PhD course University of Bergen, Faculty of Social Sciences. Effects of Lawfare:

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1 PhD course University of Bergen, Faculty of Social Sciences Effects of Lawfare: Courts and law as battlegrounds for social change Friday 14 - Saturday 22 August One of the most central developments over the past three decades is the accelerating juridification and judicialisation of societies and of politics. In all parts of the world and at all levels, from the global to the local, increasingly complex webs of legal norms and institutions regulate our societies and lives. At the same time courts and law have become increasingly important as arenas for political struggles. Constitutional reforms and international treaties aim to transform social dynamics from above, among other though new and stronger protection of citizens rights, while individuals and groups engage in legal mobilization from below to seek justice for their cause. In either case dense networks of international activists and experts are ready to engage with and aid local actors, creating a dense global network of actors, legal norms, and adjudicative institutions. In this context, it is urgent to better understand law as a political field. Does this turn to rights and law have a transformative potential? Does it provide institutional spaces for the voices of marginalized groups to be heard and tools that can provide political leverage? Or does it, rather demobilize and depoliticize struggles in ways that exacerbate unequal power- relations and marginalization dynamics? These are urgent issues on which there are deep disagreements in the literature. The course offers an introduction to the debates on the potential and limits of law as an instrument of social change, and opportunities to engage with some of the foremost scholar in the field, and international research projects currently seeking better answers to these questions. The course is a mixture of lectures specifically designed for the course, participation in research- project workshops and open round- tables that form part of the Bergen Exchanges on Law & Social Transformation. Students will also have an opportunity to present their own work. Students will receive 3 ECTS for participating in the course. Students who submit a publishable journal article (with an additional reading list of 500 pages which can be from the elective reading list) by 15 October 2015, are awarded an additional 7 ECTS. (MA level students will be accepted if space permits)

2 PhD course Effects of Lawfare: Courts and law as battlegrounds for social change FRIDAY 22 AUGUST Course leaders: Camila Gianella (Postdoctoral Fellow, Department of Comparative Politics); Bruce Wilson (Professor, University of Central Florida/CMI); Siri Gloppen (Professor, Department of Comparative Politics) Lecturers: Daniel M Brinks (University of Texas as Austin, USA) Jackie Dugard (University of the Witwatersrand, South Africa) Tom Keck, (Syracuse University) Malcolm Langford (CMI/University of Oslo) Adrian Jjuuko (HARAPF, Uganda) Rachel Sieder (CIESAS, Mexico) Liv Tønnessen (Chr. Michelsen Institute, CMI, Bergen) Ana Cristina Gonzalez (Colombia) Torunn Wimpelman (Chr. Michelsen Institute, CMI, Bergen) FRIDAY 22 AUGUST Venue: Just Faaland meeting room, CMI (3 rd floor), Jekteviksbakken 31, Bergen Lunch : every day at 13:00 in CMI canteen (5 th floor) unless otherwise noted FRIDAY 22 AUGUST Students can elect to earn 3 or 10 ECTS for this course credit option: All students who participate in at least 75% of the course and plenary sessions, but do not to submit a research paper for evaluation will earn 3 ECTS credits. 10 credit option: Students wishing to earn 10 ECTS credits from the course must have a proposal for a final research paper approved by the course leaders and then complete a page ( words) paper that is of publishable quality. This paper can be either a standalone paper or it can be part of a methodological or theoretical discussion within a doctoral dissertation (e.g. as part of the synopsis) The final research paper must be completed and submitted to the course leaders before the October 15, 2015 deadline. Any student whose paper is submitted before the initial deadline, but is not approved by the course leaders will have the opportunity to revise and resubmit the paper before a November 15 deadline. If they elect not to complete the revisions and resubmit their papers to the course leaders for reevaluation, will earn 3 credits.

3 PROGRAM Friday 14 Aug: Introducing Lawfare FRIDAY 22 AUGUST Lecturers Camila Gianella, Bruce Wilson (Course Leaders), Siri Gloppen (Director LawTransform Centre) 11:30-13:00 Arrival, registration, lunch 13:00-17:00 Opening session: Introducing Lawfare, course overview 17:30-19:30 INFORMAL SOCIAL EVENT Saturday 15. Aug: Legal mobilization and courts as battlegrounds for social change Lecturers Camila Gianella, Bruce Wilson, Siri Gloppen Dan Brinks; Jackie Dugard; Adrian Jjuuko; Ana Cristina Gonzalez 9:00-11:00 Social movement theory: legal mobilization and impact (Dan, Bruce & Camila) 11:15-13:00 Legal and political opportunity structures: idealism, realism debates (Bruce & Siri) 14:00-16:00 Public interest litigation strategies (Jackie, Adrian & Ana Cristina) 16:15-17:30 Ph.D Student Presentations Sunday 16. Aug: Judical behaviour and everyday life of courts Lecturers Camila Gianella, Bruce Wilson Daniel Brinks; Liv Tønnessen; Torunn Wimpelman 9:00-11:00 Political science approaches to judicial behavior: rational choice and institutionalism (Dan) 11:15-13:00 Islamic Lawfare & Women s Rights (Liv & Torunn) 14:00-16:00 Ph.D Student Presentations 16:00-23:00 NATURE WALK from Fløien to Munkebotten

