Culture And The Court: The Judiciary As An Arbiter Of Cultural Disputes In The USA

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JournalCultural Studies
DateAccepted/In press - 2014
DateE-pub ahead of print (current) - 7 Mar 2014
Issue number5-6
Volume28
Pages (from-to)1078-1102
Early online date7/03/14
Original languageEnglish

Abstract

The law has enormous cultural significance; it creates many of the roles and statuses that structure people's lives, represents a society's values, establishes rights of cultural expression, and places restrictions on these rights. The cultural dimensions of the law are especially important for marginalized groups, as the law can act as a barrier to political and social inclusion or offer protection from discrimination. This essay argues that cultural studies of the law have overlooked the significance of the different sources of law. In the USA, culturally significant laws and legal interpretations can come from the judiciary or the legislature. Laws that are recognized by the judiciary or established by it through common law have a much different cultural significance from laws that are passed by legislatures. Judicial decisions are more symbolically meaningful, but may have a more limited power to produce deep cultural changes. Some major judicial decisions on minority rights, such as that in Brown vs. Board of Education, have even incited backlash. Legislative decisions tend to be seen as more legitimate and more reflective of the popular will, yet it may be more difficult for minority groups with limited resources to act through the legislature. Moreover, the legislature can also be used to by larger groups to block minority groups' attempts to gain rights. This essay illustrates the differences between these two sources of law and their comparative power to influence culture with key examples drawn from the civil rights movement and the gay rights movement.

    Research areas

  • activism, judiciary, law, legislature, minorities, rights

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