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2 Greenhouse, Carol J., “Courting Difference: Issues of Interpretation and Comparison in the Study of Legal Ideologies,” 22 Law & Soc'y Rev. 687 (1988); Alan Hunt, “The Ideology of Law: Advances in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 11 (1985).Google Scholar

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7 Hunt, Alan, “The Critique of Law: What Is ‘Critical About Critical Legal Theory?” in Fitzpatrick, P. & Hunt, A., eds., Critical Legal Studies 11 (Oxford: Basil Blackwell, 1987) (“Hunt, ‘The Critique’“). This ambivalence is also apparent in the attempt to make sense out of the reemergence of “alternative dispute resolution” and other kinds of informalism. Sarat, 21 Law & Soc'y Rev. at 695; Sally Merry, “Everyday Understanding of Law in Working Class America,” 13 Am. Ethnologist 253 (1986); Peter Fitzpatrick, “The Rise and Rise of Informalism,” in Roger Matthews, ed., Practising Theory (London: Sage Publications, 1988) (“Fitzpatrick, Rise of Infomahslism”); Susan Silbey & Sally Merry, “Mediator Settlement Strategies,” 8 Law & Pol'y 7 (1986). This work has pointed out how such informal processes serve the state in ways that are more subtle and thus more insidious than formal law. Richard Hofrichter, Neighborhood Justice and the State (Westport, Conn.: Greenwood, 1987). Scholarship from this perspective has stressed formal law's role in maintaining state power and at the same time, as Fitzpatrick suggests, this contemporary scholarship emerges from a tradition that has been sympathetic toward informalism.Google Scholar

8 Hartog, Hendrik, “Pigs and Positivism,” 1985 Wis. L. Rev. 899; Nikolas Rose, “Beyond the Public/Private Division: Law, Politics, and the Family,” in Fitzpatrick & Hunt, eds., Critical Legal Studies 61 (Rose, “Public/Private Division”); Stan Cohen, Visions of Social Control (London: Polity Press, 1985); John Brigham, “Rights Discourse,” 2 Stud. Am. Pol. Dev. 303 (1987).Google Scholar

9 Kelman, Mark, A Guide to Critical Legal Studies 253 (Cambridge, Mass.: Harvard University Press, 1987) (“Kelman, Guide”).Google Scholar

10 The concept of legal pluralism was originally used to describe colonized societies that, by the nature of their colonization, had multiple normative orders that often contended with one another. Now this vision of legal pluralism has broadened. The concept continues to refer to situations where two or more legal systems exist in the same social field, but “legal system” is now broadly defined to include both those normative ordering mechanisms directly supported by the state and nonlegal forms of ordering. Legal scholars are increasingly using the concept of pluralism to describe sociolegal phenomena in first-world North American societies. Merry, Sally, “Legal Pluralism,” 22 Law & Soc'y Rev. 869 (1988).Google Scholar

11 Merry, 22 Law & Soc'y Rev. at 869.CrossRefGoogle Scholar

12 Boaventura de Sousa Santos, “Law, a Map of Misreading: Toward a Postmodern Concept of Law,” 14 J. L. & Soc'y 279, 298 (1987). See also Stuart Henry, Priate Justice: Towards Integrated Theorising in the Sociology of Law 62–69 (London: Routledge & Kegan Paul, 1983); Fitzpatric, Rise of Informalism.Google Scholar

13 Kelman, Guide 269–95.Google Scholar

14 See also Gaylin's treatment of the Bonnie Garland murder, in which he criticizes the adversarial method's failure to give sufficient recognition to the murder victim's voice. Gaylin, William, The Killing of Bonnie Garland (New York: Simon & Schuster, 1982). The popular press coverage of the recent New York City “Preppie Murder Case” takes a similar line regarding a trial with some similar circumstances and the same defense attorney as the Bonnie Garland case. See James S. Kunen, “Blaming His Victim, A Killer Cops a Plea,” 29 People 24 (1988).Google Scholar