4 SOCIAL EVENT at Siri s place, Sølvberget 22

5 ****************** Bergen Exchanges Week August ************** See program below (all the events are part of the course). Additional separate PhD events during the Bergen Exchanges week: Monday 17 August 14:00-15:30: Tuesday 18 August 17:00. Friday 21 August 16:30-18:00 Saturday 22 August 9:30 13:00 Morality Lawfare Tom Keck (Syracuse University) Screening of Divorce Iranian Style Legal anthropology ( everyday life of courts: power relations, narratives) Rachel Sieder (CIESAS, Mexico) Closing session: Ph.D Student Presentations; Sum- up and evaluation with course leaders Guidelines for student presentations: Each student will be asked to make a 10 minute conference presentation (with no more than 5 power point slides). This can be either on the topic of their research paper or on their dissertation topic. The presentation should concentrate on - the main idea of the paper/thesis - method and data - current status - a problem or puzzle that you would like feedback on. The presentations will be grouped into conference panels with a commentator for each paper and a panel chair. You will all be asked to serve as commentators and/or chairs in addition to making a presentation of your own.

6 WELCOME TO THE Bergen Exchanges on Law & Social Transformation August 2015 Venue: Bergen Resource Centre for International Development, Jektviksbakken 31, Bergen FRIDAY 22 AUGUST

7 Bergen Exchanges on Law & Social Transformation PROGRAM Venue: Bergen Resource Centre for International Development, Jektviksbakken 31, Bergen FRIDAY 22 AUGUST Monday 17 August 9:00 Opening of Bergen LawTransform Exchanges :00 13:00 Abortion rights lawfare in Latin America - differences & drivers Abortion is high politics in many parts of the world, not least in Latin America. Over the past decade, some countries have totally banned abortion or further restricted access, while others have liberalized their laws and policies. Activist on all sides have used courts in their struggles - and strategies and rhetoric seem to travel. Why do we see these dynamics? Who are the central actors and networks? And what are the consequences? This panel presents work in progress from a Centre on Law & Social Transformation (LawTransform) research project on Abortion Lawfare in Latin America. 16:00-18:30 Effects of lawfare How can we know whether and when legal mobilization is effective and what the effects of court decisions are? These questions are at the heart of socio- legal studies, and while advances have been made in recent years, both conceptually and methodologically, ample challenges remain. The first of these two roundtables discusses quantitative and qualitative research strategies and methods for measuring compliance with court decisions and impact of court orders, partly based on a forthcoming book. The second roundtable zooms in on the challenges related to studying effects of legal mobilization in the field of sexual and reproductive rights. 16:00 17:10 Measuring compliance & and impact of court orders 17:20 18:30 Studying effects of sexual and reproductive rights lawfare 19:00 Reception in Knut Fægris Hus, Villaveien 9 (please rspv by 12 August to yngvild.torvik@cmi.no )

8 Tuesday 18 August 8:30 10:00 Backlash how to conceptualize and measure it? Sometimes efforts to advance rights have the opposite results. Adverse political reactions against legal mobilization are often described as backlash. This is frequently observed in morally charged areas such as sexual and reproductive rights, politically charged areas such as race relations and migration, or questions of sovereignty in the case of international courts. But to study and establish backlash effects raises complicated questions both at conceptual and methodological level. How can we uncover the causal mechanisms at play and systematically measure effects? 10:30 13:00 Global LGBTIQ equality battles The past decade has seen increasing political contestation over sexual orientation and gender identity in all parts of the world, with rights and courts both at national and international level at the center of the battles. In Western Europe and North America, contemporary struggles concern mainly marriage equality and discrimination, in many countries in Africa and the Middle East, the criminalization of homosexuality and stricter penalties for same sex intimacy are at the heart of the political contest, while a more varied spectrum of issues are currently contested in Eastern Europe and Eurasia. This panel presents work in progress from two research projects on Sexual & Reproductive Rights Lawfare: Global Battles 14:00 15:30 Effects of constitutional change Constitutions are at the heart of intense political struggles from the French Revolution to the Arab Spring, demands for constitutional change were at the core. Also in stable democracies, such as Norway, constitutions are rewritten to provide a more suitable social contact and better basis for the life and development of the society. But how much of a difference do constitutions really make? This panel presents and discusses two new ambitious research projects that seek to find out. 16:00 17:00 Constructing Databases for Mixed Method Research Mixed methods research, particularly the systematic integration of qualitative and quantitative analysis, presents opportunities for improving our understanding of the effects of law and legal mobilization. Databases are increasingly constructed and improved to facilitative more rigorous quantitative analysis. However, qualitative researchers often feel that the focus of quantitative research is irrelevant to what they seek to understand. This roundtable discusses challenges of integrating qualitative and quantitative research and seeks to advance the understanding of how databases can be constructed to better support mixed methods research.

