DCC Graduate Workshop 2007-2008

Next Workshop:  Thursday, April 24, 2008, 4:30pm in College Hall 209:

Forum: The Judiciary, the Law and Democracy:

Phillip Buckley (Graduate School of Education, University of Pennsylvania): "Critical Citizens or Loyal Citizens: Exploring the Concept of Citizenship in Student Speech Rights Cases."  [Abstract]  Download Paper

and

Claire (Seon Hye) Lim, (Economics, University of Pennsylvania): "Turnover and Accountability of Appointed and Elected Judges."[Abstract]  Download Paper

Fall Semester Schedule

Thursday, September 13, 2007:

Jennifer Coleman, (Political Science, University of Pennsylvania) "Authoring (In)Authenticity, Regulating Religious Tolerance: the Legal and Political Implications of Anti-Conversion Legislation for Indian Secularism." 

Discussant: Sourabh Singh (Sociology, Rutgers)           Download Paper in PDF

Thursday, October 11, 2007:

Ethan Schrum, (History, University of Pennsylvania):  "Establishing a Democratic Religion: Metaphysics and Democracy in the Debates Over the President's Commission on Higher Education."

Discussant: Kate Moran (Philosophy, Penn)                  Download Paper in PDF

Thursday, November 8, 2007:

Ryan Muldoon, (Philosophy, University of Pennsylvania): "Diversity and the Public Sphere."

Discussant: Katherina Glac (Legal Studies and Business Ethics, Wharton)     Download Paper in PDF

Thursday, December 6, 2007:

Ben Mercer, (History, University of Pennsylvania): "The University at the New Frontier: The Expansion of Higher Education and the Origins of the Student Movements of 1968 in France, Germany and Italy. "

Discussant: Stefan Heumann (Political Science, Penn)                                Download Paper in PDF

Spring Semester Schedule:

Thursday, January 17, 2008:

Forum: Indigenous Populations, Citizenship and Constitutionalism in Latin America:

Christopher J. Fromherz, (Law, University of Pennsylvania): "Indigenous Peoples' Courts:  Egalitarian Juridical Pluralism, Self-Determination, and the UN Declaration on the Rights of Indigenous Peoples."

and

Meredith Staples (Political Science, Rutgers): "Mexico, Indigenous Peoples and Citizenship"

Thursday, February 21, 2008 :

Hannah Wells (English, University of Pennsylvania): "American Legal Pragmatism and Jim Crow."

Wednesday, March 19, 2008:

Mark Navin (Philosophy, University of Pennsylvania): "Luck, Responsibility, and Equality in Global Justice."

Thursday, April 10, 2008 :

Luca Follis (New School for Social Research): "Synthetic Slaves and the Living Dead: Rethinking Civil Death, the Thirteenth Amendment and Felon Disenfranchisement"

Thursday, April 24, 2008:

Forum: The Judiciary, the Law and Democracy:

Phillip Buckley (Graduate School of Education, University of Pennsylvania): "Critical Citizens or Loyal Citizens: Exploring the Role of Ideology in Student Speech Rights Cases."

and

Claire (Seon Hye) Lim, (Economics, University of Pennsylvania): "Turnover and Accountability of Appointed and Elected Judges."

Abstracts of papers:

Jennifer Coleman "Authoring (In)Authenticity, Regulating Religious Tolerance: the Legal and Political Implications of Anti-Conversion Legislation for Indian Secularism."  Download PDF

This paper examines the debate over the passage, institutionalization and increasing popularity of anti-conversion legislation in India—policies designed to regulate, if not prevent, religious conversions. These state-sponsored bills (ironically entitled ‘Freedom of Religion’ acts) are illustrative of the ongoing Hindu nationalist agenda to problematize the question of ‘rational’ behavior and proper citizenship vis-à-vis religious choice and identity. The aim of the legislation is to put the spiritual sincerity of conversions (specifically to Christianity and Islam) in doubt, and highlights the extent to which religious freedom remains demographically threatening to ‘Hindu’ upper caste hegemony, and is conceptualized as hostile to Indian national solidarity as a whole. The regulation of conversion, then, is an attempt to manage ‘legitimate’ and ‘illegitimate’ shifts in religious identity, whereas the targets of ‘illegitimacy’ and ‘irrationality’ in these bills are women, children, lower caste Hindus, scheduled tribes and untouchables.

