Rights and Their Translation Into Practice II (2012): Abstracts

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Abstracts

  Christopher N.J. Roberts

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  • Title: The History of Human Rights Formation (or How to Study a Concept that does not yet Exist)
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  • Abstract: Human rights are typically studied from intellectual approaches rooted in political science, international relations, the law and/or philosophy. While these approaches have provided a wealth of indispensable knowledge about the history of human rights, they often conceive of human rights in a way that dislocates them from their social moorings. This paper outlines a new inter-disciplinary framework for the historical study of human rights that focuses on these social elements that are commonly relegated to the penumbra of other such approaches. So instead of looking at the human rights formation process in terms of the development of legal doctrine, moral ideas or political institutions, this approach views human rights as basic statements of human relationships that emerge from struggle.

    Contrary to the standard histories of the 1948 Universal Declaration of Human Rights that assume consensus and the triumph of human rights during the post World War II period, this new approach uncovers an underexplored side of this history. It shows that there were in fact numerous reservations against the human rights concept that are often overlooked by human rights scholars. Because the concept promised (or threatened) to create new categories of rights holders, imperial powers such as Great Britain and influential professional organizations such as the American Bar Foundation and the American Medical Association expressed serious reservations about international human rights treaties. Interestingly, during the same period progressive thinkers like Hannah Arendt and Gandi—each for their own reasons—also rejected basic aspects of the new human rights concept. In addition to uncovering a formerly unknown history of of opposition and resistance against human rights in the late 1940s, this approach also provides a new angle for addressing the many well known deficits and shortcomings within contemporary human rights method, theory and practice.

  John Hagan

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  • Title: Neighborhood Sectarian Displacement and the Battle for Baghdad: Unanticipated and Anticipated Consequences of Crimes against Humanity in Iraq
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  • Abstract: Even when American decision-makers were denying it, ordinary Iraqis in the neighborhoods of Baghdad fearfully anticipated the dangerous consequences of the U.S.-led invasion. We analyze two unique Iraq datasets from the perspective of Tilly’s organized crime theory of state-making and Cloward and Ohlin’s criminal opportunity theory. Sectarian criminal violence by Shia militia disproportionately forced Sunni residents from their Baghdad neighborhoods. The Mahdi Army, mobilized through the coercive entrepreneurship of Muqtada Al Sadr, used organized crime tactics of harassment, threats, and protection to defend and extend Shia influence in the remaking of the Iraq state. The Mahdi Army changed the neighborhood demography of Baghdad and helped leverage the Sadrist movement into the political leadership of Iraq – the first Arab Shia state. Ordinary Iraqis were victims of an amplified “self-fulfilling prophecy of fear” that created the momentum necessary for massive sectarian displacement in the battle for Baghdad.

  Katherine Barnes

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  • Title: Measuring Racial Profiling
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  • Abstract: Statisticians have long recognized the problem of selection into samples; specifically, that selection into a sample, if non-random, can create significant bias. This paper creates methods to control for selection bias in the face of limited data, as well as other data problems that arise in data collected by police departments on stops and searches. The project tests this model against simulations and new data on racial profiling in the context of drug interdiction on the Maryland highway. The estimation finds that Black and white drivers are more likely to be targeted, despite lower probabilities of carrying large amounts of drugs (and about even probabilities of carrying some drugs). This suggests, as an initial matter, that the racial profiling engaged in by the Maryland State Police was not efficient, and that a more efficient profile would focus on other minorities than Black drivers and men. The consequences of this more efficient profile are, when looking only at direct costs, win-win: less innocent individuals would be targeted, and more drug dealers (as opposed to simple users) would be found. Further investigation would provide additional information about the possible tradeoffs to be made, as well as quantify how uncertainty or misspecification affects the results.