9 Wednesday 19 August: 9:00 11:15 Implementing health rights - dilemmas, constraints & opportunities The right to health enshrined in international human rights documents and many domestic constitutions in principle entitles every individual to the highest attainable standard of physical and mental health. But what does this mean in practice? How can it be implemented when demands for health services exceeds ability to pay and all countries, including Norway, discuss ways to limit health care spending? Do health rights, by entitling everyone to everything, undermine attempts to fairly prioritize resources for health? Or can health rights be implemented in ways that contribute towards fairer health policies. Judges and researchers from different countries discuss opportunities for improving health policies and outcomes though the use of rights, and dilemmas and constraints rights- based- approaches face in contexts faced with different levels of resource scarcity. 11:30 13:00 Lawfare for livelihood and formalization The urban poor often live in conditions where poverty is reinforced by conditions of informality and criminalization. Slum- dwellers, street vendors, waste- collectors and sex workers have sought to use the courts to improve their conditions and gain recognition for their right to livelihood, food and housing, and formalization of the means of achieving it. But even when they have succeeded in court, change on the ground is often lacking. This round- table discusses under which conditions poor and informalized people s lawfare for livelihood can contribute to social change. 14:00-16:00 Conceptualizing, studying & measuring health effects of criminal law Criminal law is used to deter and punish unwanted behaviour. This includes unwanted sexual behaviour ranging from rape, incest, sexual violence and transmission of HIV via various forms of irregular consensual sexual relations (outside marriage, same- sex sexual behaviour, sex work) to provision of/access to sexual and reproductive health information and services, such as abortion. Criminalization of sexual and reproductive actions and services has intended as well as unintended consequences including for mental health and for the provision and uptake of health services. But how can health consequences of (de)criminalization best be studied? In this roundtable researchers from the law faculty in Bergen studying effects of criminal law meets researchers about to embark on a new LawTransform project investigating health effects of (de)criminalization of abortion and homosexuality in Africa.

10 16:30 18:00 ANNUAL LECTURE ON LAW & SOCIAL TRANSFORMATION Gerald Rosenberg: Hollow Hope Revisited: on the impact of marriage equality litigation in the USA Gerald Rosenberg s 1991 book The Hollow Hope, one of the most cited works in socio- legal studies, forcefully argued that litigation is unlikely to bring significant social change. A quarter of a century later, it remains the standard reference, placing the onus of proof on those who see lawfare as a path to social transformation to present convincing evidence. Many would argue that the recent developments regarding same sex marriage in the United States where litigation has been central - challenges Rosenberg s view. In this lecture he gives his analysis. Following the lecture there will be comments from an expert panel before the floor is opened for general debate. VENUE: AUDITORIUM 4 at the FACULTY OF LAW, UNIVERSITY OF BERGEN 18:30 Reception (please rspv by 72 August to yngvild.torvik@cmi.no )

