This dissertation is an ethnographic and qualitative study of how healthcare organizations

construct and enact policies on the use of new prenatal technologies, and how such policies

construct the context for patients’ decision-making. Specifically, it examines how the systems that

organizations create for new technologies shape the roles of women in motherhood and pregnancy.

Using qualitative methods, the dissertation examines how one private California healthcare

organization constructed policies regarding a new prenatal genetic test: non-invasive prenatal

screening (NIPT) using cell free DNA.1 The rapid uptake of NIPT since 2013 has led to

organizational upheaval as healthcare administrators struggle to categorize these new tests, which

blends the ease of basic blood screening most women have been offered for years (just a blood

draw) with claims of diagnostic-level accuracy (99% for the condition of Down Syndrome),

allowing women to forego an invasive procedure like amniocentesis. The study ethnographically

traces the process of policy creation and its impact on the ground by (1) observing how a policy

committee dedicated to moving NIPT from a Genetics department at a regional healthcare

organization to its Obstetrics department made new policies on NIPT use, and the (2) observing

the impact of these new NIPT policies on “the ground” at local Obstetrics clinics.

Little research has examined the process of policy-making for patient education. This study builds

on literature on the constitutive nature of law and policy (Sarat and Kearns 1993) to show how

organizational policies can constitute what technology means: the roles, responsibilities and

identities of organizational personnel and those who use their services (e.g. women who are

pregnant). More than simply processing patients who come through the door, organizational

policies, like law, redefine who patients are, and what they experience both empirically and

normatively. This dissertation studies how in this process institutional logics construct new risks

and responsibilities for women while pregnant.

1 NIPT claims to isolate a fetus’s DNA from its mother’s blood, allowing testing platforms to search for indications

the fetus has an abnormal chromosome.

iii

Tracing the policy formation-to-implementation process shows: 1) how actors in organizations

used various institutional logics to negotiate the meaning of new technologies in policies, practices,

and routines; and 2) how the logics that organizational actors use construct the social meanings of

patient education, patient autonomy, and the purpose of NIPT use. During the organizational

transition from the Genetics Department to Obstetrics Department, informed consent for NIPT was

decoupled from its intended aims as envisioned in bio- and medical-ethics, and as it had formerly

been implemented in the Genetics Department. This dissertation argues that decoupling happened

because of a change in institutional logics when NIPT use moved between departments. When the

logic changed, patient needs, interests, and identity were conceptualized around different frames

of motherhood. The encompassing changes in how the new NIPT system was constructed shed

light on why it matters which logic is used in organizational policy-making: the resources and

care available to women change as a result of how their needs and responsibilities are

conceptualized.

This dissertation is a study of the structural challenges to due process in summary deportations in the border setting and their consequences. It focuses on a little-understood but consequential U.S. Border Patrol practice called administrative voluntary departure (or colloquially, “voluntary return”) whereby, on paper, an undocumented immigrant apprehended by immigration authorities agrees to waive his or her right to a hearing before an immigration judge and voluntarily depart the United States. Voluntary departure is not legally constructed as “deportation” or “removal,” but the vast majority of individuals who have been required to depart the U.S. via state action have been subject to voluntary return, and they are overwhelmingly Mexican nationals removed by the U.S. Border Patrol.

Voluntary return has largely been studied as a “border” practice and as part of the social process of border crossing, whereby undocumented immigrants with little to no equities in the U.S. are caught illicitly crossing the border and promptly (within hours, if not minutes) and informally returned to the Mexican side of the border, where they try to effect another entry. It is depicted in the literature and by federal courts as a disposition that undocumented immigrants accept in their own self-interest because they avoid the stigma and consequences of formal removal and would not benefit anyway from lengthy removal proceedings, given their lack of equities in the U.S. In contrast, this law-in-action study shows that the U.S. Border Patrol has also historically used voluntary departure as a racialized tool of interior enforcement to summarily deport long-term resident Mexican immigrants from the communities they have lived in for years, if not decades, with long-term deleterious consequences.

