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.