11 Thursday 20 August 8:30 9:30 After Violence: Effects of Transitional Justice Mechanisms This session discusses the findings of a new book edited by Elin Skaar, Camila Gianella and Trine Eide examining the effects of transitional justice on the development of peace and democracy. Combining case studies and comparative qualitative analysis, it tracks the experiences of Uruguay, Peru, Rwanda and Angola in dealing with their history of violence and repression through a combination of four different transitional justice mechanisms: criminal trials, truth commission, reparations, and amnesties. 10:00 11:15 Islamist Lawfare - Women and Sexual Morality. Islamists typically make family law and gender- related criminal law cornerstones of their political projects. Key struggles include divorce, inheritance and custody for children; honor killings, domestic violence, underage marriage, adultery and rape. This roundtable discusses the significance of lawfare for Islamist movements and for the resistance towards them, based on ongoing work in Afghanistan and Sudan. 11:30 13:00 Studying counter- progressive actors Research into social movements and legal mobilization has tended to focus on progressive movements. To study the other side - actors who are ideologically far removed, and actively working against a cause normatively supported by the researcher involve particular practical, methodological and ethical challenges. This roundtable focuses on how best to study the dark side or counter- progressive actors. 14:00 15:30 Welfare- state lawfare - in the best interest of the child Rights of children are especially protected in international law as well as domestic legislation in many countries, obliging the state to act in the best interest of the child - including taking over custody in situations of parental neglect or maltreatment. These are highly sensitive and controversial cases involving great risks of erring either way, and where in particular cultural minorities often feel targeted. This roundtable discusses how lawfare in the best interest of the child, and the treatment of these cases vary across countries, and what the implications are. 16:00 17:30 Experimental Studies of Judicial Behaviour and Effects of lawfare In the past decade experimental research has becoming increasingly influential in the social sciences drawing inspiration amongst other from psychology, medicine, behavioral economics and survey research. Also in the study of the dynamics and effects of law, legal mobilization and judicial behavior, experimental methods can potentially allow for better understanding of the causal mechanisms at play such as whether and when legislation and judicial decisions contribute to attitudinal change and when they cause a backlash. This aim of this roundtable is to discuss how experimental methods may contribute towards on- going and planned research projects.

12 Friday 21 August 9:00 10:30 Land rights and socio- environmental conflict in India This panel presents work in progress from the ongoing research project on Land Rights and Inclusive Sustainable Development in India s federal system. The project explores the role of land rights in the context of the current development Indian development agenda, analyzing how land rights are being transformed and how different forms of regulations play out in various Indian states. Particular focus is on the land rights of vulnerable groups such as adivasis (indigenous communities), that in principle have special protection (also on ecological grounds), both where the rights often prove unable to protect communities from displacement and the environment from degradation. 11:00-13:00 Socio- environmental lawfare global perspectives There is thus a growing need to understand the role that law does and potentially could play as an arena for regulating socio- environmental conflicts. Lawfare over land and water resources by the state using its eminent domain privileges to appropriate land for own development or facilitating private industry as well as by affected groups, is on the increase on all continents. Lawfare is also used in attempts to force governments to regulate carbon emissions and facilitate adaptation in the face of climate change. Several ongoing and proposed LawTransform projects engages these dynamics, and this panel aims at exploring the grounds for a new broad comparative project in this field 14:00 15:15 Judicial independence, judicial networks and & informal influence Studies of judicial independence usually focus on the formal aspects such as appointment and dismissal procedures and conditions of tenure, or on cultural traditions and professional norms. Less attention has been paid to the informal source that may diminish or strengthen judicial independence, including national and transnational judicial networks. This roundtable brings together academics and judges over a discussion about the significance of judicial networks and the informal sources of and threats to - judicial independence.

13 READINGS Brinks, Daniel M, and Varun Gauri. "The law s majestic equality? The distributive impact of judicializing social and economic rights." Perspectives on Politics (2014): Dyevre, Arthur (2010) Unifying the Field of Comparative Judicial Politics: Towards a General Theory of Judicial Behaviour, European Political Science Review 2, Epp, Charles R. The rights revolution: Lawyers, activists, and supreme courts in comparative perspective. Chicago: University of Chicago Press, 1998 (Chapters 1,2,11). García, Helena Alviar, Karl Klare, and Lucy A. Williams, eds. Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, (295 pp) Greenhouse, Linda, and Reva B. Siegel. "Before (and After) Roe v. Wade: New Questions About Backlash." The Yale Law Journal (2011): Haglund, LaDawn, and Robin Stryker, eds. Closing the Rights Gap: From Human Rights to Social Transformation. Univ of California Press, Chapter 4: Varun Gauri and Daniel Brinks: Impacts of Legal Strategies for Claiming Economic and Social Rights ; Ch. 13. Siri Gloppen Studying Courts in Context Keck, Thomas M. "Beyond backlash: Assessing the impact of judicial decisions on LGBT rights." Law & Society Review 43.1 (2009): Langford, Malcolm, Jacke Dugard et al. Concluding Perspectives in, Langford et al eds. Socio- economic Rights in South Africa: Symbols Or Substance?. Cambridge University Press, Merry, Sally Engle. "Anthropology and Law." In The SAGE Handbook of Social Anthropology (2012): 105. Mir- Hosseini, Ziba. "Criminalizing sexuality: zina laws as violence against women in Muslim contexts." SUR- Int'l J. on Hum Rts. 15 (2011): 7. Motta, Sara C., and Alf Gunvald Nilsen, Social Movements and/in the Postcolonial: Dispossession, Development and Resistance in the Global South in Motta & Nilsen, eds. Social movements in the global south: Dispossession, development and resistance. London: Palgrave Macmillan, (pp1-34) Narrain, Arvind. "Brazil, India, South Africa: Transformative Constitutions and Their Role in LGBT Struggles." SUR- International Journal On Human Rights (2014). Price, Richard S., and Thomas M. Keck. "Movement Litigation and Unilateral Disarmament: Abortion and the Right to Die." Law & Social Inquiry (2015). Rosenberg, Gerald N. "Courting Disaster: Looking for Change in All the Wrong Places." Drake L. Rev. 54 (2005): 795. Rubio- Marín, Ruth, and Wen- Chen Chang. "Sites of constitutional struggle for women s equality." Routledge Handbook of Constitutional Law (2013): 301.