Drawing on 29 in-depth, semi-structured interviews with immigration practitioners and border advocates in the border city of San Diego, as well as a range of documentary evidence including Border Patrol organizational materials (such as voluntary return instructor guides and training materials) obtained through a Freedom of Information Act request from the American Immigration Council, this dissertation shows that the U.S. Border Patrol has relied on systematic surveillance of the border region to target and deport en masse Mexican nationals in a process that, contrary to statute and regulations, is unduly coercive. Coercion in voluntary departure is a result of the weak context of rights and protections for custodial migrants in the civil immigration context (e.g. lax USBP policies governing detention conditions, barriers to legal representation, information-deficient forms, and deficient USBP officer training in voluntary departure procedures)—structures that undermine the conditions of consent. I argue that the legal construction of voluntary return as a consensual process belies the ways in which subtle forms of power such as information control, deception, persuasion, and manipulation operate through these structural factors to induce undocumented immigrants with ties to the U.S. to relinquish important procedural rights and potential opportunities to formalize their status in immigration court. Through the mass processing of Mexican nationals and the lack of procedural due process, I show that voluntary return functions as an engine of mass social inequality, comparable to the U.S. system of mass incarceration, which is similarly a racialized institution, systematic in practice, and quasi-illegal.

Ultimately, my research on voluntary return finds that the law-in-action differs from the law-on-the-books in a way that is symptomatic of an immigration system that lacks a commitment to the due process rights of undocumented immigrants. This gap signifies that the promise of the law-on-the-books for due process cannot, or will not, be kept. The lack of commitment to due process is corroborated by the relatively recent shift in border enforcement to summary removal procedures (e.g. expedited removal and reinstatement of removal), which have constituted the vast majority of removals in recent years. Where the law provides the option of due process in court for those subject to voluntary return, summary removal procedures altogether bar migrants in these proceedings from a hearing. The predominance of expedited removals and reinstatement of removals signal not only a continued neglect of due process rights, but one that is now enshrined in the statute and regulations. What these new policies effectively do is remove the gap between the law-on-the-books and the law-in-action, not by providing more due process, but by removing the promise of due process altogether. Thus, there is a kind of devolution from the law on the books, which promised due process, to voluntary departure in action which violates that promise on the ground, to formal summary removal policies which remove the gap by removing the promise (i.e. writing the promise of due process out of the law). This movement away from a policy of formally consensual voluntary returns to summary removal procedures exposes the legal fiction of consensual voluntary departure.

This dissertation contributes to the growing field of deportation studies by providing a study of one of the main mechanisms of deportation, one that has largely been understudied and undertheorized. It also illuminates the central role in the U.S. deportation regime of “deformalized” or “fast-track” deportations (those that bypass courts), which have largely been neglected by empirical scholars of deportation. By shifting the focus of deportation studies outside of courts, this dissertation shows that the U.S. deportation regime is more expansive, but also less visible, than what the literature indicates, and that to truly understand the scale of the deportation system and its effects, it must be studied from the perspective of these dispositions.

For the past 40 years, the constitutionality of affirmative action has rested on a central idea: racial minorities have unique perspectives, and without including those perspectives, universities are limited in their ability to expose students to a “robust exchange of ideas.” This idea has prevailed in large measure because elite universities have consistently argued to the courts that underrepresented minorities add vital racial perspectives that enrich the education of their peers. This dissertation answers two key questions: one focuses on the Court’s initial embrace of the diversity rationale, the other aims to see how the diversity rationale plays out in practice today.

1. How did “the diversity rationale” become the primary—and for practical purposes, the only—justification that the Supreme Court has deemed sufficiently compelling to uphold affirmative action?

2. How do black students interpret and respond to the expectation embedded in the diversity rationale that they are to contribute unique intellectual insights that emerge from, as the Supreme Court has said, “being a racial minority in a society, like our own, in which race unfortunately still matters”?

To answer these questions, I rely on both archival research and interviews with graduate students at both a predominantly white and historically black university. As I uncover in this dissertation, the origins of the Court’s embrace of diversity are rooted in an effort to mold the ideological orientation of college students by policing the kinds of ideas that were present on campus. In line with that goal, black students attending predominantly white institutions today express a belief that despite their university’s outward embrace of intellectual diversity, that their racial viewpoints are devalued and, through subtle mechanisms, policed. Ultimately, this is a dissertation about race, intellectual freedom, and social control.

