Law & Policy

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 0265-8240

Issue Number

No. 45-4, October 2023

Latest documents

Issue Information
Sumptuary administration: How contested market actors shape the trajectory of policy when regulated under fragmented governance
In contemporary society, sumptuary laws regulate contested markets by delegating enforcement responsibilities to the private sector. This can decouple the intention behind policies from the practices to implement them. When state interests do not align concerning the legality of a market, can policy and practice recouple, and if so, how? This article reports on a case study of commercial cannabis in the United States to answer this question. Interviews with 56 cannabis industry stakeholders in California, Arizona, and Texas reveal that policy and practice recoupled through a patterned process that I call sumptuary administration. In each state, regulators drew on a unique set of schemas, or “framework of accountability,” that prioritized a subset of cannabis market participants during the policy‐making process. This resulted in missing or ambiguous sumptuary laws. To address business challenges that were tethered to this regulatory environment, cannabis businesses drew on similar schemas to identify appropriate practices. I show how grounding practices in these frameworks legitimized the preferences of the cannabis industry in the eyes of state authorities and influenced specific program policy revisions. Sumptuary administration represents a novel mechanism for understanding the social construction of legality in markets that are regulated under fragmented governance.
Early 21st century penal reform: A comparative analysis of four states' responses to the problems of mass incarceration
This manuscript uses data drawn from case studies of New Jersey, Pennsylvania, Illinois, and Michigan from 2000 to 2006 in order to examine how different states responded to mounting problems caused by mass incarceration. Lawmakers and penal administrators inherited correctional systems that had at least doubled in size over the previous decade and faced budgetary problems, overcrowded conditions, and federal litigation. When economic pressures and the 2001 recession destabilized state budgets, state officials responded differently to these crises. While legislators remained committed to the carceral ethos that had driven prison expansion, some governors and penal administrators charged with managing state corrections systems began to consider new responses that moved away from prison expansion. As we show, executives and penal administrators in some states successfully implemented reforms by making changes to back‐end correctional processes. Their successes highlight the importance of autonomy from external pressures that allowed some administrators to respond to mounting problems in ways that reduced their state's reliance on imprisonment. These administrators deployed their correctional expertise to pursue policies that minimized political backlash. States lacking the necessary institutional structures and sufficient external pressures largely sustained the penal status quo.
DACA legal services: One federal policy, different local implementation approaches
In the United States, the absence of federal funding and coordination for immigration legal services often means that local resources determine immigrants' access to justice. Many of these resources go toward supporting immigrants caught in the detention and deportation system. Yet local support is also critical for implementing federal benefits programs such as the 2012 Deferred Action for Childhood Arrivals (DACA) program. In this article, we draw on 146 interviews with representatives of legal services providers and their nonprofit collaborators in three immigrant‐dense metropolitan areas—the Greater Houston Area, the New York City Metro Area, and the San Francisco Bay Area—to analyze the distinct, place‐specific service and collaboration models that have emerged over the last decade to meet demand for DACA implementation support. Specifically, we examine how local context shapes the types of actors that immigrants can turn to for immigration legal services, and how they have coordinated on the ground in distinct ways during a time of increasing uncertainty.
Predatory fines and fees: Revenue, fiscal contrition, and policy change
Fiscal contrition refers to the phenomenon of policy‐makers becoming aware of the social costs of fines and fees, recognizing a need to reduce those costs, and taking action to do so. In order to reveal the occurrence of fiscal contrition, this analysis examines detailed budget data from three U.S. counties. Findings indicate a dominance of predatory over punitive monetary sanctions in county budgets. That is, fines and fees that extract revenue from a justice‐involved population are more common than those with social control objectives. The analysis also reveals patterns and nuances in fine and fee usage and the revenue they produce, which illuminates pathways for reducing reliance on fine and fee revenue. This approach provides useful context for the burgeoning scholarship focused on the role of monetary sanctions in fueling social inequities.
Smallpox vaccination and the limits of governing through contagion in the Straits Settlements, 1868–1926