15 MacKinnon, Catherine A., Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) (“MacKinnon, Feminism”); Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” 96 Yale L. J. 1860 (1987); id., “We, the Family: Constitutional Rights and American Families,” 74 J. Am. Hist. 959 (1987); Christopher D. Stone, Earth and Ethics: A Case for Moral Pharalism (New York: Harper & Row, 1987); Tom Campbell, “Introduction,” in Tom Campbell et al., eds., Human Rights 1–14 (Oxford: Basil Blackwell, 1986) (“Campbell, ‘Introduction’“); Ann Bottomley, Susie Gibson, & Belinda Mateyard, in Fitzpatrick & Hunt, eds., Critical Legal Studies; and Rose, “Public/Private Division.”Google Scholar

16 MacKinnon, Feminism 103–16, 127–215.Google Scholar

17 Bumiller, Kristen, “Victims in the Shadow of the Law,” 12 Signs 421 (1987).Google Scholar

18 Addressing lawyers who have worked in the rights movement, Lichterman cascigates them for their failure to comprehend the limits of “the entire form of political engagement our previous preoccupation signified-a form of politics based on the deployment of technical, professional and intellectual skills to achieve circumscribed goals deemed ‘progressive’ within bureaucratic institutions.” Andrew M. Lichterman, “Social Movements and Legal Elites,” 1984 Wis. L. Rev. 1035, 1038. In this critique, the rights movement as it was constituted by legal professionals-and this interpretation stresses how much the movement was constituted by legal professionals-erred by separating law from a broader notion of politics and by keeping clients (those with more “emotional,” less “rational” views) in check. The new scholarly discourse often strongly advocates a reorganization of legal practice so that hierarchy is reduced and more voices-both clients and staff-are heard. Legal strategies should tear down the barriers between professional behavior and political mobilization. Simon, William H., “Visions of Practice in Legal Thought,” 36 Stan. L. Rev. 469 (1984); Robert W. Gordon, “Law and Ideology,” 3 Tikkun 14 (1988).Google Scholar

19 Tushnet, Mark, “An Essay on Rights,” 62 Tex. L. Rev. 1363, 1402–3 (1984).Google Scholar

20 Matsuda, Mari, “Looking to the Bottom: Critical Legal Studies and Reparation,” 22 Harv. C. R. -C. L. L. Rev. 323 (1987).Google Scholar

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22 Tushnet, 62 Tex. L. Rev. at 1402–3.Google Scholar

23 Hunt, “The Critique” 7–9 (cited in note 7).Google Scholar

24 Id. Hunt goes so far as to argue that contemporary legal scholarship has not given up the idea that an objective reality exists. What has been given up is the idea that there can be a correct discourse that describes this reality.Google Scholar

25 Tushnet, 62 Tex. L. Rev. at 1363; id., “The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” 74 J. Am. Hist. 884 (1987); Morton J. Horwitz, “Rights,” 23 Harv. C. R. -C. L. L. Rev. 393 (1988); Tom Campbell, The Left and Rights (London: Routledge & Kegan Paul, 1983) (“Campbell, The Left”); Martha Minow, “Forming Underneath Everything That Grows: Toward a History of Family Law,” 1985 Wis. L. Rev. 819; and Frances Olsen, “Statutory Rape: A Feminist Critique of Rights Analysis,” 63 Tex. L. Rev. 387 (1984).Google Scholar

26 Gabel, Peter & Kennedy, Duncan, “Roll Over Beethoven,” 36 Stan. L. Rev. 1, 26 (1984).Google Scholar

27 Perry, Michael J., “Taking Neither ‘Rights-talk’ nor the ‘Critique of Rights’ Too Seriously,” 62 Tex. L. Rev. 1405 (1984); Jane Appleby, “The American Heritage: The Heirs and the Disinherited,” 74 J. Am. Hist. 798 (1987).Google Scholar

28 In his critique of the myth of rights, Scheingold demystifies rights by considering them to be simply political resources that may or may not be successful in achieving broader political goals. Scheingold, Stuart, The Politics of Rights 204–19 (New Haven, Conn.: Yale University Press, 1974) (“Scheingold, Politics”). The focus on discourse by the more recent literature suggests an even more comprehensive attempt at demystification.Google Scholar

