Studies in Law, Politics, and Society: Volume 80

The chapter intervenes in the debate among scholars of legal impact about the extent to which law can change society. Reformers, aims are frustrated when targets of law respond with resistance to court decisions, especially where mechanisms to enforce case law are weak (Hall, 2010; Klarman, 2006; Rosenberg, 1991). Even when law’s targets abide by a law, however, other important studies have demonstrated that organizations can leverage ambiguous language to craft policies in compliance that further their aims (Barnes & Burke, 2006; Edelman, 2016; Lipson, 2001). This chapter examines a case in which a state constitutional provision banning affirmative action was written in relatively unambiguous language and one of its targets announced its intention to comply. Through extensive interviews with University officials, this chapter examines the University of Michigan’s use of financial, technological, and political resources to follow the language of the law while still blunting its impact. These findings suggest that to understand law’s impact on society, we need to reconceive compliance and not only take the clarity of the law and its enforcement mechanisms into account but also attend to the goals, resources, and practices of the groups it targets.

Since the late 1970s, US employers have increasingly drawn upon legal temporary labor under the H-2 visa to address their labor needs in low-waged sectors. Ever since, what Clark calls migrant labor activism and conflict in the courts has similarly erupted. However, as she argues in this chapter, making “adversarial legalism” the H-2 way of law has also been a story of comparative state formation. For, the litigation largely reflects the structure of labor migration created after the demise of government-run migration. In this regard, activists wrestle with the problems created by the new role of global labor intermediaries in the recruitment process, absolute employer control over hiring and firing, and the coercion produced in the shadow of a now minimally interventionist state. Drawing upon archival research, interviews with legal professionals, and the entire case law docket in this area, this chapter puts “adversarial legalism” under the H-2 visa in its historical and political context.

Since the early 1990s, the so-called government-to-government relationship between the United States and tribal nations has increasingly been executed pursuant to laws and executive orders requiring “meaningful dialogue between Federal officials and tribal officials” before taking actions that impact tribal matters. Thus, the legal claim at the bottom of the political action taken by Standing Rock Sioux and their allies against construction of the Dakota Access Pipeline is that the Army Corp of Engineers failed to engage them in “meaningful tribal consultation” prior to fast-tracking their approval of the required permits. But what should “meaningful” mean in this context, particularly when it is learned that while agencies are required to conduct such dialogues, they are not required to heed them in making their final decisions? This chapter explores this question through an ethnography of legal language in one tribal consultation between the Hopi Tribe and the US Forest Service, arguing that the humanistic empiricism of such an approach affords an evidence-based, context-sensitive rule for how the meaningfulness of a federally mandated “tribal consultation” should be evaluated and enforced.

This chapter traces an emerging place-based governance region and identity centered on the California Current large marine ecosystem, which takes in the states of Oregon, Washington, California, First Nations, and the federal government branches and agencies responsible for west coast ocean governance. These efforts have been fostered by Executive Orders aiming to coordinate the work of federal agencies responsible for governing the ocean and have been realized in the human and ocean data networks, and working forums of government representatives from the state, federal, and First Nations governments. My analysis brings science and technology studies, law and society studies, and anthropological ethnographic practice into conversation through an exploration of the bureaucratic socialities that are challenged with grappling with the social and ethical ramifications of unpredictable ocean conditions due to impending climate change and increased human uses.

On Inauguration Day 2017, Milo Yiannopoulos gave a talk sponsored by the University of Washington College Republicans entitled “Cyberbullying Isn’t Real.” This chapter is based on participant-observation conducted in the crowd outside the venue that night and analyzes the violence that occurs when the blurring of the boundaries between “free” and “hate” speech is enacted on the ground. This ethnographic examination rethinks relationships between law, bodies, and infrastructure as it considers debates over free speech on college campuses from the perspectives of legal and public policy, as well as those who supported and protested Yiannopoulos’s right to speak at the University of Washington. First, this analysis uses ethnographic research to critique the absolutist free speech argument presented by the legal scholars Erwin Chemerinsky and Howard Gillman. Second, this essay uses the theoretical work of Judith Butler and Sara Ahmed to make claims concerning relationships between speech, vulnerability, and violence. In so doing, this chapter argues that debates over free speech rights on college campuses need to be situated by processes of neoliberalization in higher education and reconsidered in light of the ways in which an absolutist position disproportionately protects certain people at the expense of certain others.