Law & Policy
- Publication date:
- No. 42-4, October 2020
- No. 42-3, July 2020
- No. 42-2, April 2020
- No. 42-1, January 2020
- No. 41-4, October 2019
- No. 41-3, July 2019
- No. 41-2, April 2019
- No. 41-1, January 2019
- No. 40-4, October 2018
- No. 40-3, July 2018
- No. 40-2, April 2018
- No. 40-1, January 2018
- No. 39-4, October 2017
- No. 39-3, July 2017
- No. 39-2, April 2017
- No. 39-1, January 2017
- No. 38-4, October 2016
- No. 38-3, July 2016
- No. 38-2, April 2016
- No. 38-1, January 2016
- Rethinking nongovernmental organizations: Neoliberalism, “nonstate” actors, and the politics of recognition in the United States
This article builds on and contributes to the scholarship on social movements and the law by revealing the critical function of nongovernmental organizations (NGOs) in law and policy in neoliberal times. Building on frame theories in social movement literature, this essay uses the lens of NGO‐produced advocacy for binational same‐sex couples to consider more broadly the relationship between individual experience, subjectivity, and the discourses and practices employed by NGO actors. It offers an analysis of both how NGOs developed and utilized particular messaging strategies and rhetorical frames to discursively produce a normative image of their constituency, and how constituents navigated and made use of the framing strategies developed by NGOs in their own claims to state rights and recognition. This discussion thus highlights the potentials and the problematics of the NGO model in social movements' efforts toward legal and political change.
- The devil is in the details: How arbitration system design and training facilitate and inhibit repeat‐player advantages in private and state‐run arbitration hearings
This article demonstrates that arbitration system design and the training that arbitrators receive shape the extent to which repeat players gain advantages in arbitration hearings. While prior arbitration research does suggest that arbitrator training matters, this is the first article to show how it matters, as we observe actual arbitration hearings in private and state‐run arbitration systems in two states. Our comparative analysis links three literatures interested in how seemingly interest‐neutral institutions, like disputing forums, serve in practice to reinforce dominant norms, values, and hierarchies: (1) sociolegal studies of repeat‐player advantages in disputing, (2) studies of occupational socialization in educational settings, and (3) neoinstitutional organizational sociology studies of how managerial values influence the way in which organizations construct law. We bridge these literatures by showing how arbitrator system design and the occupational socialization that arbitrators receive in private arbitration are primary mechanisms through which managerial values influence the arbitration process, ultimately providing a pathway for repeat‐player advantages in hearings. Because our analysis compares two distinct arbitration systems, we identify variation in these processes and offer preliminary but tangible policy recommendations for the design and implementation of arbitration systems that best protect civil and consumer rights within arbitral forums that the Supreme Court continually upholds.
- Issue Information
- Can a leopard change its spots? Strategic behavior versus professional role conception during Ukraine's 2014 court chair elections
Do judges respond to institutional and strategic incentives or do they strictly follow dominant professional role conceptions? This article weighs in by exploring whether an ideational shift toward judicial empowerment and independence can germinate from institutional reforms. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake provide a test of the competing theoretical accounts. A judicial lustration law sacked all incumbent court chairs, who had been appointed by the executive, and gave Ukrainian judges the right to elect new chairs via secret ballot. I analyze this radical step toward judicial self‐government using an original data set with individual‐ and court‐level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly granted agency and elected a new chair for their court, whereas the overwhelming majority followed dominant professional norms of deference and reelected the sacked court chairs. This finding holds for all rungs of the judicial hierarchy and for all regions of Ukraine. Even protégés of ousted president Yanukovych won the secret ballot vote by their peers more often than they lost it. Beyond Ukraine, these results suggest that empowering individual judges in the highly hierarchical structure of a civil law judiciary is unlikely to lead to a judicial behavior shift, at least in the short run.
- The paradox of regulatory discretion
Regulatory authorities in the utilities sector typically employ economic evidence and analysis to make expert discretionary judgments under uncertainty. However, economic analysis does not provide clear answers regarding policy outcomes. This exposes regulators to environmental uncertainty, that is, uncertainty regarding the reactions of other actors in the institutional system to their decisions. When policy outcome and environmental uncertainty are high, discretion takes center stage. Will regulators pursue the course of action suggested by economic analysis and their expert judgment or not? What explains this choice? To answer these questions, we carry out a comparative analysis of three British regulatory authorities in the utilities sector: the Office of Communications, the Office of Gas and Electricity, and the Water Services Regulation Authority. We consider two key sectoral and organizational characteristics: the extent of market competition, and statutory discretion. We rely on interview evidence and documentary analysis and a principal–agent framework. Our analysis reveals a paradox: when environmental and policy outcome uncertainty are high, the higher the regulatory discretion, the lower the role of economic expertise in regulatory decisions. Our findings call for a normative reflection on the role of expertise in regulated sectors.