29 Haskell, 74 J. Am. Hist. at 984 (cited in note 1).CrossRefGoogle Scholar

30 Matsuda, 22 Harv. C. R. -C. L. L. Rev. at 338.Google Scholar

31 Merry, 13 Am. Ethnologist at 253 (cited in note 7).CrossRefGoogle Scholar

32 Schneider, Elizabgth M., “The ‘Dialectic’ of Rights and Politics: Perspectives from the Women's Movement,” 61 N. Y. U. L. Rev. 589 (1986); Michael W. McCann, “Legal Mobilization, Rights Consciousness, and the Politics of Pay Equity Reform,” paper delivered at annual meeting of Law and Society Association, Madison, Wis. (June 8–11, 1989).Google Scholar

33 Hirst, Paul & Jones, Phil, “Critical Resources of Established Jurisprudence,” in Fitzpatrick & Hunt, eds., Critical Legal Studes 21 (cited in note 7); David Nelkin, “Critical Criminal Law,” in Fitzpatrick & Hunt, eds., Critical Legal Studies 105 (cited in note 7).Google Scholar

34 Tushner, 62 Tex. L. Rev. at 1363.Google Scholar

35 Lynd, Staughton, “Communal Rights,” 62 Tex. L. Rev. 1417, 1419 (1984).Google Scholar

36 Cover, Robert, “Violence and the Word,” 95 Yale L. J. 1601 (1986).Google Scholar

37 Tushner, 74 J. Am. Hist. at 884 (cited in note 25).Google Scholar

38 “The language of human rights carries great rhetorical force of uncertain significance.” Tom Campbell, “Introduction,” at 1 (cited in note 15).Google Scholar

39 Appleby, 74 J. Am. Hist. at 812 (emphasis added) (cited in note 27).Google Scholar

40 Haskell, 74 J. Am. Hist. at 984 (cited in note 29).CrossRefGoogle Scholar

41 Minow, 74 J. Am. Hist. at 959 (cited in note 15); Santos, 14 J. L. & Soc'y at 279, 297–99 (cited in note 12).Google Scholar

42 Perry, 62 Tex. L. Rev. at 1405 (cited in note 27); Hunt, “The Critique” (cited in note 7).Google Scholar

43 96 Yale L. J. at 1860 (cited in note 15); 74 J. Am. Hist. at 959; “When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection, and Legal Treatment of Difference,” 22 Harv. C. R. C. L. L. Rev. 111 (1987); and 1985 Wis. L. Rev. at 819 (cited in note 25). The debate over the role of rights in developing communal values has been a part of legal scholarship for a long time. Campbell, The Left (cited in note 25), and Lynd, 62 Tex. L. Rev. at 1417, have recently continued this discussion by arguing that rights do not necessarily work against the development of egalitarian and communirarian values. Of the two, Lynd's argument is the more explicitly critical of the playfulness and skepticism of contemporary legal scholarship. He is impatient with what he considers to be the vague political visions of critical legal studies as well as with the movement's failure to recognize the fact that there is a tradition of communal rights in the United States (in labor law), and that these rights make an important difference. Lynd's critique is compelling because it is based on the very kinds of political experiences of using the law that contemporary jurisprudence takes most seriously. Minow emphasizes rights' role in building community values rather than the more instrumental role rights play in Campbell's and Lynd's schemes.Google Scholar

44 Other writers who have similar views regarding the potential and limits of rights talk are Haskell, 7 Am. J. Hist. at 984: Appleby, 74 J. Am. Hist. at 798; and Tigar, Michael E., “Crime Talk, Rights Talk, and Double-Talk: Thoughts on Reading Encyclopedia of Crime and Justice,” 65 Tex. L. Rev. 101 (1986).Google Scholar

45 Compare Hutchinson, Allan C. & Monahan, Patrick J., “The ‘Rights’ Stuff: Roberto Unger and Beyond,” 62 Text L. Rev. 1477, 1543–39 (1984).Google Scholar

46 Schneider, 61 N. Y. U. L. Rev. at 589 (cited in note 32).Google Scholar

47 Minow, 96 Yale L. J. at 1911.Google Scholar

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50 Minow is very much influenced by the development of rights regarding families, children, and the disabled, arenas where individual rights have oversimplified relationships; on the other hand, those who have been granted the rights feel that their gain is very important. On family law, see 1985 Wis. L. Rev. at 819 (cited in note 25); on children, see 1985 Wis. L. Rev. at 819, 96 Yale L. J. at 1860, and 74 J. Am. Hist. at 959; on the mentally disabled, see 22 Harv. C. R. -C. L. L. Rev. at 111.Google Scholar

