Law & Society Review 49(3)

Law & Society Review, September 2015: Volume 49, Issue 3

Contesting Legality in Authoritarian Contexts: Food Safety, Rule of Law and China's Networked Public Sphere
Ya-Wen Lei and Daniel Xiaodan Zhou

Since the introduction of the Internet, China's networked public sphere has become a critical site in which various actors compete to shape public opinion and promote or forestall legal and political change. This paper examines how members of an online public, the Tianya Forum, conceptualized and discussed law in relation to a specific event, the 2008 Sanlu milk scandal. Whereas previous studies suggest the Chinese state effectively controls citizens' legal consciousness via propaganda, this analysis shows that the construction of legality by the Tianya public was not a top-down process, but a complex negotiation involving multiple parties. The Chinese state had to compete with lawyers and outspoken media to frame and interpret the scandal for the Tianya public and it was not always successful in doing so. Data show further how the online public framed the food safety incident as indicative of fundamental problems rooted in China's political regime and critiqued the state's instrumental use of law.

State Transformation and the Role of Lawyers: The WTO, India, and Transnational Legal Ordering
Gregory Shaffer, James Nedumpara and Aseema Sinha

This article explains the impact of India's engagement with the law of the World Trade Organization (WTO) on both the Indian state and on the WTO itself. In each case, it explains the role of Indian lawyers within the larger transnational context. In engaging with globalization and the WTO, India has transformed itself. The Indian state has moved toward a new developmental state model involving a stronger emphasis on trade, greater government transparency, and the development of public-private coordination mechanisms in which the government plays a steering role. The analysis shows that it has done so not as an autonomous policy choice, but rather in light of the global context in which the WTO and WTO law form an integral part. Reciprocally, the article displays the ways that India has built legal capacity to attempt to shape the construction, interpretation, and practice of the trade legal order. Indian private lawyers play increasing roles, although they remain on tap, not on top.

The Effects of Civil Hate Speech Laws: Lessons from Australia
Katharine Gelber and Luke McNamara

This article examines the effects of hate speech laws in Australia. Triangulating data from primary and secondary sources, we examine five hypothesized effects: whether the laws provide a remedy to targets of hate speech, encourage more respectful speech, have an educative or symbolic effect, have a chilling effect, or create “martyrs.” We find the laws provide a limited remedy in the complaints mechanisms, provide a framework for direct community advocacy, and that knowledge of the laws exists in public discourse. However, the complaints mechanism imposes a significant enforcement burden on targeted communities, who still regularly experience hate speech. We find a reduction in the expression of prejudice in mediated outlets, but not on the street. We find no evidence of a chilling effect and we find the risk of free speech martyrs to be marginal. We draw out the implications of these findings for other countries.

Trailblazers and Those That Followed: Personal Experiences, Gender, and Judicial Empathy
Laura P. Moyer and Susan B. Haire

This article investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school between 1954 and 1975 and disappears when more recent law school cohorts of men and women judges are compared. These results suggest that the effect of gender as a trait is tied to the role of formative experiences with discrimination.

Making Rights Work: Legal Mobilization at the Agency Level
Jennifer Woodward

This article discusses how McCann's theory on legal mobilization and social change is generalizable to the legal decisions of agencies. I demonstrate how the Equal Employment Opportunity Commission (EEOC) routinely delayed and denied Title VII employment rights on the basis of sex and how this resulted in the formation of the National Organization for Women (NOW) to ensure that the sex provision of Title VII was enforced. The article also discusses the influence of NOW in shaping the first years of Title VII law and the organization's role in reversing EEOC decisions denying rights under the sex provision of the law.

The Electronic Pillory: Social Time and Hostility Toward Capital Murderers
Scott Phillips and Mark Cooney

In early modern Europe, popular hostility toward criminals could be expressed through the use of the pillory (a device in which offenders were restrained and publicly displayed). Modern electronic communications have facilitated the emergence of contemporary versions of the pillory. One such example is prodeathpenalty.com, a Web site created by supporters of capital punishment that permits members to post comments about particular executions. Most such comments are markedly hostile toward the convicted offender. But is the hostility random or patterned? A new theory by Donald Black predicts that hostility will increase with changes in social space, or the movement of social time. Testing Black's theory, we find that the number of online comments hostile to the killer and supportive of the execution increases with the degree to which the murder was a movement of relational, vertical, and cultural time. Moving beyond the electronic pillory, we argue that Black's theory has much to offer to law and society scholars.

Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?
Brandon L. Bartels, Christopher D. Johnston and Alyx Mark

Do legal elites—lawyers admitted to federal appellate bars—perceive the Supreme Court as a “political” institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near-universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in “global delegitimization” of the institution itself.

Law & Society Review 49(1)

Law & Society Review, March 2015: Volume 49, Issue 1

Shifting Frames, Vanishing Resources, and Dangerous Political Opportunities: Legal Mobilization among Displaced Women in Colombia
Julieta Lemaitre and Kristin Bergtora Sandvik

How can we make sense of the use of legal claims and tactics under conditions of internal displacement and armed conflict? This article argues that in violent contexts mobilization frames are unstable and constantly shifting, resources tend to vanish, and political opportunities often imply considerable physical danger. It is grounded on a three-year, multimethod study that followed internally displaced women's organizations as they demanded government assistance and protection in Colombia. Through detailed examples of specific cases, this article illustrates the constraints of legal mobilization in violent contexts, as well as different social movement strategies of resistance. It, thus, contributes to decentering theories of social movement uses of law that tend to be based on the legal cultures and institutions of industrialized liberal democracies, rather than on those of the Global South, and hence, tend to exclude violence.

The Real Dirt on Responsible Agricultural Investments at Rio+20: Multilateralism versus Corporate Self-Regulation
Birgit Müller and Gilles Cloiseau

This article uses a fine-grained anthropological and linguistic analysis to expose the routine negotiating practices and power games behind the conclusion of paragraph 115 on responsible agricultural investments during the Rio+20 Conference in June 2012. These negotiations are simultaneously a telling example for the quotidian stuff of international governance—an arena in which much larger forces are played out through small language-based tactics, and they are representative of an exceptional moment when global multilateral policy making in the frame of the United Nations was challenged by the legitimation of private authority and corporate self-regulation. Combining anthropological and linguistic methods, the article focused on language use, analyzing the ways in which people interact in a highly coded language, how they “perform,” by exploring, playing with, and twisting the grammatical structures of the spoken language. At issue is the large-scale appropriation of agricultural land all over the world by multinational corporations, investment funds, and foreign governments. 