Vaccination involves the encounter of nonhuman biological matter and human bodies, recalibrating our susceptibility to illness and death. This boundary‐crossing act has been caught in conflicting webs of moral significance, including the normalizing frameworks of public health governance and its corresponding forms of resistance. Such tensions and dynamics were a feature of smallpox vaccination ‐ the first modern, systematic state‐driven project to build population immunity. Focusing on smallpox vaccination in the British‐ruled Straits Settlements (Singapore, Penang, and Malacca) between 1868 and 1926, we examine the recurrent features of contentions over vaccination from the tentative beginnings of the 1868 Vaccination Ordinance to the systematic extension of vaccination in the 20th century. Engaging science and technology studies of nonhuman agency and social theories on security, we argue that such contentions demonstrate the limits of a power formation we call governing through contagion (GTC). GTC centralizes law and other technologies to normalize public health measures that combat contagious diseases, while dysconnecting populations by its strategies of control. Our history of smallpox vaccination reveals: (i) GTC relies on the interconnectedness of human and nonhuman actors in protecting populations against viral threats; law is essential but does not necessarily drive vaccination or other strategies of control and (ii) resistance to GTC, in which law plays an integral role, reinforces inequalities and differentiated treatment, what we term endemic inter/dysconnectedness.
Deaths and COVID‐19: Talk, silence and alternative realities
This article critically considers the UK Government's insidious attempts to control the narrative around COVID‐19 deaths through using the interrelated strategies of “talk and ‘silence’ in order to socially construct a definitive ‘truth’” around the virus. The article traces how these strategies worked in practice and the shift which took place from numerous press briefings and Parliamentary debates to an ominous silence around the number of deaths, in particular. At the same time, as the article illustrates, the government's truth has not prevailed. Their twin strategy has been contested and resisted by grassroots organizations and radical lawyers who have demanded that Ministers should take responsibility for the tens of thousands of preventable deaths which have occurred. Rather than government talk and silence prevailing, it is the voices of the haunted relatives of the dead, demanding accountability, which are creating an alternative narrative.
Issue Information
Carving the meat at the joint: The role of defining how animals are viewed and treated in the governance of (re‐)emergent pandemic zoonoses in international law
Pandemic zoonoses, such as COVID‐19, are one of the greatest challenges of the 21st century. International governance tasked with attempting to prevent the (re‐)emergence of zoonotic disease in the first place, or preparation and actual response once (re‐)emergence or spread has occurred, has largely been fragmented among different governance systems, such as health, food, environment, and trade. The international legal instruments that these governance systems use reflect different ways of viewing and treating animals, which has led to a similarly fragmented approach to the regulation of human–animal interactions related to zoonoses. To illustrate this state of affairs, we develop a descriptive conceptual taxonomy to elucidate and map out how the status and evaluative stance taken toward animals can lead to shaping human‐animal relationships by structuring the nature of their interactions and disposes us to adopt governance approaches that seek to regulate human–animal relationships in particular ways. This paper concludes by highlighting some implications surrounding the fragmented conceptualization and practice around how animals are viewed and treated for the future of international legal governance of pandemic zoonoses.
Emergency powers, anti‐corruption, and policy failures during the COVID‐19 pandemic in Puerto Rico
This paper explores how the use of emergency powers by the US and Puerto Rican governments exacerbated the impact of the COVID‐19 pandemic and manufactured the conditions for furthering the multilayered economic, legal, political, and humanitarian crisis affecting Puerto Rico since 2006. The paper discusses three cases. First, it examines how the multiple declarations of the state of emergency, and its constant renewals, produced contradictory public health policies. Since the start of the COVID‐19 pandemic in March 2020, the Puerto Rican government has issued over 90 executive orders aimed at addressing the emergency, producing an unclear, contradictory, and unequal emergency management policy. Second, the paper focuses on the impact of the passing of Law 35 on April 5, 2020, which imposed severe penalties on those who disobeyed executive orders. As a result, hundreds of Puerto Ricans were arrested, fined, and incarcerated for violating the issued order. Third, the paper studies how, citing the presence of corruption, the Puerto Rican government implemented anti‐corruption and anti‐fraud policies that made it more difficult for those most in need of it—mainly poor and racialized individuals, as well as immigrants and working women—to access Pandemic Unemployment Assistance. Thus, the paper argues that emergency policies designed to address the pandemic, punitive governance, and anti‐corruption and anti‐fraud policies undermined Puerto Rico's capacity to handle the pandemic, exacerbated its impact, and created an unequal recovery scenario.