#LSANOLA16 Preview: From Questions of Belonging to Questions of Excess

Thursday, June 2nd 8:15 AM  – 10:00 AM
NOLA Marriott Balcony M (4th floor)

Law and society scholarship illuminates how law can inform and react to social change that takes shape through social movements and in everyday life. Law, however, is a regulatory force situated among socio-economic, communal, and interpersonal relationships. This panel features papers that unpack the place of law across spaces of political mobilization, identity formation, securitization, and incarceration. They offer close examinations of NGOs, physical environments, discursive articulations of citizenship, and more mundane interactions. They ask: What is the place of law in these spaces? How do conditions of social change exceed law? Can a shift away from law as our primary object of inquiry lend to new directions in socio-legal exploration? What can we learn from studies that do not belong, at least not neatly, within the scope of law and society scholarship? The panel provides insight into these questions by bringing ethnographic research in dialogue with humanistic approaches.

Organizer, Chair, Discussant: Kathryn Henne, Australian National University
Papers: Negar Razavi, Jamila Loud, Nicholas Iacobelli

American Think Tanks, Foreign Policy Elites, and Spaces of Exception
Negar RazaviUniversity of Pennsylvania

In September 2014, the New York Times published an article called “Foreign Powers Buy Influence at Think Tanks”, which accused a number of prominent American think tanks of taking money from foreign governments (including Qatar, Norway, and the United Arab Emirates among others) to essentially “lobby” the U.S. government on behalf of these donors. This story broke just as I was beginning a year-long ethnographic project in Washington DC, evaluating the role of think tank experts in shaping U.S. security policies towards the Middle East (and Iran and Egypt specifically). Even if the allegations made by the New York Times article were wholly baseless, what they did do was point to the relatively ambiguous legal-political status of these think tanks in the American policy landscape. As neither formal government institutions nor traditional academic centers, think tanks play a unique hybrid role combining policy research, advocacy, and high-level government and public outreach. And while differences among these institutions clearly exist, most are gaining considerable visibility in policy debates in recent years-particularly in areas of foreign policy and national security. In this paper, I evaluate how these foreign policy think thanks construct and navigate spaces of legal and political “exception”, through which various forms of power and capital are reproduced in order to influence policy decisions towards this geostrategic region. As with other anthropological studies of elites, this study inverses traditional questions about hierarchy and power-which are often used to explain the experiences of the vulnerable and marginalized-to interrogate how powerful groups maintain and assert their privilege at the exclusion of others. As many scholars have asserted, 9/11 helped produce a perpetual sense of emergency and crisis for the national security state, not only in the U.S. but in many parts of the world. In this paper, I argue that given this prolonged state of emergency, American think tanks have come to operate as unofficial extensions of State power, designed to try to help the State evaluate and address the many “security threats” around the world, without being hindered by the formal political, bureaucratic, or economic restrictions placed on government institutions and experts. These think tanks are able to establish their status as pseudo-governmental institutions, in practice, by navigating a space between exclusivity and secrecy on the one hand and public engagement and openness on the other. Through these various practices and mechanisms that simultaneously index openness and exclusivity, therefore, these policy institutions reproduce spaces of exception that blur the legal-political lines separating the State(s), civil society, experts, and private sector. To help illustrate how these spaces impact actual government policy decisions, I focus on the role of think tanks in shaping U.S. policy debates regarding Iran and Egypt from September 2014 until October 2015.

The Dyer Anti-Lynching Bill: Considering Race and Collective Meaning in Legal Consciousness
Jamila LoudUniversity of Maryland College Park

