Law & Policy
- Publication date:
- Nbr. 40-2, April 2018
- Nbr. 40-1, January 2018
- Nbr. 39-4, October 2017
- Nbr. 39-3, July 2017
- Nbr. 39-2, April 2017
- Nbr. 39-1, January 2017
- Nbr. 38-4, October 2016
- Nbr. 38-3, July 2016
- Nbr. 38-2, April 2016
- Nbr. 38-1, January 2016
- Nbr. 37-4, October 2015
- Nbr. 37-3, July 2015
- Nbr. 37-1-2, January 2015
- Nbr. 36-4, October 2014
- Nbr. 36-3, July 2014
- Nbr. 36-2, April 2014
- Nbr. 36-1, January 2014
- Nbr. 35-4, October 2013
- Nbr. 35-3, July 2013
- Nbr. 35-1-2, January 2013
- Hukou Status and Sentencing in the Wake of Internal Migration: The Penalty Effect of Being Rural‐to‐Urban Migrants in China
While the disparate legal treatment of immigrants in Western jurisdictions has been well documented in sociolegal scholarship, the potential legal inequality experienced by rural‐to‐urban migrants in China, who have become China's largest disadvantaged social group, has not garnered much attention. To fill the gap, this article empirically examines sentencing disparities related to the Hukou status of criminal offenders by employing quantitative data on criminal case processing in China. The results of our analysis reveal that rural‐to‐urban migrant defendants are more likely to be sentenced to prison than their urban counterparts. In addition, the penalty effect of being a rural‐to‐urban migrant is further magnified in jurisdictions with a larger concentration of migrants. Our findings suggest that discrimination against rural‐to‐urban migrants has become an emerging, significant form of legal inequality in China's criminal justice system, refracting and reinforcing the deep‐seated structural inequality associated with Hukou status in China. The research and policy implications of these findings are discussed.
- Death Qualification in Black and White: Racialized Decision Making and Death‐Qualified Juries
Death qualification has been shown to have a number of biasing effects that appear to undermine a capital defendant's Sixth Amendment right to a fair jury. Attitudes toward the death penalty have shifted modestly but consistently over the last several decades in ways that may have changed the overall impact of death qualification. Specifically, the very large gap between black and white Americans' current support for capital punishment raises the question of whether death qualification procedures disproportionately exclude African Americans from capital jury participation. In order to examine this possibility, we conducted two countywide death penalty attitude surveys in the California county that has the highest percentage of African American residents in the state. Results show that death qualification continues to have a number of serious biasing effects—including disproportionately excluding death penalty opponents—which result in the significant underrepresentation of African Americans. This creates a death‐qualified jury pool with the potential to be significantly more likely to ignore and even misuse mitigating factors and to rely more heavily on aggravating factors in their death penalty decision making. The implications of these findings for the fair administration of capital punishment are discussed.
- Examining Procedural Justice and Legitimacy in Corporate Offending and Beyond‐Compliance Behavior: The Efficacy of Direct and Indirect Regulatory Interactions
Tom Tyler's Procedural Justice Theory has received support in a variety of studies using criminal justice authorities as the research focus. To date, the theory has not been empirically tested using corporate malfeasance as an outcome, despite evidence that procedural justice is important in achieving regulatory compliance. This study uses factorial survey methods to examine whether corporate behavior is predicted by professionals' perceptions of procedural justice and legal legitimacy. We find that procedural justice and legitimacy considerations are salient only when managers have direct contact with regulatory authorities. This supports John Braithwaite's argument that effective regulation is enhanced by microlevel interactions in which procedural justice can be effectively leveraged to promote compliance.
- Issue Information
- Public Mass Murderers and Federal Mental Health Background Checks
The litany of public mass murders, from Aurora, Newtown, Charleston, Las Vegas, and Parkland to less well‐known incidents that occur yearly, has focused national attention on federally mandated mental health background checks of prospective gun purchasers. The call has been to put more gun‐disqualifying mental health records into the National Instant Criminal Background Check System database to prevent “deranged” murderers from buying guns and running amok. Our study examines whether increasing the robustness of the mental health background database will likely prevent potential public mass murderers from buying guns. Building on research that shows that serious mental illness contributes little to the risk of interpersonal violence and, further, that few persons with serious mental illness acquire gun‐disqualifying mental health records, we examine whether public mass murderers are among the small percentage of those with serious mental illness who do have gun‐disqualifying mental health records. Using a large sample of 106 US offenders who used a firearm to commit a public mass murder from 1990 to 2014, we find that half of the offenders had a history of mental illness or mental health treatment but that less than 5 percent had gun‐disqualifying mental health records. Implications of these findings and recommendations for further research are discussed.
- Issue Information
- Legal Mobilization and Analogical Legal Framing: Feminist Litigators’ Use of Race–Gender Analogies
We investigate how cause lawyers articulate their demands in court. We do so by examining feminist legal briefs submitted in US Supreme Court cases from 1970 to the present, specifically focusing on the use of race–gender analogical legal framing. We explore the frequency and trends in the use of such arguments as well as the forms these arguments take, including how race–gender analogies parallel frame bridging and transformation. Additionally, we also investigate why activists choose to deploy race–gender analogies in their legal framing and discern that different political, legal, and social contexts can produce different uses of the race–gender analogy.
