Wiley: Law & Social Inquiry: Table of Contents

Acknowledgments to Reviewers

Mon, 12 Nov 2018 21:16:54 -0800

Law &Social Inquiry, Volume 43, Issue 4, Page 1146-1148, Fall 2018.

Visual Data and the Law

Sarah Brayne, Karen Levy, Bryce Clayton Newell — Mon, 12 Nov 2018 21:16:54 -0800

Visual data are transforming the documentation of activities across many legal domains. Visual data can incriminate or exonerate; they can shape and reshape public opinion. Visual evidence can legitimize certain accounts of events while calling others into question. The proliferation of visual data creates challenges for the law at multiple points of entry: recording, distribution or disclosure, redaction or deletion, or use as evidence. This symposium outlines and analyzes legal challenges posed by recent developments in visual data technologies and practices. This introductory essay and the articles that follow highlight legal issues that arise when state actors collect visual data and when visual data are used in legal disputes. Technological development is outpacing empirical research on, and legal regulation of, visual data within society and inside the courtroom. This symposium provides a much-needed opportunity to highlight new legal and empirical research at the intersection of visual data and law.

The Labor Judge Unleashed: Rule of Law and Labor Rights in “Neoliberal” Chile

César F. Rosado Marzán — Mon, 12 Nov 2018 21:16:54 -0800

Hoping to improve labor justice, some Latin American countries have reformed their labor courts without necessarily buttressing working-class power. Class power theories make us skeptical of these state-centric strategies for labor rights. Will the “rule-of-law” reforms work? This article reports ethnographic evidence collected by the author in the Chilean labor courts during 2009–2010, and secondary sources. It compares contemporary labor courts, reformed but in an otherwise “neoliberal” context, with the unreformed labor courts of the “socialist” years (1970–1972) to gauge the efficacy of rule-of-law reforms. Results show that despite the neoliberal context, the labor courts were more responsive to workers' claims than under socialism. Rule of law and procedural rules matter for effective labor rights.

The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law

Mon, 12 Nov 2018 21:16:54 -0800

The criminalization of offensive, privacy-intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine-country comparative study. We distinguish between voyeurism-centric approaches (focusing largely on nudity and sex) and broader, intrusion-centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing nonconsensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiability, and counter-indicators to prevent over-criminalization. This framework is relevant for protecting visual aspects of privacy in view of individuals' underlying autonomy interests.

A New Era for Labor Activism? Strategic Mobilization of Human Rights Against Blacklisting

Filiz Kahraman — Mon, 12 Nov 2018 21:16:54 -0800

This article examines whether and how international human rights law transforms the grassroots mobilization strategies of labor activists. Drawing on original ethnographic research on the activism of blacklisted workers in the United Kingdom, I show that there is a two-tier process through which human rights norms are interpreted and mobilized, first by legal advocacy groups, then by grassroots activists. Contrary to skeptics who argue that human rights have a “mainstreaming” and “individualizing” effect on labor movements, this research shows that by strategically embedding human rights language in their campaigns, blacklisted workers leveraged media attention and facilitated changes in trade union rights discourse. Findings suggest that the strategic mobilization of human rights differs from other mobilization efforts, since labor activists use human rights language primarily to find a sympathetic audience within a political environment in which trade unions are viewed as a regressive force in the economy.

What Is a Social Group in the Eyes of the Law? Knowledge Work in Refugee‐Status Determination

B. Robert Owens — Mon, 12 Nov 2018 21:16:54 -0800

This article explores the settling and unsettling of legal concepts in relation to refugee-status determination. To gain admission to the United States, asylum seekers are required to demonstrate a well-founded fear of persecution on the basis of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Accordingly, many political asylum claims turn on the interpretation of “particular social group.” This article examines case law disputes in the federal courts of appeals over the meaning of that phrase and describes how statutory interpretation by judges has contributed to the persistence of such disputes over several decades since the passage of the 1980 Refugee Act. My analysis reveals the tensions between different forms of rationality at play in judicial statutory interpretation and applies the concept of legal settling to a new empirical domain.