In the study of legality and culture there are many variables that impact how an individual comes to see their own relationship to the law. For some the law is abstract and distant for others it is concrete, overbearing and restrictive. In American legal history, racial minorities have not always had the discretion to choose to have the law as part of their everyday experience but rather have historically been considered legal subjects who are in direct negotiation with legal institutions, as a result of their immutable racial characteristics. This research project explores the relationship between institutional dialogue, legal power structures and the legal consciousness of African Americans from, 1914 to 1925. During this time period the Dyer Anti-lynching Bill was introduced and heavily debated in Congress, as well as in the media and in communities. The Dyer Anti-Lynching Bill ultimately failed, as political will waned, and the federal government never enacted any measures to protect African-Americans against lynching. This time period provides a rich analytical focus point to ask how institutional rhetoric regarding the protection of rights impacts the development of legal consciousness. This research examines legal hegemony, through exploring the processes and consequences that result from the disparity between a rule of law that promises equality and the reality of law that reproduces inequity. Using archival research of black newspapers, this research seeks to develop a cultural constitutive theory of how law works, through the examination of cultural rhetoric, practices and expectations. This paper looks at how African Americans during this time period perceived constitutional dialogue and conflict over the protection of their rights against lynching, as wells how they perceived the purpose of law, as either a tool to make change or a restrictive instrument. The archival data shows that during this time period understandings of legality in the African American community were dominated by notions of equality and morality. The archival data shows a conflict in which there is a sense of hope and despair because the advocacy strategies developed in the African American community and supported by the writers in the black newspapers focused around lobbying Congress to provide federal protection from lynching but at the same time there is recognition that the lynchings are protected by legal systems. The rights talk in the African American newspapers is very sophisticated in reference to federalism and the relationship between states, municipalities and the federal government. Further, the rights talk in the news paper makes clear that the community at the time believes in the federal legislative process as a better protector of rights than the courts. Much of the existing literature exploring legal consciousness focuses on individual interactions with government institutions, litigation with neighbors and conflict with spouses. By focusing on the consciousness of individuals and understanding of everyday life and routine the existing literature does not speak to the collective experience and the mutually defining nature of consciousness. Further, the existing literature does not consider how power, domination and inequity impact the collective understanding of the relationship between law and citizens. The legal consciousness framework is necessary to law and society scholarship and provides a fuller understanding of how the rule of law works in a democratic society. However, law cannot exist without a citizenry of believers, and racial considerations of legal consciousness provides a framework to ask how and why do individuals who are denied rights continue to believe in the legal process. Historically, American political and legal systems have created a complicated relationship for African Americans between consciousness, ideology and the continuous fight for the protection of fundamental rights and equality. This research project examines the historically contingent nature of that collective consciousness, and my analysis of, race, rights and consciousness is significant for understanding both the development of culture in African-American communities and the future constituting of civil and social rights.

Prison Healthcare and the Legal Economy of Suffering
Nicholas IacobelliUniversity of Pennsylvania

Despite the claim of American revolutionaries in the Declaration of Independence that “all men are created equal,” with respect to certain “inalienable rights,” the U.S. Constitution contradicts that claim with two amendments that construct a seemingly paradoxical legal status for the 2.2 million inmates in America’s prisons. The first is the Thirteenth Amendment, which abolishes slavery and involuntary servitude “except as punishment for a crime,” which some have argued has cast inmates as state property and revoked the inalienability of their civil rights. The second is the Eighth Amendment protection against “cruel and unusual punishment,” which has emerged in legal discourse and practice to safeguard a right to healthcare access for inmates. Healthcare therefore occupies a privileged yet contradictory position in conceptions of inmates as rights-bearing individuals and legal subjects; it is a right, but one that is tempered by ideological commitments to punishment and inmates’ custodial status as state property. In this paper I explore the tensions between care and custody that have emerged in the shadow of a legal history mandating inmate access to healthcare. In 1976 the Supreme Court decided in Estelle v. Gamble that “deliberate indifference to the serious medical needs of prisoners” violated the Eighth Amendment and safeguarded three rights with respect to care: access to care, the necessity of other staff to follow a healthcare provider’s orders, and the right to a professional opinion. I bring this legal history into sharp focus with the routine practices in a medical unit of a men’s maximum-security prison in Pennsylvania. Drawing on over two years of ethnographic data collection among inmates, healthcare providers, and corrections officers, I look at how the echoes of legal decisions resonate in the daily operation of the unit and conceptions of what inmates are entitled to either by virtue of their incarceration or by virtue of their humanity. In doing so I show how the right to healthcare is neither constructed nor recognized as a right to healthcare as such. Because of the premium placed on malicious intent and what legally constitutes the seriousness of a medical need in Eighth Amendment litigation, it is instead seen and practiced as a right not to be subject to an excess of harm at the hands of the state and medical providers. Focusing on the provision of rights to the incarcerated, here specifically the right to healthcare, provides some nuance to the meaning of granting rights in these increasingly punitive settings and brings to bear questions concerning the degrees to which the punitive constraint of their liberties intersects with harm imposed upon them (that is, how much harm is legally conscionable as a punitive measure for wrongs done and what kinds of harm can be enacted). I conclude therefore with attention to the implications of a legal economy of suffering in the lives of inmates and imposed on the healthcare system that tends to them. In this context the continual reproduction of suffering reifies a system of inmate subjugation before the law while also providing some opportunities for provisional forms justice and a reconfiguration of politics and the law on its own terms.

About Jennifer Curtis

Jennifer Curtis is an Honorary Fellow in Social Anthropology at the University of Edinburgh: http://www.sps.ed.ac.uk/staff/social_anthropology/curtis_jennifer.

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