Labor conditions and real wages in the United States have atrophied over the past thirty years, weakened by neoliberal governance, shifting business models, and the decline of private-sector unions. This dissertation examines the San Francisco taxi industry as a site of these changes, and uses archival research and ethnography to understand the emerging intersection of structural changes, political and legal activism, and worker identities. I argue that free market practices and new regimes of work have transformed not only the nature of work, but also the subjectivities of U.S. workers and the dynamics of collective worker politics.

Through a legal and historical analysis of how employment identities and work are constructed under U.S. law, my dissertation traces the bifurcation of worker classification into employees and independent contractors from the New Deal to the present. I show how the erratic legal analysis of who constitutes a state-protected employee has its origins not in an objective reality about the changing nature of work itself, but rather in shifting cultural meanings about the individual in relation to phases of capitalism. Drawing on court decisions and the political and legal history of San Francisco taxi drivers, my research situates the production of juridical precarity alongside the sociolegal construction of taxi drivers as working-class entrepreneurs.

Complementing this historical analysis, my ethnographic research examines the contemporary politics of work and work law amongst cab drivers and those who advocate on their behalf. I argue, contrary to existing labor law scholarship, that post-classification legal challenges to the independent contractor identity are ineffective; they reify the inequalities between "master" and "servant" by ignoring the subjectivities and desires of workers. My interviews reveal that for San Francisco taxi workers, legal work categories have become embodied cultural and political identities. Many immigrant taxi workers, for example, embrace their independent contractor status because it provides legal validation for their identities as aspiring entrepreneurs, propelling them closer to the possibility of upward social mobility. For my interlocutors, working-class entrepreneurship, even alongside material deprivation and poor working conditions, enables an affective freedom and re- affirms a working-class masculinity, lost amidst shifts in modes of capitalist production.

Building on these historical and ethnographic findings, my dissertation considers new possibilities of worker collectivities and a new politics of work law. I consider "worker centers" as sites for potentially radical work politics. Precisely because they function outside the context of existing and outmoded forms of labor law, worker centers, I argue, respond to the subjectivities and intersectional identities of contemporary immigrant workers and have powerful potential to compel a new politics of work and work law attentive to ever-shifting forms of labor.

This dissertation is a compendium of three papers. It explores the multifaceted issues of gender inequality within large law firms, focusing on the persistent barriers faced by women and the impact of policies and practices aimed at mitigating these challenges. The three studies collectively examine the career trajectories of female lawyers, the role of mentorship, and the effects of domestic responsibilities, especially during the COVID-19 pandemic, to provide a comprehensive understanding of the systemic and cultural obstacles that contribute to the gender attrition crisis in elite law firms.The first paper, “Law’s Leaky Pipeline: An Examination of Gender-Based Attrition and Career Trajectories in Elite Law Firms,” investigates the long-standing disparity in career progression between male and female lawyers. Despite an increase in the percentage of female lawyers, significant gaps remain, particularly in private practice. Through an analysis of career movements at four top-ranked large law firms from 2010 to the present, this study identifies the root causes of women’s higher attrition rates, highlighting the compounded challenges faced by women of color.

The second paper, “Mentorship Matters: Unpacking Gender Inequality in Big Law Before and During COVID-19,” explores the critical role of mentorship in addressing gender disparities. Using original survey data from 187 associates at 15 leading U.S. law firms, the study reveals significant gender differences in mentorship experiences and functions. It examines the efficacy of formal mentorship programs in mitigating gender inequality and how these patterns evolved during the pandemic, ultimately questioning the effectiveness of current mentorship practices in supporting women’s career advancement.