115. We reaffirm the important work and inclusive nature of the Committee on World Food Security (CFS), including through its role in facilitating country-initiated assessments on sustainable food production and food security, and we encourage countries to give due consideration to implementing the CFS Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. We take note of the on-going discussions on responsible agricultural investment in the framework of the CFS, as well as the Principles for Responsible Agricultural Investment (PRAI).

Gendered Genocide: The Socially Destructive Process of Genocidal Rape, Killing, and Displacement in Darfur
Joshua Kaiser and John Hagan

Accounts of mass atrocities habitually focus on one kind of violence and its archetypal victim, inviting uncritical, ungendered misconceptions: for example, rape only impacts women; genocide is only about dead, battle-aged men. We approach collective violence as multiple, intersecting forms of victimization, targeted and experienced through differential social identities, and translated throughout communities. Through mixed-method analyses of Darfuri refugees' testimonies, we show (a) gendered causes and collective effects of selective killing, sexual violence, and anti-livelihood crimes, (b) how they cause displacement, (c) that they can be genocidal and empirically distinct from nongenocidal forms, (d)how the process of genocidal social destruction can work, and (e) how it does work in Darfur. Darfuris are victimized through gender roles, yielding a gendered meaning-making process that communicates socially destructive messages through crimes that selectively target other genders. The collective result is displacement and destruction of Darfuris' ways of life: genocide.

Classing Sex Offenders: How Prosecutors and Defense Attorneys Differentiate Men Accused of Sexual Assault
Jamie L. Small

As public awareness of and concern about sexual victimization has increased in recent decades, stigmatization of sex offenders has also increased considerably. Contemporary sex offender policies transform discrete criminal behaviors into lifelong social identities. Although there is much debate about the efficacy and constitutionality of such policies, we know little about how the category of “sex offender” is constituted in the first place. In this article, I reveal how prosecutors and defense attorneys construct sex offenders, not as monsterous or racialized as is commonly thought, but as “lower class” men. This analysis is based on 30 in-depth interviews with prosecutors and defense attorneys in Michigan. These legal actors wield disproportionate power in defining the boundaries of criminal behaviors and individuals. That they associate sexual criminality with lower class men demonstrates yet another way that class-based inequalities are reproduced in the legal field.

The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor
Hillary L. Berk

Despite a rich literature in law and society embracing contracts as exchange relations, empirical work has yet to consider their emotional dimensions. I explore the previously unmapped case of surrogacy to address the interface of law and emotions in contracting. Using 115 semistructured interviews and content analyses of 30 surrogacy contracts, I explain why and how lawyers, with the help of matching agencies and counselors, tactically manage a variety of emotions in surrogates and intended parents before, during, and after the baby is born. I establish that a web of “feeling rules” concerning lifestyle, intimate contact, and future relationships are formalized in the contract, coupled with informal strategies like “triage,” to minimize attachment, conflicts, and risk amidst a highly unsettled and contested legal terrain. Feeling rules are shared and embraced by practitioners in an increasingly multijurisdictional field, thereby forging and legitimating new emotion cultures. Surrogacy offers a strategic site in which to investigate the legalization of emotion—a process that may be occurring throughout contemporary society in a variety of exchange relations.

Internalizing Legal Norms: An Investigation into the Legitimacy of Payback Killings in the New Guinea Islands
Shaun Larcom

This article investigates beliefs concerning the legitimacy of the traditional customary practice of payback in the New Guinea Islands; a practice that has been illegal for more than a century. The practice of payback is described and contextualized and a conceptual framework of norm internalization in a legal transplant society is developed. The empirical results highlight a stark urban–rural divide in attitudes. Yet, against expectations, those in urban environments (and in closer proximity to the state criminal law) are more likely to agree with the use of payback. An expected relationship is found between the ability to speak English and not agreeing with the use of payback. The empirical results suggest that the criminal law may be a weak force and that non-legal channels may be more effective in transforming society.

Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability
Banks Miller, Linda Camp Keith and Jennifer S. Holmes

How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge-specific reputation of an attorney.

Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation
Katherine Beckett and Heather Evans

In recent decades, authorities have adopted a number of programs that tether the criminal and immigration enforcement apparatuses in novel ways. This mixed methods case study assesses the impact of such programs on local criminal justice processes and outcomes in King County, Washington. Although the empirical research on the effects of such programs is scant, the emerging literature on legal hybridity suggests that the enmeshment of the criminal and immigration systems is likely to enhance the state's power to detain and punish. The quantitative results support this hypothesis: non-citizens flagged by immigration authorities stay in jail significantly longer than their similarly situated counterparts. Qualitative focus group interviews with prosecuting and defense attorneys identify four key mechanisms by which Immigration Customs and Enforcement detainers alter the incentive structure, impact decisionmaking, and extend jail stays for non-citizens. Together, these findings suggest that immigration law and the threat of deportation now cast a long shadow over local as well as federal criminal proceedings, and enhance penal pain for non-citizens. Implications of these findings for the “crimmigration” literature and research on the effect of citizenship status on criminal justice outcomes are discussed.

Law & Society Review 48(4)

Law & Society Review, December 2014: Volume 48, Issue 4

The Humdrum of Legality and the Ordering of an Ethic of Care
Prashan Ranasinghe

This paper provides an ethnographic analysis of the ways that employees of an emergency shelter create and maintain order. The paper applies the framework of legal consciousness to explicate the practices of the employees that amount to “private ordering.” The employees administer the rules of the shelter in the context of an “ethic of care,” but one that is outside the purview of formal law. This ethic, however, is polysemic, and the employees, therefore, must adopt diverse styles based on their understandings of their professional roles regarding the needs of the clients. The practices of two employees are highlighted in detail, whose strategies in applying and maintaining adherence to shelter rules are at the opposite ends of the spectrum. Both make decisions in a somewhat spontaneous and, more importantly, inconsistent, fashion. Despite the complications that arise from applying the rules as such, the employees tolerate, even laud and celebrate, these methods. While this system of private ordering has little resemblance to the ordered, consistent, and rigid application of formal law, it allows the employees to administer diverse strategies of ethics of care and shape practices to fit their professional roles and the complex exigencies of an emergency shelter. The paper locates the extant private ordering not in the law, nor in its shadow—assumed to be preconditions—but outside or beyond them. Given that this ordering is founded against the law—it is not law, nor law-like and has no desire to so be—the paper suggests that it can be thought of as private ordering proper and lays the framework for theorization that accounts for its instrumental and symbolic dimensions.