51 Friedman, Lawrence M., Total Justice (New York: Russell Sage, 1985).Google Scholar

52 Scheingold, Politics (cited in note 28).Google Scholar

53 Id. at 1–37.Google Scholar

54 Auerbach, Jerold S., Justice Without Law (New York: Oxford, 1983).Google Scholar

55 Engel, David, “The Oven Bird's Song: Insiders, Oursiders, and Personal Injury in an American Community,” 18 Law & Soc'y Rev. 549; id., “Law, Time, and Community,” 21 Law & Soc'y Rev. 60 (1987); Carol J. Greenhouse, “Teaching America: Community, Pluralism, and Law,” 3 Focus L Stud. 1 (1987); id., “Courting Difference: Issues of Interpretation and Comparison in the Study of Legal Ideologies,” 22 Law & Soc'y Rev. 687 (1988).Google Scholar

56 Hastings, Elizabeth H. & Hastings, Philip P. K., eds., International Public Opinion (New York: Greenwood, 1981, 1984, 1985, 1986) (“Hastings & Hastings, Public Opinion”). In 1981 edition, see page 150; in 1984 edition, see page 338; in 1985 edition, see page 310; in 1986 edition, see page 360.Google Scholar

57 This denigration of the Court was tempered somewhat because over these same years, the percentage of people who had at least a good deal (as opposed to a great deal) of confidence in the Court stayed stable and high, ranging from 75 to 83 percent. From 1973–80, the range was only 4 percentage points. Hastings & Hastings, Public Opinion 150 (1981).Google Scholar

58 Id. at 538–39 (1982).Google Scholar

59 Gallup, George, The Gallup Poll 165–66 (Wilmington, Del.: Scholarly Resources, 1982, 1985, 1986) (“Group Poll”). For 1982 edition, see pages 165–66. See also Hastings & Hastings, Public Opinion 338 (1984).Google Scholar

60 An example of the relationship between criticizing a right and fearing its impact on one's own life may be the decreasing support for homosexual rights. Public support for the delegalization of homosexual relations declined sharply in 1986. Only 33 percent supported legalization. The question has been asked in polls conducted during the past nine years, but never before had a majority disapproved legalization. The change appeared to be associated with an increasing fear of AIDS. Gallup Poll 215 (1986).Google Scholar

61 Gallup Poll 833 (1976); id., 117 (1978); id., 210 (1981); id., 143–44 (1983); id., 191–92 (1985).Google Scholar

62 Hastings & Hastings, Public Opinion 24 (1987).Google Scholar

63 Greenhouse, 22 Law & Soc'y Rev. at 687; Engel, 18 Law & Soc'y Rev. at 549; id., 21 Law & Soc'y Rev. at 60. It is hard to document whether Americans increasingly take the position that there is too much litigation and too many lawyers. Friedman, Total Justice 7–13, asserts that this is the case and goes on to question the validity of the position rather than to inquire more deeply into the existence of this view. There is little doubt, however, that elites, including many influential people in the legal profession, now take a much more negative attitude toward litigation and lawyers than they did 15 or 20 years ago. See the discussion of elites in the subsequent section.Google Scholar

64 Macaulay, Stuart, “Images of Law in Everyday Life: The Lessons of School, Entertainment and Spectator Sports,” 21 Law & Soc'y Rev. 185 (1987).Google Scholar

65 Much information about contingency and variation comes from ethnographic studies of law. This is not surprising because that approach is so amenable to finding differences and exceptions. Ethnographic work stresses how ideologies and practices reflect and constitute specific culture contexts. The contemporary legal scholarship discussed in the previous section is very much influenced by ethnography. That raises an interesting epistemological question. To what extent have the ideologies of these writers led them to “discover” a legal pluralism that has existed for a long time prior to their becoming aware of it? See, e. g., Greenhouse, 3 Focus L. Stud. at 1. Answering this question is beyond the scope of this paper, but the question is at least worth mentioning as a caution against making sweeping statements about the causes of ideological change.Google Scholar