I explore the manner in which ‘Freedom of Religion’ legislation has shaped the meaning and content of the Indian secular project, focusing on the ways in which the bills challenge the understanding of ‘freedom of religion’ as ‘freedom of conscience’, and the role gender concerns have played in these debates. Drawing broadly on the theoretical work of Gauri Viswanathan, Talal Asad, Robert Baird and scholarship linking the role of gender to the construction of nationalism and secularism in modern India, I evaluate recent policies and legal decision shaping the politics of conversion. I aim to provide a more thorough and up-to-date understanding of the contest over Indian secular thought in law and policy, proposing that while Indian secularism continues to be an evolving and dynamic process of negotiation and balance, the increasing prominence of ‘Freedom of Religion’ legislation will be a dramatic pivot point influencing the future limitations and possibilities of Indian democratic consolidation.

Ethan Schrum, (History, University of Pennsylvania):  "Establishing a Democratic Religion: Metaphysics and Democracy in the Debates Over the President's Commission on Higher Education."  Download PDF

The President’s Commission on Higher Education appointed by Harry Truman—which published its report, Higher Education for American Democracy, in 1947-48—made the first major U.S. government pronouncement on the goals of higher education. In so doing, the Commission took one side in a larger debate over the philosophical presuppositions of democracy and their implications for education. Several national educational organizations took the opposite position and led a dissent. The Commission and its dissenters agreed on the need to promote democracy, but they disagreed sharply on what democracy meant and how to promote it via higher education. The Commission believed that democracy was an end in itself, that it required no religious or metaphysical foundations, and that state-controlled institutions of higher education with curricula centered on social problems were essential for strengthening it. The opposing position maintained that democracy was a means to other ends, that it required religious and metaphysical foundations, and that privately-controlled institutions of higher learning with humanistically-oriented liberal arts curricula were essential for strengthening it. These debates struck at fundamental issues regarding the respective places of state and private institutions in the American constitutional system and in furthering American democracy.

Ryan Muldoon, (Philosophy, University of Pennsylvania): "Diversity and the Public Sphere." Download PDF

A triumph of the Western Liberal political tradition is the enshrinement of the division of the public and private spheres.  This distinction, aided by the development of individual rights, specifies the limits of the state, and the extent of the freedom of individuals.  If we view the private sphere as prior to the public sphere, a question arises as to how we ought to create the public sphere.  This becomes particularly relevant as democratic societies become increasingly diverse: diverse societies face problems and opportunities that do not arise in more homogenous societies.  To investigate this challenge of diversity, I consider two prominent accounts of the public sphere from two distinct branches of the western liberal tradition, social contract theory and classical economic theory, and contend that each branch has a problematic view.  Social contract theorists attempt to develop the public sphere without taking into regard any private-sphere considerations, and in doing so, shut out any consideration of diversity in the public sphere.  Classical economic approaches attempt to form the public sphere by claiming it is merely a continuation of the private sphere, but in doing so fail to adequately deal with public goods and negative externalities.  I claim that an account of the public sphere that can be used to addressany concerns raised by diversity will have to take a position between these two approaches.

Ben Mercer, (History, University of Pennsylvania): "The University at the New Frontier: The Expansion of Higher Education and the Origins of the Student Movements of 1968 in France, Germany and Italy."Download PDF

This paper examines the origins of the student movements in Western Europe in the late 1960s by tracing the history of the rhetoric and reality of the expansion of higher education. In the early 1960s, intellectuals and reformers commonly decried the lack of university students, yet by the end of the decade “overcrowding” had become a recurrent complaint and an excess of graduates assumed to be one reason for the revolts of 1967-8. How was the expansion of higher education understood by intellectuals, politicians and students? How did the reality differ from the rhetoric and what was the precise link between the mass university and the politics of revolution?