Trapped in Resistance: Collective Struggle through Welfare Fraud in Israel
Shiri Regev-Messalem

This paper offers a qualitative empirical examination of the noncompliance of Israeli female welfare recipients with welfare laws and authorities. The paper demonstrates that their behavior, defined as “welfare fraud” by the law, is a limited form of collective resistance to the Israeli welfare state. Although the acts of welfare fraud that the women in my study engaged in entail a political claim against the state, the relationship between these acts and notions of collectivity is very constricted in form. The women's collectivity is shown to be constrained by the welfare authorities' invasive and pervasive investigation practices and methods. Due to fear of disclosure to the authorities, the women emerged as deliberately isolating themselves from their immediate environment and potential members of their like-situated collective. This weakens the connection between the women's acts of resistance and their collectivity, and prevents their acts of resistance from driving social change, trapping them in their harsh conditions and existence.

The Loss of Property Rights and the Construction of Legal Consciousness in Early Socialist Romania (1950–1965)
Mihaela Şerban

What happens to legal and rights consciousness when rights previously protected are taken away? In this article, I investigate the process of contesting urban housing nationalization in Romania in the early 1950s in order to understand how the loss of property rights led to new hybrid types of legal consciousness. I find that the construction of socialist legal consciousness was grounded in the interaction between the legally constituted selves of former owners and state bureaucrats who drew from distinct legal and property rights ideologies. This process underscores continuities in legal consciousness even under drastic regime changes, which in turn has implications for the construction of new hegemonic legalities and power regimes. The article is based on extensive document and archival research.

Justice, Context, and Violence: Law Enforcement Officers on Why They Torture
Rachel Wahl

How do police explain their support for torture? Findings from 12 months of fieldwork with police in India complicate previous researchers’ claims that violence workers tend to morally disengage and blame circumstances for their actions. The officers in this study engage in moral reflection on torture, drawing on their beliefs about human nature and justice to explain their support for it. They admit that they use torture more widely than their own conceptions of justice allow, but see this as an imperfect implementation of their principles rather than as a violation of them. Previous research on the spread of human rights norms has focused on how these norms can be adapted to the local beliefs that support them, rather than on understanding the beliefs that conflict with human rights. I argue that illuminating the self-understanding of state actors who support or engage in torture is crucial to building theory on why such violence occurs, as well as to designing interventions to prevent it.

Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority
James L. Gibson, Milton Lodge and Benjamin Woodson

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy—the robe, the gavel, the cathedral-like court building—in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court, (2) has differing effects depending upon levels of preexisting institutional support, and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama
Brian K. Landsberg

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.

Scientizing Food Safety: Resistance, Acquiescence, and Localization in India
Jessica Epstein

Since the mid-1990s, formal scientific risk management has been codified at all levels of food safety governance in affluent states: firm-level standards, national regulation, and international law. Developing countries' access to affluent importers and power in international standard-setting fora now hinges on their scientific capacity. This article explores the consequences of these developments in India, which moved quickly from resistance to acquiescence, and then later to mobilization around narratives of scientific risk management's local benefits. The case suggests a two-stage model of scientization among developing countries: (1) coercive and competitive mechanisms drive adoption of science-based governance models, and (2) as local actors mobilize to meet foreign demands, they attach their own interests and agendas to science-based reforms. The outcome is a set of rational myths about the benefits of scientization. The article draws on content analysis of organizational, policy, and news documents and a small set of interviews with highly placed pubic officials and industry representatives.

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions
Alicia Uribe, James F. Spriggs II and Thomas G. Hansford

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation-of-powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.

Public Perceptions of the Legitimacy of the Law and Legal Authorities: Evidence from the Caribbean
Devon Johnson, Edward R. Maguire and Joseph B. Kuhns

Research on procedural justice and legitimacy has expanded greatly across the social sciences in recent years. The process-based model of regulation, which links people's assessments of procedural justice and legitimacy to their compliance with the law and legal authorities, has become particularly influential in criminology and sociolegal studies. A review of the previous research on perceived legitimacy highlights two important features. First, legitimacy has been conceptualized and measured in many different ways. Second, most of the research on legitimacy has focused on only a handful of developed nations. Using survey data from Trinidad and Tobago, this article examines the conceptualization and measurement of the perceived legitimacy of the law and legal authorities. The findings indicate that some of the prominent conceptual and measurement models used in previous research are not empirically valid in the Trinidadian context. The implications of the results for conceptualization, theory, and future research are discussed.

Law & Society Review 48(3)

Law & Society Review, September 2014: Volume 48, Issue 3

Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight
Kathryne M. Young

Past legal consciousness research has revealed a great deal about what individuals think and do with regard to law, but less attention has been paid to the social processes that underpin these attitudes, beliefs, and actions. This article focuses particularly on a “second-order” layer of legal consciousness: people's perceptions about how others understand the law. Ethnographic observations and in-depth interviews with cockfighters in rural Hawaii reveal how law enforcement practices not only affect cockfighting rituals, but are embedded within them. Police practices and informal rules work in concert to shape fighters' second-order beliefs. These beliefs have implications for participants' understanding of central concepts, including order, disorder, and illegality. Examining legal consciousness from a second-order perspective also underscores that notions of legitimacy are constantly created and recreated. Recognizing legitimacy's inherently relational nature helps us understand how experiences of law are synthesized into beliefs—for example, when an unusual police action directed toward a subgroup of fighters compromised the law's legitimacy for them. Foregrounding the relational nature of legal consciousness offers scholars a means to better understand and operationalize the dynamic nature of human relationships to law.

Restorative Justice, Policing and Insurgency: Learning from Pakistan
John Braithwaite and Ali Gohar

Pakistan state law and Taliban rule of Sharia law are at different ends of a politico-legal spectrum. They share advocacy of one system of law and attraction to eradication of alternatives. Muslahathi Committees in Pakistan are used to explore legal pluralism, hybrid institutions that allow deliberative democracy to seek workable responses to injustice. Formal and traditional systems can show mutual respect and check each other. On the basis of purely qualitative evidence, it is argued that Muslahathi Committees are restorative justice programs that sustainably reduce revenge violence, make a contribution to preventing Pakistan from spiraling into civil war, and assist a police force with low legitimacy to become somewhat more accountable to local civil society. These contributions are limited, but could be more significant with modest investment in human rights and gender awareness training to control abuses and increase accountability. The ruthless, murderous, divisive politics of policing and restorative justice in Pakistan seems a least likely case for deliberative democracy to work. In limited ways it does.