Constitutional Innovation and Animal Protection in Egypt

Kristen A. Stilt — Mon, 12 Nov 2018 21:16:54 -0800

This article examines constitutional innovation through the case study of the emergence of animal protection in Egypt's 2014 Constitution. Egypt's provision, which is a state obligation to provide al-rifq bi-l-hayawan (kindness to animals), was adopted in Article 45 as part of the country's second constitution following the 2011 revolution that ousted President Hosni Mubarak. Three aspects proved crucial to the adoption of the provision: a decision by animal protection activists to influence the constitutional process; the ability of citizens to convey their ideas to the constitutional drafters, albeit in a limited way; and, most importantly, the use of frame bridging. The activists and then the constitutional drafters presented the new cause of constitutional animal protection in terms of well-established areas of social, and constitutional, concern in the country, including Islamic law, women's rights, human rights, and the protection of the environment.

Interpreting the 2004 Moroccan Family Law: Street‐Level Bureaucrats, Women's Groups, and the Preservation of Multiple Normativities

Dörthe Engelcke — Mon, 12 Nov 2018 21:16:54 -0800

A decade after celebrating Morocco's 2004 family law as a social revolution, women's groups became dismayed by the persistence of minor marriage, polygyny, and marriage guardianship. Conventional explanations for why statutory law reform often fails to produce intended outcomes depart from the concept of the homogeneous state, pointing to insufficient enforcement mechanisms and cultural resistance to the new law within society. Arguing against this conceptualization, this article adopts the state-in-society approach. It compares how two types of street-level bureaucrats and secular and Islamist women's groups have engaged with the 2004 law. It finds that different groups have emphasized and rejected different categories and norms of the law. Street-level bureaucrats' interpretations have sometimes overlapped with those of civil society actors. The state is therefore not enforcing one normative order against cultural resistance from society; instead, different state actors are themselves actively involved in the production and preservation of multiple normativities.

Judicial Diversity in France: The Unspoken and the Unspeakable

Mathilde Cohen — Mon, 12 Nov 2018 21:16:54 -0800

Despite the importance of judicial diversity for litigants and the broader public, no previous study has examined this issue within the French judiciary. This article begins to fill this gap by using original, qualitative data that shed light on judges’, prosecutors', and other legal actors' discourses on racial, ethnic, and sexual diversity. Its main contribution is to show that these legal professionals deploy three strategies—linguistic, institutional, and geographic—to dodge or downplay the relevance of race, ethnicity, and sexual orientation. The first, linguistic, form of avoidance lies in refusing to name and discuss race and ethnicity explicitly; the second, institutional, in denying that the judiciary has a diversity problem or that the problem lies within its power; and the third, geographic, consists in relegating the issue of diversity to distant places—the United States and overseas France. The article concludes by discussing key directions for future research.

Too Dangerous to Disclose? FOIA, Courtroom “Visual Theory,” and the Legal Battle Over Detainee Abuse Photographs

Anna Veronica Banchik — Mon, 12 Nov 2018 21:16:54 -0800

As law deepens its engagement with visual data, legal scholars have expressed concern that courts all too often uphold photographic evidence as objective representations of truth, rather than as necessarily partial portrayals of reality. To combat this naïve realism in legal institutions, some are incorporating insights from media studies in calling for a jurisprudence of the visual. Drawing on an ongoing lawsuit over the disclosure of detainee abuse photographs taken in Iraq and Afghanistan after September 11, I suggest this project expand its scope to examine litigants' interpretations of images in courtrooms, as well as concerns beyond photographic objectivity that arise in disclosure disputes, including images' unique privacy implications and national security risks. Though the stakes in this case are atypical, these specific concerns are to varying degrees more germane. Having all been raised before, they are likely to be heard again, if only by a single judge or jury.

Policing Social Marginality: Contrasting Approaches

Steve Herbert, Katherine Beckett, Forrest Stuart — Mon, 12 Nov 2018 21:16:54 -0800

Urban police officers concentrate much attention on individuals who experience various forms of inequality. Some police tactics that address the socially marginal garner public concern, especially when violence occurs. Solutions to such police-community tensions are elusive, in part because police cannot meaningfully reduce inequality. Yet there are better and worse ways to police the impoverished, and we use this article to contrast three general approaches: aggressive patrol, coercive benevolence, and officer-assisted harm reduction. We contrast their operating logics and their implications for police practice and tactics. We find great merit in officer-assisted harm reduction, which is a nascent effort. Pioneered in Seattle, it helps to reorient police culture and practice and enables efforts to address some of the challenges facing many impoverished individuals. Although its widespread adoption will not eliminate police-community tension in poor communities, it is superior to other alternatives, and thus deserves replication.