Christopher J. Fromherz, (Law, University of Pennsylvania): " Indigenous Peoples' Courts:  Egalitarian Juridical Pluralism, Self-Determination, and the UN Declaration on the Rights of Indigenous Peoples."

On September 13, 2007 the United Nations General Assembly overwhelmingly adopted the “United Nations Declaration on the Rights of Indigenous Peoples,” which recognized, inter alia, the right of such peoples to “self-determination,”  “autonomy or self government,” and “the right to promote, develop and maintain . . .  in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.”  The Declaration is probably the single most important development in the history of international indigenous law. Meanwhile, regional and national indigenous movements have gained significant ground in various parts of the world.  Most notably, Bolivia, where 62% of the population is indigenous, elected its first indigenous president in 2005, and is currently rewriting its Constitution, in which one of the most important, and contentious, goals is redress for subjugation of the indigenous majority.  In particular, the Bolivian Constitutional Assembly is redesigning the justice system to include not one judiciary—that is, traditional “ordinary justice” based on the civil law—but two:  In addition to the civil judiciary, the proposed Bolivian Constitution contemplates a “community justice” system, or indigenous judiciary, based on indigenous law and custom. This paper looks at the legal and policy questions raised by the prospect of a separate indigenous judiciary in Bolivia, including the problems of compliance with international human rights norms, jurisdictional coordination between systems, and “legal translation.”  The paper takes the normative a priori that the collective right to “promote, develop, and maintain [indigenous] juridical systems” is worth protecting despite the costs it may impose on the state and the private sector.  However, the paper (1) suggests that—as currently framed—the proposed Bolivian system needs change to effectively implement the spirit of the UN Declaration, and (2) proposes several broad criteria indigenous peoples’ and States should use in future judicial reform.  Download Papers in PDF

Meredith Staples (Political Science, Rutgers): "The Challenge of Plurinational Citizenship: Reconciling Indigenous Demands for Legal Pluralism with Liberal Citizenship in Mexico’s Legal System"

The modern Mexican state has actively resisted acknowledging its indigenous peoples rights to land and self-government. The Mexican state’s granting of full citizenship to all peoples residing within its territory purposefully obliterated the cultural and political autonomy of its indigenous population. Moreover, the citizenship bestowed by Mexican revolutionary state on the popular sector, the peasantry and the indigenous peoples was a massified form of citizenship. In other words, citizenship was granted to the group not to the individuals within the group- citizenship belonged to the faceless masses not to a collection of private individuals. The state then co-opted these sectors’ citizenship by exchanging their political participation for government services and benefits. The Mexican state’s contraction following the 1982 peso crisis, which was later intensified with the passage of NAFTA in 1994, along with its repudiation of its commitment to semi-subsistence farming in the 1980s has heralded in substantive changes to citizenship in Mexico. This withdrawal of the state has led to an intensification of citizen opposition in the form of social movements to the massified corporate forms of political participation because they are no longer providing real benefits. These social movements like the Zapatista movement of Chiapas who in their contestation with the state are primarily concerned with revising the legal, political and cultural construction of citizenship and democracy. With these renewed calls by indigenous peoples for group-differentiated citizenship (i.e. political and legal autonomy), the Mexican state must not only abandon completely its ideological commitment to assimilation and co-optation, but take seriously the indigenous peoples demands to revise the terms of their citizenship. If it does not, it risks further destabilization when its indigenous people pursue alternative non-national state avenues of securing their rights and values.  Thus, not only secure its stability and viability, but to also meet its responsibility to respect the human rights of its indigenous peoples, the Mexican government must begin to take seriously the idea of a multinational state: a state that recognizes indigenous peoples’ social, political, territorial and cultural rights and powers. In this paper, I first will examine the ideological and political roots of citizenship in Mexico as it particularly relates to Mexico’s native peoples. I then will discuss the current struggle over the discourse of citizenship. Lastly, I will put forth an argument for the construction a multinational state in Mexico. Download Papers in PDF

Hannah Wells (English, University of Pennsylvania): "American Legal Pragmatism and Jim Crow."