Leprosy, Legal Mobilization, and the Public Sphere in Japan and South Korea
Celeste L. Arrington

This article addresses the question of what gets transmitted in cross-national diffusion and why. It does so by analyzing the spread of rights-based activism from Japanese to South Korean leprosy (Hansen's disease) survivors in the 2000s. Previous scholarship would predict extensive diffusion of mobilizing frames and tactics, especially since Korean lawyers learned an effective legal mobilization template while working with Japanese lawyers to win compensation for Korean leprosy survivors mistreated by Japanese colonial authorities before 1945. Yet the form of subsequent activism by Korean leprosy survivors for redress from the Korean government differed from the original Japanese model. This case suggests the need for scope conditions on theories about isomorphism and the agency of brokers. In particular, it draws attention to how the structure of a country's public sphere—and especially its legal profession, news media, and activist sector—affects the feasibility of imported innovations related to activism and legal mobilization.

How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?
Scott Barclay and Daniel Chomsky

In this article, we begin to respond to the deceptively simple question: How do cause lawyers decide when and where to litigate on behalf of their cause? We consider the choice of location and timing faced by cause lawyers when more than one jurisdiction evinces a suitable legal environment for pursuing litigation on their cause. To consider this choice, we use evidence from the timing and actions of cause lawyers in the marriage equality cases in the United States from January 1990 through December 2004. And, we show the value in utilizing methods that are relatively novel in cause lawyering research—statistical models—to consider the apparent commonalities, beyond a suitable legal environment, across locations and time periods that might prompt cause lawyers into action.

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court
Robert J. Hume

When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.

State Solicitors General, Appellate Expertise, and State Success Before the U.S. Supreme Court
Ryan J. Owens and Patrick C. Wohlfarth

This article examines how institutional design leads state governments to win their cases before the U.S. Supreme Court. We analyze whether states are more likely to prevail on the merits when they create a formal solicitor general office and have an attorney from that office argue their cases before the Court. We employ an analytical matching approach and find that attorneys from state solicitor general offices are significantly more likely to win their cases compared to other kinds of state attorneys. Accordingly, if states prioritize victory before the Court, they should consider creating state solicitor general offices and granting those solicitors general the authority to control their appellate litigation.

Law & Society Review 48(2)

Law & Society Review, June 2014: Volume 48, Isue 2

2013 LSA Presidential Address

The Unbearable Lightness of Rights: On Sociolegal Inquiry in the Global Era
Michael McCann

Commentary

Of Rights and Favors
David Nelken

Inequality and Rights: Commentary on Michael McCann's “The Unbearable Lightness of Rights”
Sally Engle Merry

The Availability of Law Redux: The Correlation of Rights and Duties
Susan S. Silbey

Articles

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs
Neve Gordon

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.

The Supreme Court and the Social Conception of Abortion
Vincent Vecera

Skeptics of Supreme Court power have pointed to abortion policy as an example of surprising limits on the justices' power to change society. I argue, however, that the Court's ruling in Roe v. Wade played a critical role in transforming how Americans think and talk about abortion. I develop an account of the development of the social conception of abortion from a critical reading of twentieth century American journalism and then test some predictions of that account through the use of quantitative content analyses. I conclude by discussing some implications for the study of judicial politics and public constitutionalism.

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes
Michael C. Campbell

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long-term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.

Legal Change and Sentencing Norms in the Wake of Booker: The Impact of Time and Place on Drug Trafficking Cases in Federal Court
Mona Lynch and Marisa Omori

The federal sentencing guidelines have lost some authoritative force since the U.S. Supreme Court ruled in a series of recent cases that the guidelines are advisory, rather than presumptive, in determining criminal sentences. While these court decisions represent a dramatic legal intervention, sociolegal scholarship suggests that organizational norms are likely to change slowly and less dramatically than the formal law itself. The research reported here looks specifically at the consequences of such legal transformations over time and across locale, using multilevel analysis of U.S. Sentencing Commission sentence outcome data from 1993 to 2009. Our findings suggest that districts vary considerably from each other in sentencing practices over the time period studied, and that there is relative within-district stability of outcomes within districts over time, including in response to the Supreme Court's mandates. We also find that policy change appears to influence the mechanisms by which cases are adjudicated in order to reach normative outcomes. Finally, we find that the relative district-level reliance upon mandatory minimums, which were not directly impacted by the guidelines changes, is an important factor in how drug trafficking cases are adjudicated. We conclude that local legal practices not only diverge in important ways across place, but also become entrenched over time such that top-down legal reform is largely reappropriated and absorbed into locally established practices.

The New Face of Legal Inequality: Noncitizens and the Long-Term Trends in Sentencing Disparities across U.S. District Courts, 1992–2009
Michael T. Light

In the wake of mass immigration from Latin America, legal scholars have shifted focus from racial to ethnic inequality under the law. A series of studies now suggest that Hispanics may be the most disadvantaged group in U.S. courts, yet this body of work has yet to fully engage the role of citizenship status. The present research examines the punishment consequences for non-U.S. citizens sentenced in federal courts between 1992 and 2009. Drawing from work in citizenship studies and sociolegal inequality, I hypothesize that nonstate members will be punished more severely than U.S. citizens, and any trends in Hispanic ethnicity over this period will be linked to punitive changes in the treatment of noncitizens. In line with this hypothesis, results indicate a considerable punishment gap between citizens and noncitizens—larger than minority-white disparities. Additionally, this citizenship “penalty” has increased at the incarceration stage, explaining the majority of the increase in Hispanic-white disparity over the past two decades. As international migration increases, these findings call for greater theoretical and empirical breadth in legal inequality research beyond traditional emphases, such as race and ethnicity.

Law & Society Review 48(1)

Law & Society Review, March 2014: Volume 48, Issue 1

Karl Renner and (Intellectual) Property—How Cognitive Theory Can Enrich a Sociolegal Analysis of Contemporary Copyright
Stefan Larsson

This article deals with copyright regulation meeting the quite rapid societal changes associated with digitization, and it does so by reinterpreting Karl Renner's classical texts in the light of contemporary cognitive theory of conceptual metaphors and embodiment. From a cognitive theory perspective, I focus on the notion that the legal norms only appear to be unchanged—the Renner distinction between form and function. This includes social norms, technological development, and changes in social structures in general, which create a social and cognitive reinterpretation of law. This article, therefore, analyzes the contemporary push for copyright as property, which I relate to historical claims for copyright as property as well as de facto legal revisions in intellectual property faced with the challenges of digitization. Of particular relevance here is what Renner described in terms of property as an “institution of domination and control,” and thus the increased measures for control that are added to a digital context in the name of copyright.