66 Greenhouse, 22 Law & Soc'y Rev.; Engel, 18 Law & Soc'y Rev. at 549; id., 21 Law & Soc'y Rev. at 60.Google Scholar

67 Engel, 18 Law & Soc'y Rev. at 549; id., 21 Law & Soc'y Rev. at 60.Google Scholar

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70 Harrington, Christine B., Shadow Justice: The Ideology and Institutionalization of Alternatives to Court 6–40 (Westport, Conn.: Greenwood, 1985) (“Harrington, Shadow Justice”).Google Scholar

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76 Resnick, Judith, “Failing Faith: Adjudicatory Procedure in Decline,”53 U. Chi. L. Rev. 494 (1986).CrossRefGoogle Scholar

77 Harrington, Christine B., “Regulatory Reform: Creating Gaps and Making Markets,” at 25 (unpublished manuscript, 1987).Google Scholar

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79 Resnick, 53 U. Chi. L. Rev. at 494.Google Scholar

80 Resnick, id. at 511, calls such cases “vivid information.”Google Scholar

81 Id. at 494.Google Scholar

82 Cooper, Phillip J., Hard Judicial Choices: Federal District Court Judges and State and Local Officials 19 (New York: Oxford, 1988) (“Cooper, Hard Judicial Choices”). The word “facilitator” is very much a part of the vocabularly of the alternative dispute process movement in the United States.Google Scholar

83 McGovern, Francis E., “Toward a Functional Approach for Managing Complex Litigation,” 53 U. Chi. L. Rev. 441 (1986). See also Note, “The Modification of Consent Decrees in Institutional Reform Litigation,” 99 Harv. L. Rev. 1020 (1986).Google Scholar

84 Weinberg, Joanna K., “The Bureaucratic Judiciary: The Future of Court-oriented Change,” 6 Law & Hum. Behav. 169 (1982).Google Scholar

85 Writings on the use of consent decrees give little attention to the ways rights affect the ultimate outcome of the case. See, e. g., Cooper, Hard Judicial Choices. The best study of the interaction of rights and the informal politics of the consent decree is Rothman, David & Rothman, Sheila, The Willowbrook Wars: A Decade of Struggle for Social Justice (New York: Harper & Row, 1984) (“Rothman & Rothman, Willowbook Wars”).Google Scholar

86 For a discussion of the role of difference in ideologies, see Greenhouse, 22 Law & Soc'y Rev. at 687 (cited in note 55).Google Scholar

87 Brigham, John, “Rights Discourse,” 2 Stud. Am. Pol. Dev. 303 (1987).Google Scholar

88 My thanks to one of the anonymous commentators for some particularly good suggestions on how to clarify the practices and ideologies of these two organizations.Google Scholar

89 I use the term “mentally ill” and “mental illness” advisedly because NAMI subscribes to a medical model of mental illness. As I argue subsequently, NAMI's choice of these terms is related to the organization's view of rights.Google Scholar

90 Williams, Roger T. & Shetler, Harriet M., Proceedings of a Conference ‘Advocacy for Persons with Chronic Mental Illness’ (Madison: University of Wisconsin Extension Division, 1979) (“Williams & Shelter, Proceedings”).Google Scholar

91 NAMI News, Sept. 1981; NAMI News, June 1986. The NAMI News is available through NAMI, 1900 N. Fort Meyer Drive, Arlington, VA 22209. I have copies of all those issues I have cited.Google Scholar

92 Hatfield, Agnes, “Helpseeking Behavior in Families of Schizophrenics,”7 Am. J. Community Psychology 563 (1979).CrossRefGoogle Scholar

93 NAMI News, June 1986, at 12.Google Scholar

94 NAMI News, Feb. 1981, at 1.Google Scholar

95 NAMI News, Feb. 1986, at 2; id., Apr. 1986, at 2.Google Scholar

96 In her survey of NAMI members, Hatfield, 7 Am. J. Community Psychology at 563, shows how unimportant the parents think talk therapy is.Google Scholar