  Nicholas Pedriana and Robin Stryker

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  • Participant Information — Robin Stryker
  • Title:‘Effects-Based’ Civil Rights Law: Comparing U.S. Voting Rights, Equal Employment Opportunity and Fair Housing Legislation’
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  • Abstract: Between 1964 and 1968, the United States Congress enacted three potentially transformative civil rights laws: Title VII of the 1964 Civil Rights Act (prohibiting employment discrimination based on race, sex, religion and national origin), the Voting Rights Act of 1965 (removing systemic barriers to black voters), and the Fair Housing Act of 1968 (banning race, religious and national origin discrimination in the sale and rental of housing). Evidence suggests that, of the three, voting rights was by far the most successful; fair housing was a general failure, and Title VII fell somewhere in between. This paper seeks to explain these divergent outcomes. Extant explanatory accounts focusing on white support/resentment or state-internal resources including formal enforcement powers, large budgets, established bureaucratic infrastructure and policy entrepreneurship can help us understand and explain outcomes of particular civil rights policies. However, no extant explanation can explain fully the observed differences across all three cases. We propose and provide evidence for an alternative hypothesis – that differences in the success of federal voting rights, equal employment opportunity and fair housing legislation can be explained by the extent to which each incorporated what we call the “group-centered effects test.” The effects test provides a sociologically-driven legal and cultural framework for defining, proving, and remedying unlawful discrimination. The framework focuses on systemic group disadvantage rather than individual harm, discriminatory consequences rather than discriminatory intent, and substantive group results rather than formal procedural justice for individual victims or alleged wrongdoers.

  William Bielby (In collaboration with Maria Krysan and Cedric Herring)

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  • Title: Is Support for Workplace EEO Interventions Influenced By Organizational Justifications and Intended Beneficiaries?
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  • Abstract: A growing and important body of scholarship examines the efforts companies make to manage the language and imagery of their workplace diversity and anti-discrimination efforts in order to maintain legitimacy with internal and external stakeholders. But little is known about whether these efforts at "symbolic management" have any impact on Americans' inclinations to support or oppose specific workplace interventions designed to enhance diversity or minimize discrimination. I report preliminary results of a survey experiment in which White, Black, and Hispanic Americans are asked their opinions on a workplace EEO interventions ranging from outreach to strict accountability. The survey experimentally manipulates the justification for these interventions as either: (1) efforts to minimize discrimination; (2) efforts to increase diversity; or (3) no justification at all; and it manipulates the intended beneficiaries of these interventions as either women or racial minorities. We hypothesize that there will be more support for interventions targeting women than for those targeting racial minorities; that there will be more support for interventions justified with a diversity rationale than for those justified with an anti-discrimination legal compliance rationale; and that support for interventions that modify organizational structures versus individual behavior will depend on respondents' beliefs about the sources of inequality generally and the sources of gender and racial inequality specifically.

  Robin Phinney

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  • Title: Does Anti-Poverty Advocacy Matter? Interest Groups and State Policy Choices after Welfare Reform
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  • Abstract: Under the federal structure of the United States government, states play a central role in interpreting and implementing national social policies. Understanding the processes that shape state-level social policy decisions is therefore important for understanding whether national commitments to low-income citizens are realized in practice. Within the political science literature, scholars have drawn attention to the way in which racial politics, problem severity, and economic and political pressure contribute to social policy choices across states. Yet few systematically evaluate the role of organizational actors in shaping state-level social policies. This represents a gap in the literature, as advocacy groups, religious organizations, and nonprofit service providers are active in lobbying on behalf of the poor at both national and state levels.

    This paper examines the relationship between organizational advocacy and state welfare policy choices following the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) to provide insight into the factors that shape how national policies are translated into action at the state level. Under the PRWORA, the national government ended its 60-year guarantee of cash assistance to needy families, and granted states increased discretion over many programmatic aspects of the welfare program. Using a unique dataset of organizational actors and state welfare policy choices, I analyze whether such actors shaped states’ decisions to further reduce the government’s commitment to low-income families on the one hand, or enact policies designed to provide additional supports to families on the other. Preliminary analyses point to the importance of actors in preventing the adoption of punitive policies, but not in facilitating the adoption of policies that assisted welfare recipients in their transition off of the welfare program. This suggests that organizational actors play an important role in shaping how national policies are interpreted across states, but also speaks to their limitations.

