LOCATING LAW. Race/Class/Gender/Sexuality Connections 2nd Edition

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1 Uni Gottingen A LOCATING LAW Race/Class/Gender/Sexuality Connections 2nd Edition edited by Elizabeth Comack with Karen Busby Dorothy E. Chunn Lisa Marie Jakubowski Kirsten Kramap Patricia Monture Janet E. Mosher David Sealy Laureen Snider Eric Tucker Fernwood Publishing Halifax

2 CONTENTS Contributors 7 Acknowledgements 9 Introduction 11 THEORETICAL APPROACHES IN THE SOCIOLOGY OF LAW Theoretical Excursions Elizabeth Comack 18 The Official Version of Law 20 Traditional Approaches in the Sociology of Law 24 The Functionalist Approach 24 The Liberal-Pluralist Approach 28 The Marxist Approach 34 Instrumental Marxism 37 Structural Marxism 38 The Feminist Frameworks 42 Conservatism 42 Liberal Feminism 43 Radical Feminism 46 Socialist Feminism 48 Recent Challenges for the Sociology of Law 51 Racialized Croups and the Law 52 The Postmodern Challenge 60 Towards an Understanding of the Law-Society Relation 66 Notes 67 RACISM AND THE LAW / 68 STANDING AGAINST CANADIAN LAW Naming Omissions of Race, Culture, and Gender Patricia Monture 73 Considering Change: Aboriginal People and the Canadian Criminal Justice System 77 Understanding Oppression and Resistance 79 Resisting the Indian Act 85 Closing this Circle 89 Notes 90

3 "MANAGING" CANADIAN IMMIGRATION Racism, Ethnic Selectivity, and the Law Lisa Marie Jakubowski 94 The Economic and Political Context 95 Nation-Building and the "White Canada" Policy 96 Section 38(C): Canadian Xenophobia Enshrined in Law 100 Abandoning the "White Canada" Policy 104 "Ambiguity" and the Politics of Law 108 Racialization and Refugees: A Question of "Balance" or a Return to Earlier Times? 110 "Managing " Refugees and the "Safe Country " Provision 113 Security, Control, and the "Illegal" Immigrant 116 Bill C-ll: The Immigration and Refugee Protection Act (IRPA) 117 The Post-9/11 World: Protecting the Nation 120 Notes 121 CULTURAL DIFFERENCE AND CRIMINAL SENTENCING Critical Reflections on R. v. Gladue and R. v. Hamilton Kirsten Kramar and David Sealy 123 The Issue of Difference Based on Race and Culture 125 Section 718.2(e) of the Canadian Criminal Code and Its Interpretation in Gladue 125 Drug Smuggling: Systemic Racism as Mitigation in R. v. Hamilton 131 The Logic of Gladue and Hamilton: Systemic Discrimination and Remedial Sentencing 135 A Genealogy of Racialized Justice Discourses 137 Restorative Justice and the Need for Scrutiny 143 Notes 144 CLASS INTERESTS AND THE LAW / 146 LOCATING LABOUR LAW The Regulation of Occupational Health and Safety Eric Tucker 152 Three Schools of Thought 154 Locating Occupational Health and Safety in Capitalism 159 The First Industrial Revolution 159 The Employment of Women and Children 160 The Legal Presumption of Voluntary Risk 161 Workers Organize and the State Responds 162 The Factories Act of The Fate of the Factories Act 164

4 The Second Industrial Revolution 166 Workers' Compensation Law 167 Collective Bargaining: The Postwar Accord 167 Renewed Activism and the Remaking of Regulation 168 Competing Perspectives 169 Conflicts Over Implementation 170 Government under Pressure 171 The Cold Climate of Neo-Liberalism 173 Restructuring of the Workplace 173 Employers on the Offensive 174 Space for Resistance 175 Assessing the Theoretical Frameworks 176 Notes 179 RELOCATING LAW Making Corporate Crime Disappear Laureen Snider 180 The Disappearance of Corporate Crime 183 Why Does it Matter? 195 Greater Corporate Responsibility or a Step Backwards? 203 Notes 205 THE CONSTRUCTION OF "WELFARE FRAUD" AND THE WIELDING OF THE STATE'S IRON FIST Janet E Mosher 207 From Social Welfare to Neo-Liberalism 209 Welfare Reform: Making the "Undeserving Poor" Responsible 210 Implications for Single Mothers 214 Welfare Fraud and Presumed Criminality: Frauds, Cheats, and Liars? 216 Comprehending the Complexity of the Welfare Regulation System "Living under a Microscope": Invasive Strategies for Detecting Welfare "Fraudsters" 219 Eligibility Review Officers 219 Verification Procedures 221 The Welfare Snitch Line 222 Harsh Penalties for Conviction: The Lifetime Ban and Incarceration The Kimberly Rogers Case 224 Employment Standards 226 Exacerbating the Problems of the Marginalized 228 Notes 229

5 GENDER, SEXUALITY, AND THE LAW / 230 FEMINISM, LAW, AND "THE FAMILY" Assessing the Reform Legacy Dorothy E. Chunn 234 First-Wave Reforms: Maternal Feminism 235 Contradictory and Differential Effects of First- Wave Reforms 239 Second-Wave Reforms: Liberal Feminism 242 Contradictory and Differential Effects of Second- Wave Reforms 246 Prospects for "Reform" in the Neo-Liberal State 254 Notes 257 "NOT A VICTIM UNTIL A CONVICTION IS ENTERED" Sexual Violence Prosecutions and Legal "Truth" Karen Busby 258 Foundational Rules of Criminal Law 260 /. Presumption of Innocence Proof Beyond a Reasonable Doubt..' Right to Silence '. 262 The Role of the Crown Attorney 263 The Specific Elements of Sexual Offences Criminal Code Amendments Criminal Code Amendments Criminal Code Amendments 266 General Evidence Rules 269 Reliability 270 Relevance: Prior Convictions 270 Relevance: Similar Fact 271 Special Evidence Rules for Sexual Violence Cases 272 Sexual History Evidence 274 Access to Personal Records 278 The Aftermath 282 Notes 284 VICTIMS OF JUSTICE Homophobia, Ageism, and Whorephobia Kirsten Kramar 285 Project Guardian 287 Historical Discrimination of Persons of Queer Sexual Identity 294 The Trials of London: The Social Construction of Pedophile Rings and Child Victims 297 Carry on Panicking 301 Reframing a Social Problem 304 Notes 305 References 308

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