Law & Society Review 45(2)

Exploring the Limits of the Judicialization of Urban Land Disputes in Vietnam
John Gillespie

Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.

Seeing Like a City: The Dialectic of Modern and Premodern Ways of Seeing in Urban Governance
Mariana Valverde

Studies of urban governance, as well as the overlapping literature on law and space, have been heavily influenced by critical analyses of how spatial techniques helped constitute modern disciplinary powers and knowledges. The rise of land-use control and land-use planning seem at first sight to be perfect examples of the disciplining of populations through space by the kind of governmental gaze dubbed by Scott (1998) as “seeing like a state.” But a detailed genealogical study that puts the emergence of the notion of “land use” in the broader context of urban governance technologies reveals that modernist techniques of land use planning, such as North American zoning, are more flexible, contradictory, and fragile than critical urbanists assume. Legal tools of premodern origin that target nonquantifiable offensiveness and thus construct an embodied and relational form of urban subjectivity keep reappearing in the present day. When cities attempt to govern conflicts about the use of space through objective rules, these rules often undermine themselves in a dialectical process that results in the return to older notions of offensiveness. This article argues that the dialectical process by which modernist “seeing like a state” techniques give way to older ways of seeing (e.g., the logic of nuisance) plays a central role in the epistemologically hybrid approach to governing space that is here called “seeing like a city.”

Socially Responsible Private Regulation: World-Culture or World-Capitalism?
Ronen Shamir

This article analyzes the phenomenon of “corporate social responsibility” (CSR; specifically: social private regulation) in light of two sociological paradigms of globalization: “world-culture” and “world-capitalism.” The study treats three analytically distinct features of CSR: the political contestation over its meaning, the role of business studies in transforming it into a managerial model, and its consolidation as a market of authorities. The study finds that (1) while CSR may be theorized as a emergent “world cultural” model, the culture paradigm does not take sufficient account of the role of corporations in shaping it, and (2) while both paradigms recognize the transition from political contestations over the character of CSR to its deployment by means of private regulation, the world-capitalism paradigm offers stronger tools for theorizing the mechanisms of change that mediate between political agency and institutionalized regulatory outcomes.

Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5-Generation Immigrants
Leisy J. Abrego

This article examines the legal consciousness and incorporation experiences of undocumented immigrants in the United States. Although this population may be disaggregated along several axes, one central distinction among them is their age at migration. Those who migrated as adults live out their daily lives in different social contexts than those who migrated as children. Therefore, although all undocumented immigrants are legally banned, their identities, sense of belonging, and interpretation of their status vary. Based on ethnographic observations and in-depth interviews of Latino undocumented immigrants from 2001 to 2010, I examine how illegality is experienced differently by social position. The findings suggest that the role of life-stage at migration and work-versus-school contexts importantly inform immigrants' legal consciousness. Fear predominates in the legal consciousness of first-generation undocumented immigrants, while the legal consciousness of the 1.5 generation is more heavily infused with stigma. Fear and stigma are both barriers to claims-making, but they may affect undocumented immigrants' potential for collective mobilization in different ways.

Short-Term Effects of Sanctioning Reform on Parole Officers' Revocation Decisions
Benjamin Steiner, Lawrence F. Travis III, Matthew D. Makarios and Benjamin Meade

Parole officials have traditionally been afforded considerable discretion when making sanctioning decisions to be able to tailor sanctions according to substantively rational concerns such as individuals' unique needs and situations. However, the application of substantive rationality in sanctioning can also generate unwanted disparities because sanctioning decisions may be based on extralegal factors that parole officials consider relevant. Concerns regarding disparate treatment of offender groups have prompted a number of states to consider adopting administrative violation response policies that emphasize formal rationality and uniformity by restricting parole officers' discretion and structuring sanctioning decisions according to legally relevant criteria. By emphasizing formal rationality in sanctioning, structured sanction policies present a dilemma for parole officers—uniformity versus individualized treatment. In 2005, the state of Ohio implemented an administrative violation response policy designed to reduce parole officers' reliance on revocation hearings and promote uniformity in sanctioning decisions. This study involved an examination of whether Ohio's shift to structured sanctioning coincided with differences in legal and extralegal effects on parole officers' decisions to pursue revocation hearings. Analyses of data collected before and after the implementation of the policy revealed a reduction in the number of revocation hearings officers pursued. Only modest increases in uniformity were observed, however, because there was little disparity resulting from officers' hearing decisions before the policy was put in place. These findings are discussed within perspectives on justice system actors' decision making.

Does the Controversy Matter? Comparing the Causal Determinants of the Adoption of Controversial and Noncontroversial Rape Law Reforms
Jennifer McMahon-Howard

Do the causal determinants of legal change differ for controversial and noncontroversial laws? Using rape law reforms as an example of legal change, I answer this question via a longitudinal examination of the intrastate characteristics and interstate processes that affect the adoption of both controversial and noncontroversial rape law reforms. The results show that the adoption of partial reforms significantly decreases a state's likelihood of passing a stronger version of the reform only for controversial rape law reforms. Other factors, such as women's economic power and the interstate process of diffusion similarly affect both controversial and noncontroversial reforms. Thus, contrary to the idea that the process of diffusion operates differently for controversial reforms, the results indicate that spatial proximity negatively affects the adoption of both controversial and noncontroversial rape law reforms. These findings have important implications for theoretical explanations of legal change, research on rape law reforms, and social movement research and activism.

Toward a Theory of Compliance in State-Regulated Livelihoods: A Comparative Study of Compliance Motivations in Developed and Developing World Fisheries
Stig S. Gezelius and Maria Hauck

This article addresses the question of how states can best promote citizens' compliance with laws that regulate livelihoods. Based on ethnographic data from fishing communities in three countries—Norway, Canada, and South Africa—the article compares compliance motivations that exist under different socioeconomic and political conditions. The comparisons give rise to a typology of three compliance motivations: deterrence, moral support for the law's content, and the legislator's authority. This article then identifies three governable preconditions—enforcement, empowerment of citizens, and civic identity—that respectively explain these motivations. The article argues that the compliance discourse in a given type of state must be framed such that it includes at least the governable preconditions for compliance that have not been met in that state. Consequently, a functional compliance strategy would vary between different state types. The article thus questions the transferability of the developed world's compliance discourses to the developing world.

Tactical Balancing: High Court Decision Making on Politically Crucial Cases
Diana Kapiszewski

This article advances a new account of judicial behavior: the thesis of tactical balancing. Building on existing models of judicial decision making, the thesis posits that high court justices balance a discrete set of considerations—justices' ideologies, their institutional interests, the potential consequences of their rulings, public opinion, elected leaders' preferences, and law—as they decide important cases. Variation in a high court's balancing of those considerations as it decides different cases leads it to alternate between challenging and endorsing the exercise of government power. The way in which high courts carry out this “tactical balancing” reflects their broader strategy for prioritizing the different roles they can play in a polity, and thus has significant implications for the rule of law and regime stability in developing democracies. The thesis is illustrated through a detailed analysis of the Brazilian high court's rulings on cases concerning crucial economic policies (1985–2004).

Law & Society Review, June 2011: Volume 45, Issue 2