- Where Movements Matter: Examining Unintended Consequences of the Pain Management Movement in Medical, Criminal Justice, and Public Health Fields
Social movement scholars have rarely considered professional fields as sites of social movement consequences and have overlooked how social movement consequences traverse field boundaries. This research examines where movements matter by examining unintended consequences across professional fields. Drawing on a case study of the pain management movement, this study asks (1) under what conditions do movements targeting a focal professional field create consequences in adjacent fields; (2) what factors affect how adeptly the adjacent field responds; and (3) how do social movement impacts on adjacent fields affect the focal field? Findings demonstrate how the success of the pain management movement in medicine helped to fuel the opioid epidemic, which detrimentally affected the adjacent fields of criminal justice and public health. These adjacent fields' strategies for curbing spillover, in turn, created a new set of consequences for medicine. Their responses depended on material and moral resources and authority structures that differed significantly across the two adjacent fields. This article concludes with a discussion of factors that may facilitate or deter cross‐field contagion effects and offers suggestions for future research.
- Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home
Research on legal opportunity structures has focused on how existing law, standing rules, and the costs of litigation shape the likelihood that social movement groups will mobilize the law. Yet there has been relatively little research on how and why legal opportunity structures change over time. This article focuses on a case study of the mobilization of procedural environmental rights contained within the Aarhus Convention. It addresses the following empirical puzzle: how did rights that were designed to help Eastern Europeans achieve environmental democracy eventually contribute to a reshaping of the structure of legal opportunities in Britain? Through a two‐step historical process‐tracing analysis that relies on a social constructivist theoretical approach, this research shows that environmental groups mobilized Aarhus rights in a number of ways and across different judicial venues, resulting in an evolution over time of the meaning of access to justice so that it included being “not prohibitively expensive.” This research builds on previous work to show that civil society agents are not passive agents situated within legal opportunity structures but instead are strategic actors who can develop and shape access to justice through policy entrepreneurialism and litigation.
- Lawyers and Embedded Legal Activity in the Southern Civil Rights Movement
We introduce the concept of embedded legal activity to capture the ways in which lawyers and legal organizations can become intertwined in the ongoing activities of social movements. Embedded legal activity is characterized by diverse issues and venues and comprises legal activities that help support movement infrastructure, close coordination between movement lawyers and other activists, and responsiveness to constituent needs. Investigating a comprehensive data set on legal activity during the southern civil rights movement, we identify forms of legal activity beyond the typical focus of legal mobilization, including defense for movement participants charged with misdemeanors and other crimes, movement assistance on organization‐level legal matters, and general legal aid to movement constituents. These were by far the more common types of legal activity and emerged from the embeddedness of lawyers in a mass movement. We argue that embedded legal activity is likely where movements prioritize grassroots leadership and community organizing and face significant countermobilization, hostile legal and political opportunity structures, and substantial social and economic inequality.
- Small‐Group Dynamics, Ideology, and Decision Making on the US Courts of Appeals
There is some evidence that judges who specialize in particular legal areas vote in more ideologically consistent ways than do nonspecialists. Upon replicating those individual results across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on ideology by...
- The Forms and Limits of Choice Architecture as a Tool of Government
Although the use of design‐based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained...
- Regulatory Choice for Alternative Modes of Regulation: How Context Matters
The growing role of alternative modes of regulation (self‐ and co‐regulation) gives rise to major questions about regulatory choice between available governance mechanisms. Strategic policy instruments such as regulatory impact assessment guidelines (RIA) typically suggest assessing the suitability ...
- Entering the Australian Judiciary: Gender and Court Hierarchy
There is considerable attention to increasing judicial diversity along a range of dimensions, in particular, gender. Women remain underrepresented in many courts, especially at the higher levels of the judiciary. A comprehensive socio‐legal study of the Australian judiciary compares experiences and ...
- Managing from the Middle: Frontline Supervisors and Perceptions of Their Organizational Power
Frontline supervisors serve in a critical role, maintaining relationships between upper management and frontline workers; however, we still know relatively little about how subordinates view their power in relation to their supervisors and how frontline supervisors understand and exercise their own ...
- A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?
In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would...
- Ethical Limitations on the State's Use of Arational Persuasion
Policy makers frequently use arational appeals and nudges—such as those relying on emotion, cognitive biases, and subliminal messaging—to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational...
- Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Antidiscrimination Laws
Existing empirical research suggests that human resource officials, managers, and in‐house counsel influence the meaning of antidiscrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance...
- Really Responsive Risk‐Based Regulation
Regulators in a number of countries are increasingly developing “risk‐based” strategies to manage their resources, and their reputations as “risk‐based regulators” have become much lauded by regulatory reformers. This widespread endorsement of risk‐based regulation, together with the experience of...
- Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements
The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private...