.Google Scholar
Schumer, Representative Charles. “Opening Statement of U.S. House of Representatives, Subcommittee on Crime and Criminal Justice, Committee on the Judiciary.” 102nd Congress, Second Session, Serial No. 42, February 6, 1992: 1–6.Google Scholar
Scott, James C. 1998. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press.Google Scholar
Siegel, Reva B. 1996. “‘The Rule of Law’: Wife Beating as Prerogative and Privacy.” Yale Law Journal 105: 2117–208.Google Scholar
Staszak, Sarah. 2010. “Institutions, Rulemaking, and the Politics of Judicial Retrenchment.” Studies in American Political Development 24: 168–89.CrossRefGoogle Scholar
Staszak, Sarah 2015. No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. New York: Oxford University Press.Google Scholar
Strebeigh, Fred. 2009. EQUAL: Women Reshape American Law. W.W. Norton & Company.Google Scholar
Teles, Steven M. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton: Princeton University Press.CrossRefGoogle Scholar
Thelen, Kathleen. 2000. “Timing and Temporality in the Analysis of Institutional Evolution and Change.” Studies in American Political Development 14: 101–08.Google Scholar
Tomlins, Christopher. 2012. “What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon’s ‘Critical Legal Histories.’” Law & Social Inquiry 37: 155–66.Google Scholar
Tushnet, Mark. 2008. “The Rights Revolution in the Twentieth Century.” In The Cambridge History of Law in America, vol. 3, edited by Grossberg, Michael and Tomlins, Christopher: 377–402. New York: Cambridge University Press.Google Scholar
Twiss, Benjamin R. 1962. Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court. New York: Russell & Russell Inc.Google Scholar
Washington Post. 1992. “Expanding Federal Court Role Opposed; Rehnquist Says Congress Is Endangering Quality and Credibility.” January 1, 1992. ProQuest doc. ID: 307488732.Google Scholar
Williams, Patricia. 1987. “Spirit-Murdering the Messenger: The Discourse of Finger Pointing as the Law’s Response to Racism.” University of Miami Law Review 42: 127–57.Google Scholar
Weiss, Carolyn Peri. 1997. “Title III of the Violence Against Women Act: Constitutionally Safe and Sound.” Washington University Law Quarterly 75: 723–49.Google Scholar
Wiebe, Robert H. 1967. The Search for Order, 1877–1920. New York: Hill and Wang.Google Scholar

Cases

Brzonkala v. Virginia Polytechnic Inst. & State University (1997) 132 F.3d 949, USCA 4th Circuit, vote 2–1.

Brzonkala v. Virginia Polytechnic Inst. & State University (1999) 169 F.3d 820, USCA 4th Circuit, en banc vote 7–4.

Civil Rights Cases (1883) 109 US 3; vote 8–1.

Griffin v. Breckenridge (1971) 403 US 88; vote 9–0.

U.S. v. Lopez (1995) 514 US 549; vote 5–4.

U.S. v. Morrison (2000) 529 US 598; vote 5–4.

Amici Curiae Brief of Law Professors in Support of Petitioners, U.S. v. Morrison, 120 S. Ct. 1740 (2000) (Nos. 99–5, 99–29).

U.S. Reply Brief, U.S. v. Morrison (1999).

Legislation

Violence Against Women Act (VAWA), 135 42 U.S.C. § 13981 (1994); (P.L. 103–322)

Violent Crime Control and Law Enforcement Act of 1994, PuB. L. No. 103–322, 108 Stat. 1796. 42 U.S.C.A. § 13981(b)-(c) (1995).

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