Week Nine, Law and Society

Assignments for Week 9:

I.  Read Chapter 8 in your Samaha textbook and read Lecture 8 below for the quiz this week.

II.  Cases in class this week:

            Chapter 8, State v. Damms

            Chapter 8, State v. King

            Chapter 8, Mims v. U.S.

            Chapter 8, La Barron v. State

Lecture 8, Law and Social Change


1.  Law is a source of continuity.  We want law to reflect basic values and be a source of stability, and to withstand the winds of change and the passions of the moment.

2.   Law is also a force for social change.  We want law to evolve with the transformations in social attitudes and societal needs, and to be flexible in new circumstances.  We want law to lead society in the direction of emerging goals and aspirations. 

3.  Legal change may take a liberal, progressive direction—it may also take a conservative, reactionary direction.  Legal change is a function of power.  Too often, the powerful and privileged have used their influence on law to protect or extend their own interests.

4.  Law is both an object of social change and an instrument of social change (a dependent variable and an independent variable).  Those welcoming social change will actively campaign for legal reforms that could speed up the pace of the desired social change.  An example would be the civil rights laws of the 1960s that reflected changing attitudes within society, but were also intended to promote racial integration and the demise of racial prejudice.  Welfare law reforms in the 1990s reflected changing social attitudes about the role of women in raising children.  In the 1950s, it was believed that if it was good for middle class and above women to stay at home with their children, then poor women should stay home with children as well.  As more middle class and above women went outside the home to work, it was believed that poor women should go outside the home to work as well. 

Law as an Object of Social Change

1.  The institution of law tends to become increasingly formal and complex as a society evolves and expands.  Some factors that contribute to the changes in law are the increasing size of the population and changes in the economy.  People tend to shift from small rural communities to urban centers, and new laws are needed for the conditions of city life.  Laws are needed to allow people to live together in close proximity without constant conflicts, and legal institutions are needed that can process large numbers of defendants and litigants at the same time.  The emergence of a modern capitalist system with increasing numbers of large, complex organizations causes law to adapt to the realities of these conditions.

2.  The introduction of more complex forms of technology produces a need for new laws.  The introduction of the automobile led to many new traffic laws, while the introduction of computers and the rapid spread of the Internet generated a demand for laws to respond to the new conditions created.  The increasing capacity of sophisticated medical technology to keep people “alive’ indefinitely is another example where technology generates a need for new laws. 

3.  One way to organize thinking about social change is to look at human ecology which uses the POET model, an acronym for population, organization, environment, and technology.  As these things change, law changes as well.  Additionally, as law changes, we see changes in population, organization, environment, and technology.  These four elements also interact with each other.

Resistance to Reform

1.  Many of these sources of resistance include social, economic, cultural, and psychological factors.  In social terms, the upper class tends to resist legal reform that might compromise its advantages.  There are always specific parties who have a stake in maintaining the status quo, and if enough is at stake, the parties whose stakes are threatened will form an organized opposition.  Most frequently, the opposition is based on economic interests. 

2.  The National Rifle Association (NRA) has a long history of successfully organizing opposition to gun control laws.  Corporations oppose reforms that cut into profits, such as new taxes or setting of new liability, safety, or antipollution standards.  Since wealthy corporations have large economic resources for advertising campaigns against the reforms, their efforts are often successful.

Law as an Instrument of Social Change

1.  New laws are introduced with the aim of improving society in some way.  It is widely believed that major U.S. Supreme Court decisions and major legislative reforms lead to social change.  The Warren Court of the 1050s and 1060s made many landmark decisions regarded as inspiring significant social and political improvements.  It has been argued that litigation and court decisions made a significant difference in addressing pay equity issues.  Women and minorities, through much of the twentieth century, were systematically paid less than white males for the same job.  In the final decades of the century, these inequities began to be challenged in litigation at least partially inspired by the Feminist Movement.  More recently, the pay of women has again decreased, and this is at least in part due to a more conservative, male-dominated Supreme Court.

2.  In many respects, it has had limited effect on social change.  The examples of Brown v. Board of Education (1954) and Row v. Wade (1973) were cases in which the hopes of many are never realized with the realities following the court cases.  Despite the obliteration of legal segregation and discrimination following the Brown decision, by some measures de facto segregation (white flight and other factors) actually increased in subsequent decades, and racial division sometimes intensified. 