  Joshua Guetzkow (and Eric Schoon)

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  • Title: If you Build It, They Will Fill It: The Collateral Consequences of Prison Overcrowding Litigation
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  • Abstract: With more than two million people behind bars on any given day, the scale of imprisonment in the U.S. is unprecedented and unparalleled. Incarceration has become so widespread that it has significant effects on labor markets, inequality, wages and citizenship. Research attempting to understand this trend has pointed to the effects of law-and-order politics on incarceration rates. Historically, however, support for “getting tough on crime” has not necessarily translated into political support for expanding prison capacity—which is a necessary condition for mass incarceration. In other words, putting people in prison is easy; building them is not. In this paper, we examine the unintended effect of prison overcrowding litigation on incarceration using newly available information on prison civil rights litigation joined with cross-section time-series data from 49 states from 1972-1996. Our analysis indicates the following: (1) that prison overcrowding litigation is followed by sizeable increases in per capita correctional spending on capital outlays (capacity-building); and (2) that increases in capital outlay spending are followed by increases in the incarceration rate, although this effect is very small. In effect, prison overcrowding litigation has indirectly contributed to mass incarceration by boosting prison capacity.

  Alexandra Kalev (and Moran Levy)

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  • Title: How 'Diversity' Became a ‘Melting Pot’: The Translation of American Equal Opportunity Discourse into the Israeli Organizational Field
  • Abstract: The American history of affirmative action and equal opportunity at work evolved from the initial Civil Rights regulations into waves of corporate innovations spanning several decades. Throughout the period, enforcement has fluctuated and the rhetoric of “the business case for diversity” and “beyond diversity” suggested the law is no longer the prime mover toward equality. What have been the effects of antidiscrimination enforcement and organizational diversity innovations on the integration of women and minorities into good jobs? Has the diversity movement indeed moved beyond legal accountability? And are there ways to restructure work and reduce inequality outside the compliance or diversity discourses? The presentation will provide (some) answers to these questions and discuss the practical and scholarly lessons we have learned about how to effectively reduce gender and racial gaps in good jobs, based on unique longitudinal data on changes in organizational structures and employment over a period of 30 years in a national sample of more than 800 organizations.

  Kathryn Sikkink

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  • Title: Human rights prosecutions as mechanisms for translating human rights law into improved practices
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  • Abstract: Although it is now becoming apparent that some international human rights treaties have an impact on improving human rights practices in transitional or new democracies, we do not yet understand well the mechanisms through which these treaties exert their influence. In this article I synthesize research from two of my previous co-authored research papers about the linkage between treaty ratification and domestic human rights litigation, and the link between human rights litigation and improved practices. This in turn allows me to draw new conclusions about human rights prosecutions as mechanisms. While all human rights treaties potentially provide tools for litigation, some treaties have much more direct and explicit provisions for holding individuals criminally accountable for violations. In earlier research with Geoff Dancy, we have found that ratifications of treaties with explicit provisions for individual criminal responsibility (such as the Convention against Torture, and the Rome Statute of the ICC) are more likely to lead to domestic rights prosecutions than human rights treaties without such provisions. In earlier research with Hun Joon Kim, we have found that the use of human rights prosecutions is in turn more likely to be associated with improvements in basic integrity rights, including the right to life, freedom from torture, disappearance and political imprisonment. By connecting these two previous research findings, I suggest that human rights prosecutions are one of the main mechanism through which human rights law translates into improved practices. A caveat, however, is that not all human rights law is likely to have such effects, but only ratification of treaties with provisions for individual criminal accountability.

  Heather Schoenfeld

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  • Title: When “Rights” Collide: Equal Rights vs. Crime Victim’s Rights in the Prison Build Up
  • Abstract: This paper examines the period between 1992 and 1995 in Florida – a crucial time in the buildup of mass incarceration in the United States. As the hysteria over the war on drugs subsided and crime rates in many states declined, the early 1990’s marks a clear point where policymakers could have steered away from mass incarceration. In Florida, black state legislators led the effort to re-think incarceration policies by calling attention to the disproportionate impact of the War on Drugs and habitual offender laws on African Americans. However, their efforts faced resistance from a crime victim’s movement that defined their rights in opposition to the rights of criminal defendants. While the victim’s organization, named STOP (“Stop Releasing Prisoners”), received substantial support from law enforcement organizations, the civil rights community distanced themselves from proposals to reform sentencing and reduce prison populations. Buoyed by growing Republican strength in the state and Republican candidates’ need to distinguish themselves from state Democrats, crime victims’ rights prevailed. As a result, legislators passed a truth-in-sentencing law, requiring further investment in state prisons and missed the opportunity to address the staggering social costs of the War on Drugs for African Americans in the state. This case study of the collision of rights opens important avenues for inquiry about movement mobilization and counter-mobilization, how rights are negotiated in the political arena, and human rights in the era of mass incarceration.