- Issue Information
- Court Interpreters and the Political Economy of Bail in Three Arraignment Courts
Criminal courts in the United States engage defendants with Limited English Proficiency on a regular basis. However, we know little about how court‐appointed interpreters shape case‐level routines and dispositions, nor how these interpreters navigate their immediate courtroom environment. We draw on observations of bail hearings (N = 647) conducted in 2015–16 in three arraignment courts in New York and New Jersey to map the practice and consequences of language interpretation. More specifically, we examine whether the use of an interpreter relates to indicators of judicial treatment and case disposition by bail type/amount, and explore more broadly how the presence of interpreters shapes the casework of other courtroom actors. Results from multivariate regression models indicate that cases with interpreters are associated with a more limited judicial review, a lower likelihood of unconditional release, and higher cash bonds. We discuss these findings in terms of evolving mechanisms of social control and the criminalization of disadvantaged populations.
- How Free Is Sow Stall Free? Incremental Regulatory Reform and Industry Co‐optation of Activism
This article critically examines how interactions between social movement activism, supermarkets, and the pork industry led to the voluntary adoption of “sow stall free” standards in Australia. We “backwards map” the regulatory space behind “sow stall free” products to show how the movement against factory farming became selectively focused on the abolition of one form of confinement for sows rather than on other forms of confinement and the conditions of the sows’ offspring, the piglets that are consumed. We argue that this facilitated an incremental shift to “sow stall free” production, allowing the concept of pig welfare to be corporatized in a way that maintains the dominant model of factory farmed pig meat production.
- “They Think I'm a Lawyer”: Undocumented College Students as Legal Brokers for Their Undocumented Parents
Past research demonstrates that children of immigrants serve as language and cultural brokers for their parents. However, much of this work centers on immigrants with protected legal status. Drawing on thirty in‐depth interviews with undocumented college students, I conceptualize the phenomenon of legal brokering to capture how undocumented students share legal resources with their parents. In addition to this conceptualization, I find that four factors shaped how students served as legal brokers: (1) online platforms; (2) institutional support; (3) networks of support; and (4) involvement in immigrant rights organizations. These findings advance theoretical frameworks in segmented assimilation theory, sociolegal studies, and immigrant illegality.
- The Politics of Symbolic Laws: State Resistance to the Allure of Sex Offender Residence Restrictions
Sex offender residence restrictions are largely symbolic laws that address constituent demands to do something about sex crimes without actually reducing sex offenses. While the majority of US states have implemented such restrictions, this exploratory study examines three states that have resisted the allure of these symbolic laws. Using data from state government archives, we analyze expressive and instrumental rationales for rejecting residence restrictions to explore what facilitates the failure of a symbolic law. We find that while supporters and opponents both made largely instrumental arguments, opponents framed their instrumental arguments in expressive terms. Legislators’ policy positions, reliance on empirical evidence, and testimony from bureaucrats also contributed to the failure of residence restrictions in these states. Our findings help explain why empirically ineffective sex offender laws appeal to the public and politicians, how these laws might be scaled back, and how symbolic laws may lose their power in some contexts.
- How Free Is Sow Stall Free? Incremental Regulatory Reform and Industry Co‐optation of Activism
This article critically examines how interactions between social movement activism, supermarkets, and the pork industry led to the voluntary adoption of “sow stall free” standards in Australia. We “backwards map” the regulatory space behind “sow stall free” products to show how the movement against ...
- 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. ...
- 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...
- Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA
Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for ...
- Litigation in the Fossil Fuel Divestment Movement
The fossil fuel divestment movement has been described as the fastest‐growing disinvestment movement in history, and in recent years it has continued to expand. Despite its growth, however, the movement has made little use of legal action, instead utilizing tactics of public pressure and persuasion,...
- Informal Institutions and Judicial Independence in Paraguay, 1954–2011
This article explains how informal institutions have prevented the emergence of autonomous judges in Paraguay between 1954 and 2011. The central argument is that co‐optation, clientelism, and judicial corruption considered as informal institutions, rooted during the dictatorship, have impeded the...
- The Old Jim Crow: Racial Residential Segregation and Neighborhood Imprisonment
This article examines the impact of racial residential segregation on imprisonment rates at the neighborhood level. Key to the strength of this enterprise is block‐group level data on imprisonment, crime, and other demographic factors for about 5,000 neighborhoods in North Carolina. These data also ...
- A Typology of Tax Compliance in Developing Economies: Empirical Evidence from China's Shoe Industry
Drawing on fieldwork investigations of shoe manufacturers in southeastern China, this article provides empirical evidence for understanding these businesses’ taxpaying practices. We find that since business taxpayers largely regard tax law as illegitimate, instrumental considerations dominate these ...
- Building Norms from the Grassroots Up: Divestment, Expressive Politics, and Climate Change
The fossil fuel divestment movement is at the forefront of civil society initiatives to raise public consciousness about the need for a “fossil‐free” future. Through the lens of the social movement literature, this article shows how the movement has harnessed grassroots activists, engaged in...
- 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...