Computer Vision and Machine Learning for Human Rights Video Analysis: Case Studies, Possibilities, Concerns, and Limitations

Jay D. Aronson — Mon, 12 Nov 2018 21:16:54 -0800

Citizen video and other publicly available footage can provide evidence of human rights violations and war crimes. The ubiquity of visual data, however, may overwhelm those faced with preserving and analyzing it. This article examines how machine learning and computer vision can be used to make sense of large volumes of video in advocacy and accountability contexts. These technologies can enhance the efficiency and effectiveness of human rights advocacy and accountability efforts, but only if human rights organizations can access the technologies themselves and learn how to use them to promote human rights. As such, computer scientists and software developers working with the human rights community must understand the context in which their products are used and act in solidarity with practitioners. By working together, practitioners and scientists can level the playing field between the human rights community and the entities that perpetrate, tolerate, or seek to cover up violations.

Body Cameras, Big Data, and Police Accountability

Mary D. Fan — Mon, 12 Nov 2018 21:16:54 -0800

The increase in data from police-worn body cameras can illuminate formerly opaque practices. This article discusses using audiovisual big data from police-worn body cameras, citizen recordings, and other sources to address blind spots in police oversight. Based on body camera policies in America's largest cities, it discusses two possible roadblocks: (1) data retention and deletion, and (2) limits on use for evaluation and discipline. Although recordings are retained for criminal prosecutions, retention for oversight and accountability is overlooked or is contentious. Some departments have no policy on videos concerning civil suits against the police. The retention time for non-evidentiary recordings is also much shorter. Some policies limit their use for evaluation and discipline. Transactional myopia—seeing at the case rather than the systemic level—leads to a focus on specific footage for particular cases, rather than the potential of aggregated body camera big data to reveal important systemic information and to prevent the escalation of problems.

Authoritarianism and the Internet

Bryan Druzin, Gregory S. Gordon — Mon, 12 Nov 2018 21:16:54 -0800

This article argues that Internet censorship is more fragile than is generally supposed and is, in fact, vulnerable to abrupt collapse. The volume and rapidity of online communication renders perfect policing of the Internet technologically impossible. Authoritarian governments are thus forced to rely on Internet users to police themselves in the form of self-censorship. This strategy has proven largely successful—legal ambiguity regarding what constitutes impermissible speech fosters norms of self-censorship. This reliance on self-censorship, however, renders these censorial systems susceptible to shocks. We set out a model that explains sudden breakdowns in Internet censorship that we term “cyberspeech cascades.” A cyberspeech cascade occurs when small expressions of online dissent produce large shifts in public perception regarding the acceptable limits of online expression that are, in fact, inaccurate. Online bandwagons of progressively more brazen speech proliferate into large-scale torrents of uncensored expression, triggering the temporary collapse of self-censorship norms online.

“An Unqualified Human Good”? On Rule of Law, Globalization, and Imperialism

Mark Brown — Mon, 12 Nov 2018 21:16:54 -0800

Forty years ago, E. P. Thompson praised the English rule of law forged during the bloody and fractious eighteenth century, calling it not only “an unqualified human good,” but also a “cultural achievement of universal significance.” This article examines colonial rule-of-law development as another example of law and state building. Both have relevance for contemporary rule-of-law programming in the Global South where Thompson's “cultural achievement” has resisted fabrication by legal technicians. The problems faced today are not new, for colonial rulers also engaged with complex indigenous norms and forms and sought to balance universal principles with political control imperatives. Contra arguments about colonial “lawfare,” colonial rule of law often frustrated authoritarian tendencies while developing new forms of legal subjectivity and avenues for redress of grievances. Using data from the Indian province of Punjab, the article illustrates how historical case studies might aid contemporary rule-of-law programming in the Global South.