97 Rothman & Rothman, Willowbrook Wars 36, 48, 57, 62, 143, 257–95 (cited in note 85), show what differences result from defining the mentally retarded as citizens or as patients.Google Scholar

98 Williams & Shelter, Proceedings; Hatfield, 7 Am. J. Community Psychology at 563.Google Scholar

99 NAMI News, Apr. 1986, at 2.Google Scholar

100 Milner, Neal, “The Right to Refuse Treatment: Four Case Studies in Legal Mobilization,” 21 Law & Soc'y Rev. 447 (1987).Google Scholar

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102 NAMI News, Feb. 1985, at 14. See also Owen, Eleanor, Testimony on FY 1983 Mental Health Research and Training Services Before the Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services (Washington, D. C.: National Alliance for the Mentally III, 1982).Google Scholar

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106 Williams & Shetler, Proceedings 29 (emphasis added).Google Scholar

107 The work on the APA is primarily a reconsideration of Neal Milner, “Legal Mobilization, Legal Ideology, and Structural Interests,” paper delivered at Law and Society Association meetings, Toronto (June 5, 1982) (“Milner, ‘Paper’”); id., “Accommodating the Legal Process,” 1983 A. B. F. Res. J. 507; and id., “The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation Groups,” 8 Law & Pol'y 105 (1986).CrossRefGoogle Scholar

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114 3 Bull. Am Acad. Psychintry & L. at 1125. During the 1970s, Stone and the wellknown Harvard law professor and defense attorney Alan Dershowitz taught a course together on law and psychiatry at Harvard Law School.Google Scholar

115 Stone, 30 Hose. & Community Psychiatry at 822.Google Scholar

116 Milner, “Paper,” at 20–28.Google Scholar

117 Robitscher, Powers, Milner, 1983 A. B. F. Res. J. at 507. In the 1983 article I argue that this accommodation has gone too far and underestimates the distinctions between psychiatry and law.Google Scholar

118 Milner, 8 Int'l J. L. & Psychiatry at 105 (cited in note 103).Google Scholar

119 Lamb, H. Richard, The Homeless Mentally Ill: Task Force Report of the American Psychiatric Association (Washington, D. C.: American Psychiatric Association, 1984) (“Lamb, Homeless”).Google Scholar

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125 The material used in this section can be found in the clipping files “Electroshock” and “Elections 1982: Berkeley Ballot Measures” at the main branch of the Berkeley City Library. I cite specific material in those files only if I am quoting them directly. See also Milner, 8 Law & Pol'y at 105 (cited in note 107), and id., 21 Law & Soc'y Rev. at 447 cited in note 100).Google Scholar

126 After the psychiatrists' victory in the lower courts, the shock referendum remained an important political issue in Berkeley. When the hospital resumed shock therapy after the judge's initial decision, the Coalition to Stop Electroshock, which was a grass-roots political organization with many members who had previously been involved in political issues on behalf of mental patients, organized a protest against the hospital's action. Approximately 100 people participated in the protest. Some blocked entrances and were arrested for trespassing.Google Scholar

In mid-September 1983, the trial judge decided to grant a summary motion to dismiss the appeal against this injunction, so no trial was held on the merits of the referendum. Antishock activities continued. Less than two weeks before a hearing to get the judge to reconsider his dismissal, the Coalition to Stop Electroshock did some informational picketing at the hospital. The judge did not change his summary judgment. After that, the issue moved out of the community and into the appellate courts. There was no significant activity either in the courts or in the city until almost three years after the summary dismissal when the California Court of Appeals refused to let the Coalition, which was represented by one of the few lawyers with a national reputation in patients' rights cases, act as an intervenor in the case.Google Scholar

127 Oakland Tribune, Mar. 16, 1983.Google Scholar

128 Berkeley Gazette, Oct. 14, 1982.Google Scholar

129 Daily Californian, Jan. 16, 1983.Google Scholar

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131 Oakland Tribune, Jan. 15, 1983.Google Scholar

132 The mental patient group's position on this created a rift between them and the lawyers with whom the group was cooperating on the California right-to-refuse-treatment case. The lawyers refused to take a position in favor of the referendum on the grounds that such support contradicted a rationale for a right to refuse treatment. The mental patient liberation group saw this as evidence of a greater concern with minor legal niceties than with broad and important legal victories. See Milner, 8 Law & Pol'y at 105 (cited in note 107), and id., 21 Law & Soc'y Rev. at 447 (cited in note 100).Google Scholar