The (Dis)Advantage of Certainty: The Importance of Certainty in Language
Pamela C. Corley and Justin Wedeking

How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal–agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court's opinion increases, the lower courts are more likely to positively treat the Court's decision. We then discuss the implications of our findings for using certainty in a broader context.

The Impact of Supreme Court Activity on the Judicial Agenda
Douglas Rice

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.

The Costs and Benefits of American Policy-Making Venues
Aaron J. Ley

Many law and policy scholars consider judges inimical to good public policymaking, and the criticisms they level on the judiciary implicitly reflect some of the concerns raised by Alexander Bickel and other critics. Despite the charge by critics that judges are institutionally ill equipped to participate in the policy-making process and that legal processes are costly, there are reasons to believe otherwise. This article uses field interviews and three case studies of an environmental dispute in the Pacific Northwest to show that the judiciary can be an institutional venue that enhances public input, can be more inclusive than other venues, and produces positive-sum outcomes when other venues cannot. The findings also suggest that legislative and agency policymaking are just as contentious and costly as judicial policy-making processes.

Jurisdiction, Crime, and Development: The Impact of Public Law 280 in Indian Country
Valentina Dimitrova-Grajzl, Peter Grajzl and A. Joseph Guse

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments and increased the extent of nontribal law enforcement in selected parts of Indian country. Where enacted, the law fundamentally altered the preexisting legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socioeconomic outcomes. The law's controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law's endogenous nature. We examine the law's impact on crime and on economic development in U.S. counties with significant American-Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law's politico-historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law's adverse impact is robust and noteworthy in magnitude.

Unfounding Sexual Assault: Examining the Decision to Unfound and Identifying False Reports
Cassia Spohn, Clair White and Katharine Tellis

One of the most controversial—and least understood—issues in the area of sexual violence is the prevalence of false reports of rape. Estimates of the rate of false reports vary widely, which reflects differences in way false reports are defined and in the methods that researchers use to identify them. We address this issue using a mixed methods approach that incorporates quantitative and qualitative data on sexual assault cases that were reported to the Los Angeles Police Department (LAPD) in 2008 and qualitative data from interviews with LAPD detectives assigned to investigate reports of sexual assault. We found that the LAPD was clearing cases as unfounded appropriately most, but not all, of the time and we estimated that the rate of false reports among cases reported to the LAPD was 4.5 percent. We also found that although complainant recantation was the strongest predictor of the unfounding decision, other factors indicative of the seriousness of the incident and the credibility of the victim also played a role. We interpret these findings using an integrated theoretical perspective that incorporates both Black's sociological theory of law and Steffensmeier, Ulmer, and Kramer's focal concerns perspective.

Do Rich and Poor Behave Similarly in Seeking Legal Advice? Lessons from Taiwan in Comparative Perspective
Kuo-Chang Huang, Chang-Ching Lin and Kong-Pin Chen

A central concern of access-to-justice studies is whether the socioeconomically disadvantaged individuals can obtain effective assistance in dealing with their legal problems. Using the newly collected data from the 2011 Taiwan Survey, this article examines Taiwanese people's advice-seeking behavior in general and explores the effect of income in particular. This article finds that income had a significantly positive correlation with the likelihood of obtaining legal advice, but it has no impact on obtaining nonlegal advice. By contrast, education had little bearing on the decision to obtain legal advice, but it had a positive influence on seeking nonlegal advice. This article argues that although the gravity of problem was more influential than income on obtaining legal advice, the effect of income should not be easily dismissed. Moreover, the contrasting effect of education on obtaining nonlegal advice strongly suggests that its use was determined by people's knowledge of its existence and capability of accessing such service. To improve the disadvantaged's access to justice, care should be taken not only to increase publicly funded legal advice services but also to enhance the public's awareness of their availability.

Law & Society Review 47(4)

Law & Society Review, December 2013: Volume 47, Issue 4

Above the Roof, Beneath the Law: Perceived Justice behind Disruptive Tactics of Migrant Wage Claimants in China
Xin He, Lungang Wang and Yang Su

The way in which citizens in developing countries conceptualize legality is a critical but understudied question for legal consciousness and legal mobilization studies. Drawing on participatory observations and extensive interviews from western China, this article explores the subjective interpretations of migrant wage claimants on law and justice behind their disruptive actions. Their perception of justice differs starkly from what the law stipulates as target, evidence and proper procedures. Who shall be held responsible? What constitutes evidence? When shall they be paid? How much? Their perceptions also differ from the attitude “against the law” found among members from disadvantaged social groups in the United States. The Chinese case of legal perception is shaped by the moral precepts ingrained in the culture, and more importantly, by the lopsided relationship between migrant workers and the political and business elite. It thus points to the daunting barriers in channeling the ever-growing number of social conflicts into court.

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”
Colin S. Hawes and Shuyu Kong

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top-rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.

Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics
Tamir Moustafa

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.

Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal
Bettina Shell-Duncan, Katherine Wander, Ylva Hernlund and Amadou Moreau

Although the international community has recently promoted legislation as an important reform strategy for ending female genital cutting (FGC), there exist divergent views on its potential effects. Supporters argue that legal prohibition of FGC has a general deterrent effect, while others argue legislation can be perceived as coercive, and derail local efforts to end the practice. This study examines the range of responses observed in rural Senegal, where a 1999 anti-FGC law was imposed on communities in which the practice was being actively contested and targeted for elimination. Drawing on data from a mixed-methods study, we analyze responses in relation to two leading theories on social regulation, the law and economics and law and society paradigms, which make divergent predictions on the interplay between social norms and legal norms. Among supporters of FGC, legal norms ran counter to social norms, and did little to deter the practice, and in some instances incited reactance or drove the practice underground. Conversely, where FGC was being contested, legislation served to strengthen the stance of those contemplating or favoring abandonment. We conclude that legislation can complement other reform strategies by creating an “enabling environment” that supports those who have or wish to abandon FGC.

What Happens to Law in a Refugee Camp?
Elizabeth Holzer

How do people living in a refugee camp engage with legal practices, discourses, and institutions? Critics argue that refugee camps leave people in “legal limbo” depriving them of the “right to have rights” despite the presence of international humanitarian actors and the entitlements enshrined in international law. For that reason, refugee camps have become a highly visible symbol of failed human rights campaigns. In contrast, I found in an ethnography of the Buduburam Refugee Camp in Ghana, West Africa, that although people living as refugees faced chronic insecurity and injustice, they engaged extensively with several different facets of the law. I illuminate three interrelated dimensions of their experiences: (1) their development as international legal subjects; (2) their alienation from domestic legal institutions; and (3) their agency within the legal field. The article contributes to the research agenda on law in humanitarian settings an empirically grounded account of the subjective dimensions of legal alienation and mobilization in a refugee camp. More broadly, it contributes to international human rights debates by theorizing a mixed outcome of international human rights campaigns: the emergence of wards of international law, people deeply embedded in the international legal system, but alienated from local law.