  Faten Ghosn

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  • Title: "Conceptualizing & Analyzing Reparations"
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  • Abstract: Many scholars have maintained that there is a close link between reparations and post-conflict reconciliation and democratization. However, there is very little published academic work that deal specifically with reparation, and less work on the factors that influence the success of reparation programs. Most of the literature on reparations is concerned with whom should get compensated, the type of compensation and the amount of compensation. More recently, some scholars have also begun to look at how the reparation programs should be financed. However, not much (if any) has been done on the implementation process itself. It is important that we determine how reparations are administered. The logistics and procedures that are designed to implement the reparation program will have a profound effect on the success of the program for they will determine how the victims will receive their compensation. In this paper, it is argued that the factors identified in the reparation literature to affect the success of reparation programs are necessary but not sufficient determinants of success. A conceptual framework that builds on the existing literature is developed by first determining what do we mean by success, identifying the conditions for a successful program, and then, incorporating them into one framework that focuses on the political, economic and administrative dimensions that are essential to analyzing reparation program success. While every case will have unique characteristics and qualities these dimensions in general will have a similar impact across the cases.

  Leslye Amede Obiora

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  • Title: Realizing Progressive Realizations
  • Abstract: Article 2 of the International Covenanton Social, Economic and Cultural Rights imposes a continuing obligation on all parties to

    take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

    For some, the espoused principle of "progressive realisation" reinforces robust skepticism about human rights. However, emerging empirical data vindicate the growing effectiveness of this objective. With a view to illuminate the paradox of the state-centric thrust of the extant human rights regime, we will examine the role of society in fulfilling the onus on the state to implement social rights. Informed by case-studies from Bangladesh and Nigeria where the frailties of the state have invigorated society to harness resources which are not privileged by orthodox international norms and standards to redeem foundational ideals, our critique will analyze a convergence of evidence on the relevance of the rule of law as signified by legislation in the global quest to safe-guard human security.

  Susan Sturm

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  • Title: Reframing the Equality Agenda
  • Abstract: This paper offers a direction for the crucial project of reframing the equality agenda, one that links the normative goal to a theory of change. This framework situates inequality analysis within a broader umbrella of creating settings that build the capacity of relevant stakeholders to participate, succeed and thrive. The article will describe this affirmative framework, identify its features and potential, and consider its implications for public policy, law and advocacy. It is intended for institutional leaders, policy makers, activists, lawyers and researchers working in concrete arenas to increase equality while improving institutional effectiveness and the overall quality of life for those working in and served by those institutions.

  Shauhin Talesh

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  • Title: "How Organizational Fields Mediate the Meaning of Consumer Rights Through Competing Field Logics"
  • Abstract: During the 1970s and 1980s, all fifty states passed consumer warranty laws (“lemon laws”) that afforded consumers powerful rights and remedies in court. However, these rights are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations and others by states. Outcome data from state and private dispute resolution structures reveal that consumers tend to prevail more in state-run disputing structures than private structures. Although the lemon law field has routed consumers into these alternative disputing structures run by stakeholders, there has been less evaluation of how do private and public actors within the lemon law field understand the purpose and meaning of lemon laws? Do their conceptions cohere or conflict? Drawing from participant observation at lemon law conferences and in-depth and ethnographic interviews with field actors (manufacturers, third-party administrators hired by manufacturers, organizational judges, consumer advocates, regulators, panel-judges, etc.) across the country, my empirical data suggest, contrary to prior studies of organizational fields, that the lemon law field is simultaneously settled in some areas while contested in others. Moreover, although prior studies show how managerial values shape the way organizations go about complying with law, my empirical data reveal that there are conflicting field logics over the purpose and meaning of lemon laws and the goal of dispute resolution structures. Despite an overall consensus that consumer cases should be adjudicated in informal dispute resolution forums outside the courthouse, private actors view the purpose of lemon laws and goals of informal dispute resolution around adhering to business logics of efficiency, cost-effectiveness, allowing for managerial discretion and control, and customer retention. Conversely, public actors frame lemon laws in a consumer logic that focuses on rights, protection, transparency, and equal access. Thus, how stakeholders conceptualize what lemon laws mean in action may have implications for consumers’ access to justice and more broadly, the civil legal system.