Studies in Law, Politics and Society: Volume 38

Gad Barzilai

By highlighting the real world experiences of cause lawyers who work on behalf of HIV-infected prisoners (e.g., “activist prisoner lawyering”), this article reports on the often-difficult negotiations over roles (litigator v. activist) that such actors face. The article investigates through the stories of activist prison lawyers, in the words of one such respondent, how “different approaches need to be taken in different settings.” For activist prison lawyers, when a client's life literally hangs in the balance litigation may be the only option. In other instances, using a case to bring public awareness to broader movement objectives may be chosen as a proper course of action. The article elucidates how such negotiations often entail the dilemma of balancing broader goals of the prisoner rights movement with the immediate, indeed sometimes life and death, circumstances facing the individuals and communities they represent. The article concludes with a call for future work on cause lawyers and social movements in other contexts to problematize law as a static, dichotomous variable that either does or does not bring desired institutional or societal change. Viewing law as a dichotomous variable masks the politically significant effects litigation may have for influencing both institutional arrangements and social consciousness over time. Furthermore, the dichotomous conception of law as a catalyst/not a catalyst for social change also glosses over the importance of the meso-level of analysis. By paying attention to the demands of a specific legal context, the immediate circumstances of a specific situation, and the way the former and the latter may be inextricably linked, future studies can make important and nuanced contributions to our understanding of the complex relationship between law, and social change.

This paper argues that the nation's immigration laws are being misused to craft a system of preventive administrative detention of immigrant men, predominantly of Middle Eastern background. These detentions give rise to imprisonment without charge for weeks and months, denial of access to lawyers, physical and psychological abuse and ultimately deportations without a fair initial hearing or the exhaustion of available appellate recourse. I argue that this expanded use of civil immigration detention is designed to weaken constitutional due process protections, bringing into the U.S. detention tactics adopted abroad under the rubric of the war on terror. This paper also highlights similarities between the evolving administrative detention system in the United States and longer-standing practices in Israel.

Through an analysis of texts and interviews with sanctuary providers from sanctuary incidents in Canada, this paper first details how sanctuary is made possible by pastoral and non-state sovereign powers. It then argues at least three stories of law are instantiated in sanctuary discourse. Law is at times arbitrary and unpredictable. In other instances, a ‘higher’ law authorizes sanctuary. Law is also a broader game in which lawyers are relied upon and sanctuary becomes a tactic to ‘win’. These legal narratives work together to constitute sanctuary and are instantiations of pastoral and sovereign powers at the level of the subject.

Can one describe the ‘natural’ process of pregnancy as ‘harm’, even when negligently brought about? What does that harm consist of? Offering a contextual analysis of the English judiciary's characterisation of wrongful pregnancy, this paper demonstrates from a feminist perspective that the current construction of pregnancy as a ‘personal injury’ is deeply problematic. Forwarding an alternative account, this paper argues for law to embrace a richer notion of autonomy that will better resonate with women's diverse experiences of reproduction, and articulate the importance of autonomy in the reproductive domain: notably, women gaining control over their moral, relational and social lives.

The Chamberlain murder trial or ‘dingo case’ polarised the Australian community – the miscarriage of justice, the relentless media scrutiny and the mediaeval-style public condemnation of Lindy Chamberlain all exposed the prejudices of mainstream Australia. At the same time, Lindy Chamberlain experienced a groundswell of public support: the case was publicised around the world and generated local protest groups. This paper is concerned with re-thinking the historical effects of that case, and is theoretically informed by contemporary debates on the violence of the law, formations of public culture, and cultural trauma.

The question of how to address copyright's insufficiencies with respect to Native American creative production is at the center of an ongoing legal debate; however, more important is whether Native American oral forms should be protected by copyright. Although some late twentieth-century court decisions have opened the door for courts to consider including intangibles within intellectual property law, copyright is not the answer to the problem of protecting Native American oral traditions from appropriation. Expanding the scope of copyright to envelop Native American oral traditions is antithetical to the creation and function of these forms within their host communities and would do more harm than good.