Oliver Wendell Holmes 1881 The Common Law marks the founding of American legal pragmatism.  A series of lectures on the history of law and contract, it describes the laws evolution from an ancient model rooted in kinship and blood sacrifice to a contemporary model of common law jurisprudence. Within this gradual process, argues Holmes, the formal structures of law become progressively abstract so as to remain relevant to each generation. Particular communities turn to the law's inherited forms to challenge those very forms. Characterizing the pragmatism inherent in this model, Holmes wrote to his friend Harold Laski: "You respect the rights of man--I don't, except those things a given crowd will fight for."   On the one hand, then, Holmes's history of the law is one of increasing idealization, epitomized by abstractions like "the rights of man." On the other hand, it works to cleanse the law of such abstractions, making way for a more immanent will of the people as it is manifest in the felt needs of particular communities. Why, then, did pragmatism arise at the height of Jim Crow legislation?

In this paper I place the formative logic of pragmatism within an historical frame that included both Jim Crow racial violence and a white academic left that sought to distinguish itself from such violence.  To do so is to expose pragmatism's own construction of a civic identity that lingers as the product of a Jim Crow nationalism.  I read Oliver Wendell Holmes, Jr.'s The Common Law alongside the contemporaneous construction of citizenship that occurred through Supreme Court rulings on the Fourteenth Amendment from the end of Reconstruction to the 1896 Plessy v. Ferguson case.  In the language of these cases I isolate a post-Reconstruction legal distinction between subject and citizen that not only mirrors that of the first pragmatist philosophers but also presents race as the formative grounds for this distinction. In the late-nineteenth century, I argue, pragmatism worked reciprocally with a newly static discourse of rights to reconfigure the category of US citizen in response to a post-Reconstruction racial order. Download Paper in PDF

Mark Navin (Philosophy, University of Pennsylvania): "Luck, Responsibility, and Equality in Global Justice.."

The received view in international political theory is that a just world would be one in which each society possessed well-ordered institutions and in which societies related to each other on terms of equal respect.  Call this view Global Humanitarianism.  In contrast, some political philosophers argue that global justice also requires that international inequalities be regulated by principles of distributive justice (e.g., that inequalities between societies be to the advantage of the worst-off).  Call this view Global Egalitarianism. Many of the most prominent advocates of Global Egalitarianism rely upon what has been called a luck egalitarian account of why international inequality matters.  Luck Egalitarianism is the idea that inequalities that arise from ‘chance’ (rather than from ‘choice’) are morally problematic and require redress or regulation via principles of distributive justice.  Luck egalitarian advocates of Global Egalitarianism argue that international inequalities may arise from the unequal distribution of natural resources between societies, from the activity of global markets, and from decisions that were made before current generations were born.  Since people do not choose the distribution of natural resources, the activity of global markets, and the decisions of past generations, luck egalitarians claim that inequalities that arise from these circumstances give rise to demands for Global Egalitarianism.  In response, I argue that these three circumstances either do not give rise to international inequalities or are circumstances for which it is reasonable to hold people responsible.  For that reason, I argue that luck egalitarians should be satisfied with Global Humanitarianism.  This is a conventional view of liberal international justice, but it is one that luck egalitarians (their protests, aside) seem obligated to accept.                   

Luca Follis (New School for Social Research): Slaves of the State and the Living Dead: Rethinking the Longue Durée of Collateral Sanctions for Felony Conviction

                   

        This article explores the legal exclusion of felons through civil death statutes, court decisions and voting laws in 19th century America.  Beginning with Schmitt's analysis of the political and Agamben's discussion of Homo Sacer it develops a theoretical model for the exclusion of convicts that seeks to move beyond a schematic insider/outsider framework.  I argue that civil death and similar forms of legal exclusion are part of the boundary-setting functions of law which are essential in constructing and policing social order. 

