Law & Society Review 46(4)

Law & Society Review, December 2012: Volume 46, Issue 4

Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court
Xin He

How courts and judges in authoritarian regimes decide cases behind closed doors has rarely been studied, but it is critically important in comparative judicial studies. Primarily drawing on the minutes of the adjudication committee in a lower court in China, this article explores its operational patterns and decision-making process. The data suggest that among the criminal cases reviewed by the committee, very few were difficult or significant, but a relatively high percentage of the suggested opinions of the adjudicating judges was modified. In contrast, many civil cases reviewed were difficult to resolve but the committee offered little assistance. Overall the operation and decision-making of the committee were subsumed by the administrative ranking system inside the court and the authority of the court president was enormous. The analysis also demonstrates the limited role of the committee in both promoting legal consistency and resisting external influences. Instead of achieving its declared goals, the committee has degenerated into a device for both individual judges and committee members to shelter responsibility. The findings compel researchers to reevaluate the role of the adjudication committee in Chinese courts, and the relationship between judges and authoritarian regimes.

Pragmatic Resistance, Law, and Social Movements in Authoritarian States: The Case of Gay Collective Action in Singapore
Lynette J. Chua

This article draws from a qualitative study of Singapore's gay movement to analyze how gay organizing occurs in authoritarian states, and where and how law matters. Singapore's gay activists engage in “strategic adaptation” to deploy a strategy of pragmatic resistance that involves an interplay among legal restrictions and cultural norms. Balancing the movement's survival with its advancement, they shun direct confrontation, and avoid being seen as a threat to the existing political order. As legal restrictions and as a source of legitimacy, law correspondingly oppresses sexual conduct and civil-political liberties, and culturally delegitimizes dissent. However, when activists mount pragmatic resistance at and through law, it also matters as a source of contestation. Further, law matters as a trade-off between reifying the existing order in exchange for survival and immediate gains. Yet, by treating law as purely tactical, these activists arguably end up de-centering law, being pragmatically unconcerned with whether they are ideologically challenging or being co-opted by it.

Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America
Gabriel L. Negretto

Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.

Translating Human Rights of the “Enemy”: The Case of Israeli NGOs Defending Palestinian Rights
Daphna Golan and Zvika Orr

This article explores the practices, discourses and dilemmas of the Israeli human rights NGOs that are working to protect and promote the human rights of Palestinians in the Occupied Territories. This case can shed light on the complex process of “triangular translation” of human rights, which is distinct from other forms of human rights localization studied thus far. In this process, human rights NGOs translate international human rights norms on the one hand, and the suffering of the victims on the other, into the conceptions and legal language commonly employed by the state that violates these rights. We analyze the dialectics of change and reproduction embedded in the efforts of Israeli activists to defend Palestinian human rights while at the same time depoliticizing their work and adopting discriminatory premises and conceptions hegemonic in Israeli society. The recent and alarming legislative proposals in Israel aimed at curtailing the work of human rights NGOs reinforce the need to reconsider the role of human rights NGOs in society, including their depoliticized strategies, their use of legal language and their relations with the diminishing peace movement.

The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London
Ashley T. Rubin

What were the consequences of penal transportation to the New World for eighteenth-century British criminal justice? Transportation has been described by scholars as either a replacement of the death penalty responsible for its decline, or a penal innovation responsible for punishing a multitude of people more severely than they would have been punished before. Using data from the Old Bailey Sessions Papers and the Parliamentary Papers, this study examines sentencing and execution trends in eighteenth-century London. It takes advantage of the natural experiment provided by the passage of the 1718 Transportation Act that made transportation available as a penal sentence, thus enabling one to assess the “effect” of transportation on penal trends. This study finds that the primary consequence of the adoption of transportation was to make the criminal justice net more dense by subjecting people to a more intense punishment. While it was also associated with a small decline in capital sentences for some types of offenders, the adoption of transportation was also associated with an increase in the rate at which condemned inmates were executed. The study closes with a discussion of the conditions that may lead to law's unintended consequences, including the mesh-thinning consequences observed here.

Performing Regulation: Transcending Regulatory Ritualism in HIV Clinics
Carol A. Heimer and J. Lynn Gazley

Sociolegal scholars suggest that regulatory encounters often are occasions for displaying a surface compliance decoupled from day-to-day practice. Yet ethnographic data from five highly regulated HIV clinics show that regulatory encounters open opportunities both for ritualism and—surprisingly—for transcending ritualism. Using a theatrical analogy, we argue that improv performance is the technology that enables regulatory inspectors and clinic staff to transcend ritualism. As regulatory encounters unfold, clinics' carefully prepared performances sometimes change into more cooperative interactions where inspectors and regulatees hash out details about how rules will be applied and even work together on reports for the regulators' supervisors. By “performing together,” regulatory inspectors gain access to the clinic's backstage where they can assess clinic workers' deeper conformity to ethical and scientific norms. But such joint performances are less likely where cultural divides and material scarcity make it difficult for clinic staff to gain inspectors' trust.

Executive Branch Socialization and Deference on the U.S. Supreme Court
Rob Robinson

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model.