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| == "Bleeding Heart: Reflections On Using the Law to Make Social Change" pp.967-982== | | == "Bleeding Heart: Reflections On Using the Law to Make Social Change" == |
| Thesis: understanding the interrelationship between law and culture, and the use of law for social change
| | Goals of legal advocates for gay rights: |
| *Goals of legal advocates for gay rights:
| | 1. Protection from discrimination |
| # Protection from discrimination
| | 2. Freedom from intrusion and harassment |
| # Freedom from intrusion and harassment
| | 3. Some degree of recognition of queer relationships |
| # Some degree of recognition of queer relationships
| |
| *New York is culturally more tolerant of queerness, but legally offers no protections/recognition
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| *New Zealand is culturally intolerant of queerness, but legally offers protections/recognition
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| *Assumptions:
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| #Society needs change, and there are people committed to that change
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| #Employing the law to make change is appropriate
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| | |
| === i. The New Zealand Conundrum ===
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| *The 'conundrum': New Zealand is legally progressive with respect to queer protections, but is culturally conservative in this respect
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| *social change and legal change do not always walk hand-in-hand
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| **"one does not stimulate the other"
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| | |
| === ii. A Paradigm of Reform ===
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| *Goals of lawmaking
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| #To create new rights and remedies for victims
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| #To alter the conduct of the government
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| #To alter the conduct of citizens/private entities
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| #To express a new moral/standard
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| #To change cultural attitudes/patterns
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| **"rule-shifting": the traditional role of the law in expressing the formal rulemaking/enforcement function for society
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| ***the first three goals comprise this role
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| **"culture-shifting": advancing the rights and interests of people who have been treated poorly by the law and by the culture, promoting values that should be rights
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| *** the fourth and fifth goals comprise this role
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| *The Civil Rights Act of 1964 ("The Act")
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| **it had both "rule" and "cultural-shifting" power and met all five goals of lawmaking
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| **the Act was the result of "passionate and informal national debate" among Americans that lasted a decade, and this debate is what gave the Act its "culture-shifting" power
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| **because the Act was passed by Congress it was received as more legitimate, giving it "rule-shifting" power
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| | |
| === iii. When "Rule-Shifting" Becomes "Culture-Shifting" ===
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| *Factors that determine when "rule-shifting" becomes "culture-shifting":
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| #A change that is broad or profound
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| #Public awareness of that change
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| #A general sense of the legitimacy (or validity) of the change
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| #continuous enforcement of the change
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| **"culture-shifting" requires all four
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| ==== a. The Breath of Change ====
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| *Some forms of "rule-shifting" are "so grand or so pervasive" that they inevitably become "culture-shifting"
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| **ex: The Civil Rights Act of 1964, Anti-smoking laws
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| **these "pervasive" "rule-shifting" laws must be "known, accepted, and enforced" in order to have "culture-shifting" power
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| ==== b. Public Awareness of Change ====
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| *ordinary citizens must be aware that a "rule-shift" has taken place in order for "culture-shifting" to occur
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| *changes that happen at the legislative level typically gain more public awareness than those that happen at the judicial or administrative levels
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| **legislative lawmaking processes are typically more public, leading to more debate among constituents, allowing for a more significant "rule"/"culture-shifting" effect
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