Human Rights Prosecutions and the Participation Rights of Victims in Latin America
Verónica Michel and Kathryn Sikkink

Since the 1980s, there has been a significant rise in domestic and international efforts to enforce individual criminal accountability for human rights violations through trials, but we still lack complete explanations for the emergence of this trend and the variation observed in the use of human rights prosecutions in the world. In this article, we examine the role that procedural law has had in allowing societal actors to influence in this rising trend for individual criminal accountability. We do this by focusing on participation rights granted to victims, such as private prosecution in criminal cases. Based on an exploration of an original database on human rights prosecutions in Latin America and fieldwork research in three countries, we argue that private prosecution is the key causal mechanism that allows societal actors to fight in domestic courts for individual criminal accountability for human rights violations.

Addition by Subtraction? A Longitudinal Analysis of the Impact of Deportation Efforts on Violent Crime
Jacob I. Stowell, Steven F. Messner, Michael S. Barton and Lawrence E. Raffalovich

Contemporary criminological research on immigration has focused largely on one aspect of the immigration process, namely, the impact of in-migration (i.e., presence or arrival) of foreign-born individuals on crime. A related but understudied aspect of the immigration process is the impact that the removal of certain segments of the foreign-born population, and specifically undocumented or deportable aliens, has on aggregate levels of criminal violence. In an effort to cast new light on the association between forced out-flows of immigrants and crime, we begin with descriptive analyses of patterns of deportation activity across the continental United States over an eleven-year period (1994–2004). We then examine the relationship between deportation activity and violent crime rates in a multilevel framework wherein Metropolitan Statistical Areas (MSAs) are situated within border patrol sectors. The results of dynamic regression modeling indicate that changing levels of deportation activity are unrelated to changing levels of criminal violence for the sample of MSAs for the national at large. However, we also detect significant interactions by geographic location for selected violent offenses. For MSAs within sectors along the Mexican border, the deportation measure exhibits a significant negative effect on one indicator of criminal violence—the aggravated assault rate. For MSAs within non-border sectors, the effect of the deportation measures is significantly positive for the violence crime index and the aggravated assault rate. Overall, our analyses indicate that the relationship between deportation and criminal violence is complex and dependent on local context.

The Hand of the Ancestors: Time, Cultural Production, and Intellectual Property Law
Boatema Boateng

In successfully lobbying for the expansion of the copyright protection term, culture industries in the United States have used one of the temporal dimensions of intellectual property law to strengthen their control over the circulation of cultural goods. There is another less obvious way that time factors into the regulation of cultural products, and this has to do with the modes of temporality within which those products are made and their circulation regulated. In Ghana, where certain cultural products are protected as “folklore” under copyright law, cultural goods from one kind of temporality enter a regulatory framework that belongs to another. In this article, I examine these two ways of organizing time and argue that differences in ways of conceptualizing time also factor into the exercise of power over cultural products. I further argue that the Ghanaian case provides resources for radically rethinking intellectual property law.

Law & Society Review 47(3)

Law & Society Review, September 2013: Volume 47, Issue 3

Legal Emotions: An Ethnography of Distrust and Fear in the Arab Districts of an Israeli City
Silvia Pasquetti

Recent sociolegal scholarship has explored the role of emotions in lawmaking and policymaking on security and crime issues. This article extends this approach to the relationship between law enforcement and affect by addressing the role of policing and security agencies in the (re)production of long-term emotions, which bind a collective and fuel ethnonational division. An ethnography of the distinct emotional climate within the Arab districts of Lod, an Israeli city, shows that this climate is structured by two emotions: rampant distrust toward friends and neighbors, and intense fear of the Israeli authorities. This emotional climate is the product of the subterranean ties of Lod Palestinians with the Israeli security agencies as well as their experiences of the blurred line between state security and crime control enforcement. I embed the initial creation and relative stability of this emotional climate in the broader relationship between the Israeli state and its Palestinian citizens from 1948 to the present. The article concludes with a discussion of how the law enforcement's affective production has consequences for the salience and scope of citizenship and by arguing for a greater focus on the link between law enforcement, collective emotions, and processes of inclusion and exclusion.

Paradoxes of Urban Housing Informality in the Developing World
Jean-Louis van Gelder

This article addresses a series of paradoxes regarding informal settlements in cities in the developing world and their relation with the legal system. The first paradox regards the penalization of illegal land occupations on the one hand versus the legalization of that same practice on the other. Second, it looks at the relationship between land occupations as systematic violations of property rights, but with the goal of forming new property rights and thus paradoxically supporting private property as a substantive principle. Third, the reasoning behind the fact that the same system that denies legal access to housing for poor sectors simultaneously attempts to incorporate informal settlements in an ad hoc manner through legalization schemes is examined. It is shown that there is a logic to these paradoxes, which, although contradictory from standard legal perspectives, can be accommodated within a theoretical framework that distinguishes an internal normative order operating within informal settlements, from the state legal system, operative outside it. The proposed framework not only settles the paradoxes, but, this article concludes, can also guide attempts to deal with the enormous anticipated growth of informality in the developing world.

Taking Hold of the Wheel: Automobility, Social Order, and the Law in Mexico's Public Registry of Vehicles (REPUVE)
Keith Guzik

Across the globe, governments are implementing electronic vehicle registration programs capable of locating automobiles instantaneously. In order to understand the impact of such programs on contemporary governance, this article draws upon the extant literature on automobility, law and society and science and technology studies theory, and data collected from Mexico, where the government has been implementing the Public Registry of Vehicles (REPUVE). The central argument of the article rests on three concepts. First, the automobile has recurrently served as a disruptive technology in modern society, a technology whose adoption unsettles the social order by drawing users away from their usual modes of social interaction. In response, state authorities over the course of the twentieth century created a collection of legal rules, actors, and institutions designed to take hold of the wheel. By penetrating automobility with law, the state transformed the car into a legal enactment device, a technology whose operation pushes people to enact the law and, in so doing, constitutes the sociolegal order. In Mexico, a host of forces have conspired to weaken the state's hold on the wheel. The REPUVE promises to change this by “delegating” policing duties to radio-frequency identification stickers affixed to vehicles and scanners placed on roadways. Rather than enforcing the law through corruptible humans sanctioning irresponsible drivers, the REPUVE opens the possibility of doing so through a “surveillant assemblage” denying roadway access to suspicious vehicles. In the REPUVE then, the automobile passes from a legal enactment device, a technology whose operation pushes users to enact the law, to a legal prescription device, a technology whose operation requires them to do so. By demonstrating the role of vehicular regulation in the “mutual becoming” of society and technology, this study contributes to the growing research on the intersection of law and technology and provides a glimpse into the changing nature of legal power in the contemporary state.

