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.