Legal Reforms and Their Impact

1.  Does law succeed in diminishing inequality, or does it create the appearance of doing so?  In the case of labor law, employers have had a tremendous advantage over employees, and the advantage was supported by law.  In the early part of the nineteenth century, most working people did not have a right to vote.  Beginning in the latter part of the nineteenth century, labor/management conflict produced considerable disorder and sometimes erupted into violence.  Following World War I, and especially because of the onset of the Great Depression in the 1930s, the U.S. Supreme Court and the U.S. Congress made decisions or laws more favorable to labor.  They extended to workers the right to organize and to strike without outside interference.  However, changes in the American economy during the final decades of the twentieth century led to a decline in the proportion of American workers represented by unions, with a proportional decline in union power.  Today, the balance of power has shifted toward the employers once again.

2.  In the case of welfare law, throughout most of history, the poor and the disabled either have been ignored by the law or have been persecuted in the name of the law.  To conservatives, bloated welfare programs represent a misguided, and counterproductive, liberal philosophy that does more harm than good.  To moderates and liberals, welfare programs are an expression of compassion and a contemporary form of civic obligation; ideally, they enable individuals and families to rise out of poverty.  In a progressive interpretation, welfare is a device used by those in power to control the poor, and welfare is extended more broadly in times of unrest to quell an uprising, while it is reduced or withdrawn in more stable times.   

3.  The concept of hate crime or bias crime was introduced in about 1980, as one more response to a long and ugly history of racism and intolerance.  Hate or bias crime laws imposed stronger punishments on offenders who committed crimes motivated by hate or bias.  The argument in favor of the law is that crimes motivated by hate injure the immediate victim, but they also injure the society at large. 

4.  Throughout the 1970s, into the early 1980s, feminists campaigned for the adoption of an Equal Rights Amendment (ERA) to the U.S. Constitution, which would have prohibited as unconstitutional any form of discrimination against individuals for reasons of gender.  This effort failed in 1982.  Despite the removal of many specific forms of gender bias from law, the legal status of women by the end of the twentieth century was declared still unequal with many forms of discrimination still in effect.  Traditional sexist attitudes have proved more enduring than formal laws.  Many unresolved issues remain, regarding pregnancy discrimination, custody, post-divorce property settlement, unequal compensation and promotion policies, comparable worth, taxation (especially as applied to benefits), and overall treatment of physically and sexually abused women.

Basic Trends in Law and Social Change in America

1.  For every trend, there is a countertrend, which makes it difficult to make broad generalizations about the nature of legal change.  It is indisputable that Americans have become more reliant upon the law—or at least more secular, formal law—as a response to the increasing size, heterogeneity, and complexity of American society.  A countertrend of turning to alternative forms of dispute resolution has also been a characteristic of the recent era in American law. 

2.  The legal system has experienced a general move toward more regulation of commercial and professional activities with the formation of various regulatory agencies, such as the Interstate Commerce Commission (ICC), The Securities and Exchange Commission (SEC), The Environmental Protection Agency (EPA).  In a countertrend, these agencies have been attacked as restrictive on businesses.  The tension between more regulation and less regulation is likely to persist in a society that demands clean air while corporations resist reducing profits in the interest of the environment.

3.  Due process rights have generally expanded in American law—a function of a more inclusive and more confident society.  The Warren Court of the 1960s handed down a series of decisions expanding the due process rights of defendants in criminal cases.  Currently, we have a countertrend.  When people perceive that crime is rising, there is a call for the curtailment of rights of those accused of crimes.  Over the long term, alternating cycles of crime control and due process have occurred, although the crime control cycle has seemed to be entrenched in the more recent era.  Recent research has shown that the perception of rising crime rates (when street crime has actually been decreasing) has been created by those who want to keep the emphasis off of white collar crime, which has been increasing dramatically in recent years.

The Future of Law

1.  The gaps between the haves and the have-nots on all levels (between countries, between social groups, between individuals) will endure as one of the major challenges for law in the twenty-first century.  The gaps widened toward the end of the twentieth century, which provides support for Marx’s celebrated prediction that, under capitalism, the rich would get richer and the poor would get poorer.  To the extent that law is viewed as complicit in maintaining or perpetuating social inequality, it will be the target of ongoing hostility and challenge from the disadvantaged and their allies.

2.  Conversely, law may continue to be viewed as a potentially powerful instrument for promoting greater social equality and the fairer distribution of scarce resources.  On the future of law, the only thing we can assert is that law will change as we move through the twenty-first century.    

© Karen Donahue 2017