2011 Conference Program (PDF) - Syracuse University College of Law

2.8 State Making
Jeffrey Thomas
The Cultural Context for Rule of Law
This paper will review the literature on the relationship between culture and rule of law,
and will begin to develop a framework for assessing the extent to which a country's
culture promotes or advances the rule of law. It is hoped that cultural psychology will
provide useful measures that can be analyzed, grouped and adapted to obtain some
preliminary assessments that can be used to suggest possible scales or techniques to be
explored in future research.
Howard Pashman Making Revolution Work: Law and Politics in New York, 1776-1783
The central legal challenge of the American Revolution proved to be ending popular
violence and building a stable state in its place. As royal authority dissolved, people took
law into their own hands and enforced rough justice through physical assaults, public
humiliation, and intimidation. In other rebellions, such behavior has triggered a bloody
cycle of anger and revenge. And yet that bloodletting did not occur in the American
Revolution. Americans contained popular aggression even at a time when the legal
infrastructure for maintaining order had collapsed. This achievement invites us to
reconsider the character of the Revolution as an orderly transition from colonial status to
independence. Relying on legal records that no historian has used before, I analyze how a
group of Americans made revolution work, how over seven years of war they restrained a
popular uprising and redirected its unruly energy through the legal institutions of a
fledgling state.
William Mercer
Popular Sovereignty and Positivist Rights
In the early American republic, rights were perceived as emanating from natural law, the
common law tradition, positive law pronouncements of the federal and state
constitutions, or an inchoate blend of sources. While a debate occurred regarding where
rights derived their authority, this paper explores a larger question: why was this debate
taking place During this era, many people took extra-legal action to redress grievances,
settle private scores, enforce community norms, or to abate nuisances instead of relying
on the courts or governmental officials. At a fundamental level, these actions are
evidence of a struggle over the proper role of the people in a system of government
predicated on popular sovereignty. This paper posits that efforts to limit the sovereign
powers of the people necessitated a re-conceptualization of rights away from a blend of
foundations and toward a view of rights as derived solely from positive law enactments.
2.9 Queer Sociolegal Histories and Narratives
Craig Scott
Legal Scholars' Rhetoric of Rights and the Grassroots: California Gay Activism before
1975
In 1975 the California legislature repealed its sodomy laws, an early legislative victory
which helped make California an important location for gay rights. Yet, before 1975, the
gay rights movement in California was small and poorly organized. With few resources, a
small number of activists began to translate ideas advanced by legal scholars to argue for
change, using the rhetoric of rights to enlist support from a wide-range of organizations.
This paper will trace how the rhetoric of rights for gays and lesbians -- both within gay
writings and law journals -- were used by activists to push for legislative action, using the
work of legal scholars and the language of court decisions like Griswold v. Connecticut
to craft a political strategy. The paper challenges current historiography to weigh the
influence of both grassroots activists and elite legal scholars in understanding how gay
rights legislation came about.
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