Conceptualizing Semi-Legality in Migration Research
Agnieszka Kubal

What is semi-legality, and why does it offer a viable alternative to the legality–illegality binary divide? Semi-legality, as a heuristic device, is useful to frame the various “in-between” statuses and not resorting to illegality every time ambiguities arise as this casts the net of potential fraud far too wide. It could be viewed as a multidimensional space where migrants' formal relationships with the state interact with their various forms of agency toward the law. As a sensitizing theoretical perspective, it helps to explain why many neoliberal regimes, which claim that law and order are the main features distinguishing them from others, actually engage in perpetuating the legally ambiguous modes of incorporation. Delineating the conditions of semi-legality, I use data from 360 qualitative interviews with migrants in four European countries. I discuss: (1) “incomplete” responses to regularization programs (amnesties) – de facto fulfilling the legalization conditions, yet facing barriers to formally (de jure) corroborate this; (2) balancing between the temporality of residence in various EU countries—under-staying in some and overstaying in others; and (3) the nexus with employment—where migrants' residence in a country is lawful, but their work exceeds the restrictions permitted by their visas.

When Do Laws Matter? National Minimum-Age-of-Marriage Laws, Child Rights, and Adolescent Fertility, 1989–2007
Minzee Kim, Wesley Longhofer, Elizabeth Heger Boyle and Hollie Nyseth Brehm

Using the case of adolescent fertility, we ask the questions of whether and when national laws have an effect on outcomes above and beyond the effects of international law and global organizing. To answer these questions, we utilize a fixed-effect time-series regression model to analyze the impact of minimum-age-of-marriage laws in 115 poor- and middle-income countries from 1989 to 2007. We find that countries with strict laws setting the minimum age of marriage at 18 experienced the most dramatic decline in rates of adolescent fertility. Trends in countries that set this age at 18 but allowed exceptions (for example, marriage with parental consent) were indistinguishable from countries that had no such minimum-age-of-marriage law. Thus, policies that adhere strictly to global norms are more likely to elicit desired outcomes. The article concludes with a discussion of what national law means in a diffuse global system where multiple actors and institutions make the independent effect of law difficult to identify.

The Privatization of Public Safety in Urban Neighborhoods: Do Business Improvement Districts Reduce Violent Crime Among Adolescents?
John MacDonald, Robert J. Stokes, Ben Grunwald and Ricky Bluthenthal

The business improvement district (BID) is a popular economic development and urban revitalization model in which local property and business owners must pay an assessment tax that funds supplementary services, including private security. BIDs constitute a controversial form of urban revitalization to some because they privatize economic development and public safety efforts in public space. This study examines whether BIDs provide tangible benefits beyond their immediate boundaries to local residents in the form of reduced violence among adolescents. The empirical analysis advances an existing literature dominated by evaluation studies by introducing a theoretically driven dataset with rich information on individual and neighborhood level variables. The analysis compares violent victimization among youths living in BID neighborhoods with those in similarly situated non-BID neighborhoods. We find no effect of BIDs on violence. However, we do find that youth violence is strongly correlated with neighborhood collective efficacy and family-related attributes of social control. In conclusion, we argue that BIDs may be an agent of crime reduction, but this benefit is likely concentrated only in their immediate boundaries and does not extend to youths living in surrounding neighborhoods.

Basketball in the Key of Law: The Significance of Disputing in Pick-Up Basketball
Michael DeLand

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman's Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in informal “pick-up” games transform the meaning of their activity through disputing. By playing in a legalistic way, players constitute the game as “real” and “serious” rather than “mere play.” The analysis tracks basketball players in the heat of action as they perceive the game, call rule violations, contest those violations, and ultimately give up. Players organize each phase of the dispute's natural history in the “key of law” by constructing and comparing cases, invoking and interpreting rules, setting precedent, arguing over procedure, and proposing solutions. Through these practices, players infuse the game with rich meaning and generate the motivational context demanding that the game be treated as significant. This analysis contributes to an understanding of legal ontology that envisions law's essence as potentiating rather than repairing normative social life.

Law & Society Review 47(2)

Law & Society Review, June 2013: Volume 47, Issue 2

New Perspectives from the Oldest Profession: Abuse and the Legal Consciousness of Sex Workers in China
Margaret L. Boittin

Although prostitution is illegal, millions of women sell sex in China. In the process, they experience significant abuse and harm at the hands of clients, madams, pimps, the police, and health officials. This article examines the legal consciousness of Chinese sex workers through their interpretations of these abusive experiences. It reveals how they think and talk about them, and how their reactions sometimes translate into concrete actions. My evidence shows that sex workers name abuse as harmful, blame others for it, and occasionally make claims. They also have strong opinions about prostitution policies, and the relationship between these regulations and their experiences of abuse. These findings place scope conditions on previous theories of marginalized people and the law, which suggest that powerless individuals perceive a more peripheral role of the law in their lives. In addition, this evidence enriches our understanding of legal consciousness in China by showing how debates around the concept apply more broadly than previously recognized.

Pragmatic Discourse and Gender Inequality in China
Xin He and Kwai Ng

Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging “pragmatic discourse,” deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation.

Bright-Line Fever: Simple Legal Rules and Complex Property Customs among the Fataluku of East Timor
Daniel Fitzpatrick and Andrew McWilliam

Recent law and economics scholarship has revived a debate on bright-line rules in property theory. Economic analysis asserts a baseline preference for bright-line property rules because of the information costs if “all the world” had to understand a range of permitted uses, or deal with multiple interest holders in a resource. A baseline preference for bright-line rules of property arises from the cost of communicating information: all else being equal, complex rules suit smaller audiences (e.g., contracting parties) and simple rules suit large audiences (e.g., property transactors, violators, and enforcers). This article explores the circumstances in which a simple rule, purportedly for a large audience, takes on interpretive complexity as it traverses specialized audience segments. The argument draws on two heuristic strands of recent sociolegal scholarship: systems theory notions of autopoiesis, and concepts of negotiability in plural property relations. The potential for complex interpretations of simple legal rules is illustrated through a case study of the Fataluku language group in the district of Lautem, East Timor.