133 Those groups that favored the referendum, including the Berkeley city attorney's office, talked about how barbaric the treatment was. As the issue became legalized, the psychiatric position paid little attention to the merits issue and argued the case almost completely on narrow legal grounds.Google Scholar

134 For a critical view of this concern, see Milner, Neal, “The Limits and Pitfalls of Hermeneutics: What Legal Interpretation Does Not Tell Us About Rights and Progressive Politics” (unpublished manuscript, 1989) (“Milner, ‘Limits’”).Google Scholar

135 That is not to say that the assumptions of the families and those of the physicians have been similar. In fact, conventional psychiatric theories since Freud have often blamed the family members for the family member's illness. For a good summary, see Torrey, E. Fuller, Nowhere to Go: The Tragic Odyssey of the Homeless Mentally Ill in America (New York: Harper & Row, 1988) (“Torrey, Nowhere to Go”).Google Scholar

136 For a discussion of the fabric of difference, see Engel, 21 Law & Soc'y Rev. at 60 (cited in note 55). My discussion here follows the outline set out by Greenhouse, 22 Law & Soc'y Rev. at 688–89 (cited in note 55).Google Scholar

137 See the discussion accompanying notes 37–46.Google Scholar

138 Minow, 96 Yale L. J. at 1860 (cited in note 15).CrossRefGoogle Scholar

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140 In literary theory, there is a similar debate about the existence and sttength of interpretive communities. See Fish, Stanley, Is There a Text in This Class? (Cambridge: Harvard University Press, 1980); Samuel Weber, Institution and Interpretation (Minneapolis: University of Minnesota, 1987); and Milner, “Limits.”Google Scholar

141 Torrey, Nowhere to Go. It should be noted that Torrey is critical of the right to refuse and of the liberalization of commitment laws (see especially pages 157–60), but Torrey's work is extremely valuable in describing the parceling out of the blame for the plight of the chronically mentally ill.Google Scholar

142 Milner, 8 Law & Pol'y at 105 (cited in note 107); id., 21 Law & Soc'y Rev. at 447 (cited in note 100).Google Scholar

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144 Torrey, Nowhere to Go.Google Scholar

145 I am working as a participant observer with an ongoing mental health policy roundtable composed of approximately 30 people, including, among others, the chronically mentally ill, legislators, psychiatrists, social workers, family members, police, and lawyers. My evidence at this stage is still fragmentary because the group has been together for only four months and has met five times.Google Scholar

146 E. g., Dane County, Wisconsin, which is considered to be a model program, uses case managers as intermediaries in situations where a chronically mentally ill person refuses to take medication. The managers, who have previous and regular contact with the sick person and who have built up a great degree of trust with that person, are supposed to make it more possible to resolve the problem in a consensual way. See also Ingo Keilitz, “An Introduction to the National Center for State Courts' Guidelines for Involuntary Civil Commitment,” 39 Hosp. & Community Psychitry 397 (1988):Google Scholar

In these guidelines, involuntary civil commitment is not viewed primarily as a legal problem to be solved by applying legal doctrine and reforming the law in the books.Google Scholar

Such a relatively narrow view was appropriate during the 1960's and 1970's, when aggressive legal advocacy was necessary to establish the rights of mental patients. In recent years, however, it has spawned divisive controversy over narrow disciplinary concerns, such as whether the “medical” or “legal” model for statutory reform should prevail. It has also provoked debates of abstract, extreme ideas, such as whether the state ever has the right to use coercive powers with mental patients….Google Scholar

By defining involuntary civil commitment as the process that must be coordinated from the beginning to the end and that must be administered by people of good sense who communicate with cach other, the guidelines may provoke a better framework for justice in practice.Google Scholar

Minow, Martha, one of the strongest advocates of the interpretive community approach to understanding rights, also is uncomfortable with the ability of rights discourse to deal with mental health issues. See Minow, 22 Harv. C. R. -C. L. L. Rev. at 111 (cited in note 43).Google Scholar