The third paper, “Household Hurdles: Gender-Based Differences in Domestic Labor Among Law Firm Associates Amidst COVID-19,” delves into the impact of the COVID-19 pandemic on domestic labor divisions and work-from-home dynamics. Analyzing survey data from 331 attorneys, this study highlights the increased domestic responsibilities shouldered by female lawyers and the relative immutability of pre-existing gender disparities in domestic labor, despite the shift to remote work. It underscores the missed opportunity for greater gender equality in both personal and professional spheres and discusses the potential of flexible work policies to reduce gender inequality if implemented effectively post-pandemic.Together, these studies underscore the need for a holistic approach to dismantling institutional barriers and promoting gender equality in the legal profession. By examining the interplay of career trajectories, mentorship, and domestic responsibilities, this compendium contributes to the broader discourse on creating a more inclusive and equitable environment in large law firms.

For years after the Supreme Court ruled segregation unconstitutional in Brown v. Board of Education, federal agencies continued to approve and fund the construction and maintenance of segregated schools and housing. They did not halt this practice—or squarely acknowledge the constitutional problems it raised—until Congress specifically prohibited it in the Civil Rights Act of 1964.

In this dissertation, I ask why some federal officials resisted Brown. Using a comparative case study approach, I examine several agencies’ interpretation of equal protection principles in the decades immediately before and after Brown, from the New Deal through 1964. The agencies that I study are the Office of Education (and its parent organization, the Department of Health, Education, and Welfare); the Public Works Administration’s Housing Division; the Public Housing Administration; the Federal Housing Administration; and the latter two agencies’ parent organization, the Housing and Home Finance Agency. In focusing on federal education, public works, and housing programs, I probe the areas in which federal administrators faced the most acute constitutional controversies of the era, as civil rights leaders persistently petitioned them to stop approving and funding racial segregation and discrimination in local public schools, jobs, and housing.

Against the backdrop of a growing literature on administrative constitutionalism that often emphasizes agencies’ role in expanding constitutional rights, this dissertation points to another perspective—highlighting the ways in which agencies can resist the judicial Constitution, prioritize particular constitutional goals at the cost of others, and serve as forces of entrenchment against reform.

I argue that the federal education and housing agencies’ institutional design predisposed them to resist Brown’s revolution in constitutional meaning. Their cases illuminate the broader, recurring possibility that Congress and the president will design agencies in ways that empower politically powerful groups and stave off legal change, to the detriment of constitutional values. The education and housing agencies’ mandates and structures, forged during constitutional conflicts over the reach of the federal welfare state and federal authority to address racial discrimination, led them to defer to state and local authority over schools and housing. Congress deliberately attempted to insulate them from direct White House control, while the controversial nature of their programs (which limited their agencies’ funding and mandates) made administrators extremely sensitive to the preferences of Congress, particular those of the Southern Democrats that served on their agencies’ oversight and appropriations committees. The agencies’ core clienteles, the state and local officials whose programs they funded, forced their attention to federalism values, and diminished the care they could give to racial equality principles. Simultaneously, and in sharp contrast to their agencies’ political vulnerability, these federal officials were insulated from constitutional challenges in the courts by procedural legal doctrines of standing and sovereign immunity.

As a result, federal education and housing officials operated with substantial formal legal autonomy, but high levels of political constraint, as they shaped their programs’ policies on racial segregation and discrimination. The choices that they made in that context tended to preserve progressive social programs while sacrificing the racial justice goals of the Reconstruction Amendments. Thus, these federal administrators’ constitutional decisions helped create the landscape of enduring federal support for education and housing, alongside racially segregated schools and communities, that still exists today.

Abstract: As we reach the end of this decade the current fight for orientation equality appears to be at a crossroads. Formal grants of orientation equality have been numerous over the last few decades, but inequality on the ground, de facto inequality, appears to linger. This dissertation fills holes in the existing scholarship by exploring real-world discrimination in the adjudication of custody disputes against parents labelled by the courts as gay, lesbian or homosexual.