Signaling Environmental Stewardship in the Shadow of Weak Governance: The Global Diffusion of ISO 14001
Daniel Berliner and Aseem Prakash

This article examines how the quality of domestic regulatory institutions shapes the role of global economic networks in the cross-national diffusion of private or voluntary programs embodying environmental norms and practices. We focus on ISO (International Organization for Standardization) 14001, the most widely adopted voluntary environmental program in the world, which encourages participating firms to adopt environmental stewardship policies beyond the requirement of extant laws. We hypothesize that firms are motivated to signal environmental stewardship via ISO 14001 certification to foreign customers and investors that have embraced this voluntary program, but only when these firms operate in countries with poor regulatory governance. Using a panel of 129 countries from 1997 to 2009, we find that bilateral export and bilateral investment pressures motivate firms to join ISO 14001 only when firms are located in countries with poor regulatory governance, as reflected in corruption levels. Thus, our article highlights how voluntary programs or private law operates in the shadow of public regulation, because the quality of public regulation shapes firms' incentives to join such programs.

Militarized Justice in New Democracies: Explaining the Process of Military Court Reform in Latin America
Brett J. Kyle and Andrew G. Reiter

While a large body of literature emphasizes the importance of judicial reform in new democracies, few scholars have examined the reform of military justice systems in these settings—despite the potential for these courts to compete directly with civilian courts and subvert the rule of law. This article focuses on Latin America to empirically examine how the process of reforming military courts has played out in each democracy following authoritarian rule. We outline two distinct pathways: (1) unilateral efforts on the part of civilian reformers, and (2) strategic bargains between civilian reformers and the military. Within the unilateral category, we further distinguish efforts driven by civilian courts, those pursued by politicians, and those undertaken in the context of larger political transformations. Ultimately, we find that, absent a dramatic defeat of an authoritarian regime and its armed forces, reform efforts that do not engage and bargain with the military directly often fail to achieve long-term compliance and improvements in human rights practices. The success of such reform efforts, therefore, may come at a cost in other areas of democracy and civil-military relations. We conclude the article by summarizing our findings and reflecting on the lessons they provide for ongoing military justice reform efforts around the globe.

Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws
Udi Sommer, Victor Asal, Katie Zuber and Jonathan Parent

What variables lead judicial and nonjudicial decision-making bodies to introduce policy change? In the theoretical framework proposed, the path-dependent nature of law has a differential impact on courts and legislatures. Likewise, certain political institutions including elections and political accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972–2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. The unique institutional position of courts of last resort allows them to be less constrained than legislatures by either legal status quo or political accountability. Globalization, on the other hand, has a comparable effect on both. This work is path breaking in offering a theoretical framework explaining policy change via different institutional paths, systematically testing the framework comparatively and with respect to a policy issue still on the agenda in many countries.

Law & Society Review 47(1)

Law & Society Review, March 2013: Volume 47, Issue 1

Real Interrogation: What Actually Happens When Cops Question Kids
Barry C. Feld

Although the Supreme Court repeatedly cautioned that youthfulness adversely affects juveniles' ability to exercise Miranda rights or make voluntary statements, it endorsed the adult waiver standard—knowing, intelligent, and voluntary—to gauge juveniles' Miranda waivers. By contrast, developmental psychologists question whether young people understand or possess the competence necessary to exercise Miranda rights. This article analyzes quantitative and qualitative data of interrogations of three hundred and seven (307) sixteen- and seventeen-year old youths charged with felony offenses. It reports how police secure Miranda waivers, the tactics they use to elicit information, and the evidence youths provide. The findings bear on three policy issues—procedural safeguards for youths, time limits for interrogations, and mandatory recording of interrogations.

Symbol and Substance: Effects of California's Three Strikes Law on Felony Sentencing
John R. Sutton

California's “three strikes and you're out” law is the most notorious example of the wave of mandatory sentencing policies that many states enacted beginning in the late 1970s. While advocates and critics predicted the law would have profound effects on aggregate punishment trends and individual case outcomes, Feeley and Kamin's analysis of previous sentencing reforms suggested the law's impact would be mainly symbolic because local officials would ignore, subvert, or nullify its major provisions. While aggregate analyses have tended to confirm this argument, so far there has been no systematic test of the law's effect on individual cases. This analysis uses multilevel models applied to case-level data from 12 urban California counties to test hypotheses about shifts in average punitiveness, the relative influence of legal and extralegal factors on sentencing, and the uncertainty of sentencing outcomes. Results mostly support Feeley and Kamin's symbolic interpretation, but also reveal important substantive impacts: since Three Strikes, sentences have become harsher, particularly in politically conservative counties, and black felons receive longer prison sentences.

Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self
Amy Myrick

While substantial sociolegal research has analyzed the deleterious effects of criminal records on life outcomes, little has examined the records themselves, or their relationship to the people they represent. In this article I take a novel tact, treating criminal records as the material, textual documentations of an individual's past. I then observe expungement seekers—people who encounter their own records—to understand their reactions. From this data, I use inductive theories of symbolic interactionism to theorize another collateral effect of the criminal record: it represents people in ways that depersonalize their social identities, and prevents them from communicating corrective self-understandings to the governing bodies that author the records. I conclude with my main theoretical contribution: “having a criminal record,” literally, means having a textual proxy that the state has authored on its own terms, without input from the people whom it permanently represents, and while concealing from those people the apparatus behind authorship. As a consequence, the criminal records system serves as a barrier to reciprocal communication between ex-arrestees and a legal system that represents them in ways that they may want to contest. This “wrongful representation” is a collateral effect of having a criminal record that impedes the ability of ex-arrestees to manage or repair their relationship with the state that has punished them.

Judicial Independence across Democratic Regimes: Understanding the Varying Impact of Political Competition
Aylin Aydin

One of the most prominent explanations of the creation and maintenance of independent judiciary is the “insurance theory” that proposes a positive relationship between political competition and judicial independence. But, does intense political competition inevitably lead to higher levels of judicial independence across all types of democracies? Conducting a large-N cross-country analysis over 97 democratic countries, this study shows that as democratic quality across countries changes, the impact of political competition on judicial independence changes as well. The empirical findings reveal that while in advanced democracies high levels of political competition enhances judicial independence, in developing democracies political competition significantly hampers the independence of the courts.

Liberalism and Its Other: The Politics of Primitivism in Colonial and Postcolonial Indian Law
Uday Chandra

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face-off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so-called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.

The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law
Dan Priel

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain's Post-War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s.

An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions
Bethany Blackstone

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.

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.