        This aspect of law is connected to the State's monopolization of symbolic violence and its ability to dispense symbolic capital. I note that in the wake of the rise of imprisonment and the reform of penal law (and hence the curtailment of public punishments) the symbolic meaning of punishment lost much of its public force. Yet this also meant that meaning and stigma would now have to be managed over the life course of convict populations and would have to make their impact felt despite the fact that punishment was now meted out 'behind the scenes'. If one couples this with the 'patchwork' nature of the state and the decentralized manner in which it ran its prison system, an archaic practice like civil death begins to have a renewed purpose: (1) Setting the symbolic margins of a community moving from traditional forms of authority to more modern and distended forms; and (2) Extending the state's hold over symbolic and social capital through its negation in the persona of the criminal.

        Relying on Mary Douglas's analysis of margins and social pollution and Patterson's discussion of extrusive forms of slavery, I then explore the cultural dimension of penal excommunication.  I elaborate a conception of the margins as a dangerous place whose denizens embody the combined traits of peril and vulnerability. The danger of the margins is linked to their role in cultural rituals: the margins are a state of transition between one status and the next.  For the prisoner who has been excommunicated by the social order, this transition lacks an end-point, effectively trapping him - qua synthetic slave - in a state of liminal incorporation.

 

Phillip Buckley (Graduate School of Education, University of Pennsylvania): "Critical Citizens or Loyal Citizens: Exploring the Concept of Citizenship in Student Speech Rights Cases."

This paper examines two student speech rights cases that have led to a split in the US Circuit Courts of Appeal: Harper v. Poway (9th Cir., 2006) and Saxe v. State College Area School District (3rd Cir., 2001). The first part argues that the US Supreme Court precedent governing these cases can be better understood when examined through the lens of citizenship and civic education. This examination of the precedent demonstrates that as the Supreme Court justices have delimited student rights and applied them to conflicts between students and schools, their opinions have explicitly and implicitly drawn on different models of “good citizenship” and different visions of how the qualities of a “good citizen” are fostered. Part two turns to the opinions in Saxe and Harper and examines how the opinions make use of the Supreme Court precedent to justify opposing outcomes. The paper concludes with the argument that the decision in Harper accords better with the principles found in the precedent.

Claire (Seon Hye) Lim, (Economics, University of Pennsylvania): "Turnover and Accountability of Appointed and Elected Judges."

Each year, more than 90 percent of civil and felony crime cases in the United States are handled by state court judges. This paper investigates two different systems that are used to select and retain these judges. Under one system, when there is an open seat on the bench, the governor appoints a new judge; when the term of the judge expires, he faces an up-or-down (i.e., yes-or-no) majority decision by voters, without facing a challenger. Under the other system, judges are selected and re-elected through competitive elections.
This study focuses on the relationship between reelection rates and the behavior of the judges under the two systems. National statistics show that the reelection failure rate of appointed judges is substantially lower than that of elected judges. Specifically, we address the following questions: (i) How are reelection outcomes under the two systems related to judges’ court decisions? (ii) To what extent do other factors (e.g., party affiliation) affect reelection outcomes? (iii) Are there any differences between the types of judges selected under the two systems? To answer these questions, we specify and estimate a dynamic model of judges’ behavior using individual-level data on judges’ criminal sentencing and electoral outcomes from the state of Kansas, where both systems are used to select and retain the state district court judges.
Our findings are as follows. First, the sentencing behavior of elected judges is an important determinant of their reelection. However, the extent and the direction of the effect are substantially different depending on the political orientation of their constituency. In contrast, when the judges are appointed, their sentencing behavior has no effect on their reelection. Second, party affiliation and political climate during an election significantly affect the reelection probability of the elected judges. On the other hand, the effect of these variables on the appointed judges’ reelection is negligible. Lastly, our estimates suggest that appointed judges are more homogeneous
than elected judges in terms of their sentencing preferences.

For further information please contact: mercerb@sas.upenn.edu