I examine real-world, de facto bias against gay parents in custody adjudications through the use of three separate methodologies: semi-structured interviews of gay parents (and their attorneys), a textual analysis of judicial decisions available through Lexis and Westlaw, and a randomized, controlled experiment. I find that gay parents and their attorneys report significant anti-homosexual bias in the custody adjudication process and on the fringes of that process, a significant difference in bias across both parental gender and gender of the child at issue, and a belief that these biases are moderated by judicial religiosity and disgust sensitivity. Through a textual analysis of judicial decisions available on Westlaw and Lexis I find that gay parents have suffered a significant disadvantage in terms of custody outcomes when compared to their heterosexual peers, and continue to face a significant outcome disadvantage in terms of visitation restrictions. I further find that the evaluation of their parental fitness is routinely marred by judicially held homophobic stereotypes, the majority of which appear to violate legal side constraints, and that the intersectional impact of gender bias creates unique burdens across both parental gender and gender of the child at issue. Through experimental analysis, I find that individual disgust sensitivity predicts custody denial for gay male fathers, but not for lesbian mothers or heterosexual parent of either gender. Moreover, this finding remains even after controlling for normative beliefs that might also explain an orientation or gender bias: traditional gender role beliefs, moral traditionalism and sexual prejudice. I further find that political ideology moderates custody outcomes, but only for gay male fathers. Conservative political ideology interacted with sexual orientation to predict the imposition of visitation restrictions when the parental fitness of fathers was at issue, but this interaction did not produce significant results when the parental fitness of mothers was at issue.

This dissertation examines the impact of litigation on a social movement's dominant substantive goals and message. While scholars have devoted substantial attention to the study of social movement litigation, research in this area typically focuses on how social movements affect substantive law, or more broadly, how a movement's legal tactics bring about social change. By contrast, my focus in this dissertation is on how litigation affects the social movement itself. In particular, how does litigation as a tactic shape a social movement's collective agenda? How does it affect which perspective among possible competing visions comes to define the movement?

I investigate these dynamics through a case study of the lesbian, gay, bisexual, and transgender (LGBT) movement from 1985 to 2008. The study involves three phases of original empirical research, each of which investigates a potential mechanism that may privilege litigation over other tactics in its ability to set the LGBT movement's primary substantive agenda. First, I use a content analysis of newspaper coverage of LGBT politics to determine which movement tactics have received the most media visibility. Second, I perform a statistical analysis of LGBT organizations to determine which movement tactics have been most associated with organizational survival and stability. Third, I perform a qualitative analysis of a subset of those LGBT organizations to examine variation in the strategy-formation processes used by primarily litigation-, lobbying-, or protest-based movement groups.

The media content analysis revealed that litigation received more news coverage than any other LGBT movement tactic, suggesting that litigation had greater visibility than other tactics. In addition, the statistical analysis revealed that the movement organizations that used litigation had greater survival rates than other types of LGBT movement organizations, suggesting that litigation has been a particularly stable feature of LGBT politics. The qualitative analysis of LGBT organizations revealed further insights into how litigation may influence the agendas of non-legal movement actors. Whereas litigating LGBT movement groups proactively pursued preplanned organizational priorities, protest groups formed their agendas reactively, focusing on the issues covered by the mainstream media. This phenomenon appears to have diverted protest groups away from their original priorities and toward the issues that the media found newsworthy. Given my findings that litigation coverage dominated news headlines, the processes identified here may enable litigation to dominate protest activism as well. Taken together, these findings suggest that the media visibility and stability of social movement litigation may contribute to the prominence of litigation and cause legal goals to dominate the movement's overall substantive agenda. I describe this process as the "legalization" of a social movement's agenda.

This dissertation makes a novel contribution to existing scholarship by exposing systemic processes that may privilege movement litigation relative to protest, elevating the issues being litigated to top movement priorities. Significant implications follow for theories of law and social change. Focusing on litigation narrows a movement's agenda because courts offer a forum for only those grievances that can be translated into legal claims. This may be particularly problematic for movements that base their legal claims in antidiscrimination law, which has become settled around quite limited understandings of equality as formal access to equal opportunity and discrimination as an intentional, individual harm. This interpretation not only denies remedies for the structural factors most responsible for perpetuating inequality, it also places the focus on preventing individual wrongdoing rather than producing substantive outcomes. Thus, when antidiscrimination litigation comes to define an equality movement's priorities, the movement may find itself privileging issues with little hope of creating substantive social transformation.