14 Sieder, Rachel, and John Andrew McNeish, Introduction in Sieder and McNeish, eds. Gender, Justice and Legal Pluralities: Latin American and African Perspectives. Routledge, Skivenes, Marit, et al., eds. Child Welfare Systems and Migrant Children: A Cross Country Study of Policies and Practice. Oxford University Press, (Chapters 1, 3 and 13) Wilson, Bruce M., and Juan Carlos Rodríguez Cordero. "Legal Opportunity Structures and Social Movements The Effects of Institutional Change on Costa Rican Politics." Comparative Political Studies 39.3 (2006): ******** Elective Readings ********* Ahmed, Aziza, et al. "Criminalising consensual sexual behaviour in the context of HIV: consequences, evidence, and leadership." Global public health 6.sup3 (2011): S357- S369. Bergallo, Paola. "Courts and the Right to Health: Achieving Fairness Despite'Routinization'in Individual Coverage Cases?." Yamin, Alicia Ely y Siri Gloppen (comps.), Litigating Health Rights: Can Courts Bring More Justice to Health (2011). Bishin, Benjamin G., et al. "Opinion Backlash and Public Attitudes: Are Political Advances in Gay Rights Counterproductive?." American Journal of Political Science (2015). Bob, Clifford. The global right wing and the clash of world politics. Cambridge University Press, (Chapters 1, 3., 4 and 7) Narrain, Arvind. "Rethinking Citizenship A Queer Journey." Indian Journal of Gender Studies 14.1 (2007): Ngwena, Charles G. "Conscientious Objection to Abortion and Accommodating Women's Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective." Journal of African Law (2014): Ngwena, Charles &Ebenezer Durojaye Strengthening the protection of sexual and reproductive health and rights in the African region through human rights: An introduction in Charles Ngwena &Ebenezer Durojaye (eds) Strengthening the protection of sexual and reproductive health and rights in the African region through human rights. Pretoria: PULP (2014) Chapter 1. Brinks, Daniel M. "The Judiciary and the Rule of Law in Latin America." Routledge Handbook of Latin American Politics (2014): 61. Brinks, Daniel M., and William Forbath. "Social and Economic Rights in Latin America: Constitutional Courts and the Prospects for Pro- Poor Interventions." Tex. L. Rev. 89 (2010): 1943.

15 Dugard, Jackie. "Civic action and legal mobilisation: the Phiri water meters case." Mobilising Social Justice in South Africa: Perspectives from Researchers and Practitioners (2010): Epp, Charles R. "The legal complex in the struggle to control police brutality in India." InFates of Political Liberalism in the British Post- colony, ed. Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley (2012): Epp, Charles R., Steven Maynard- Moody, and Donald P. Haider- Markel. Pulled Over: How Police Stops Define Race and Citizenship. University of Chicago Press, Mir- Hosseini, Ziba. "Muslim women s quest for equality: Between Islamic law and feminism." Critical inquiry 32.4 (2006): Keck, Thomas M. Judicial Politics in Polarized Times. University of Chicago Press, Tønnessen, Liv, and Samia al- Nagar. "The women's quota in conflict ridden Sudan: Ideological battles for and against gender equality." Women's Studies International Forum. Vol. 41. Pergamon, Vanberg, Georg. "Constitutional Courts in Comparative Perspective: A Theoretical Assessment." Annual Review of Political Science (2015). Yamin, A., and Siri Gloppen. "Litigating Health Rights." Can Courts Bring More Justice to Health: Harvard (2011).