Computer‐Assisted Legal Linguistics: Corpus Analysis as a New Tool for Legal Studies

Friedemann Vogel, Hanjo Hamann, Isabelle Gauer — Mon, 12 Nov 2018 21:16:54 -0800

Law exists solely in and through language. Nonetheless, systematical empirical analysis of legal language has been rare. Yet, the tides are turning: After judges at various courts (including the US Supreme Court) have championed a method of analysis called corpus linguistics, the Michigan Supreme Court held in June 2016 that this method “is consistent with how courts have understood statutory interpretation.” The court illustrated how corpus analysis can benefit legal casework, thus sanctifying twenty years of previous research into the matter. The present article synthesizes this research and introduces computer-assisted legal linguistics (CAL²) as a novel approach to legal studies. Computer-supported analysis of carefully preprocessed collections of legal texts lets lawyers analyze legal semantics, language, and sociosemiotics in different working contexts (judiciary, legislature, legal academia). The article introduces the interdisciplinary CAL² research group (www.cal2.eu), its Corpus of German Law, and other related projects that make law more transparent.

Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement

Ashley T. Rubin, Keramet Reiter — Mon, 12 Nov 2018 21:16:54 -0800

Solitary confinement has been a perennial tool of control in US prisons, despite its status as a repeatedly delegitimized practice. Although there have been significant changes in punishment over time, solitary confinement has remained, mostly at the margins and always as a response to past failures, part of an unending search for greater control over prisoners. This history raises the question of how a discredited penal technology can nevertheless persist. We locate the source of this persistence in prison administrators' unflagging belief in solitary confinement as a last-resort tool of control. To maintain this highly criticized practice, prison administrators strategically revise, but never abandon, discredited practices in response to antecedent legitimacy struggles. Using solitary confinement as a case study, we demonstrate how penal technologies that violate current sensibilities can survive, despite changing macro-level social factors that otherwise explain penal change and practice, provided those technologies serve prison officials' internal goals.

When Frontloading Backfires: Exploring the Impact of Outsourcing Correctional Interventions on Mechanisms of Social Control

Michael Ostermann, Jordan M. Hyatt — Mon, 12 Nov 2018 21:16:54 -0800

This study demonstrates the effects of frontloading rehabilitative services to parolees through third-party residential and community-based programs. Although outsourcing treatment responsibilities to contracted reentry facilities is an increasingly common feature of postrelease supervision, the role these facilities play in reentry management and recidivism outcomes remains largely unexplored. Here, several common recidivism outcomes for parolees who attended private treatment facilities upon release are compared to those of parolees who did not. We conducted Correctional Programs Checklist assessments on each treatment site to investigate whether recidivism outcomes vary by level of programmatic quality. Our findings indicate that parolees who receive frontloaded services are significantly less likely to be rearrested or reconvicted for new crimes within eighteen months of release. These findings held across levels of programmatic quality, with larger reductions observed for programs of higher quality, and align with broader emphases in community corrections on risk assessment and organizational demands for efficiency.

Book Notes

Mon, 12 Nov 2018 21:16:54 -0800

Law &Social Inquiry, Volume 43, Issue 4, Page 1729-1741, Fall 2018.

Issue Information

Mon, 12 Nov 2018 21:16:54 -0800

Law &Social Inquiry, Volume 43, Issue 4, Page 1141-1144, Fall 2018.

Review Section

Howard S. Erlanger — Mon, 12 Nov 2018 21:16:54 -0800

Law &Social Inquiry, Volume 43, Issue 4, Page 1633-1633, Fall 2018.

Making Sense of the Messy Sixties: Introduction to a Review Symposium on Risa Goluboff's Vagrant Nation

Christopher W. Schmidt — Mon, 12 Nov 2018 21:16:54 -0800

This essay provides a summary and critical appraisal of Risa Goluboff's Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, a book that interweaves the stories of an eclectic cast of characters who were the targets of vagrancy law prosecutions with stories of the lawyers who challenged these prosecutions. In charting the demise of what she terms a “vagrancy law regime,” Goluboff provides insights on the major social and political developments of the 1940s through the 1970s, including the labor movement, the black freedom struggle, the antiwar movement, and the sexual revolution. Goluboff's most significant achievement is her ability to identify in seemingly scattered challenges to vagrancy law a coherent and historically significant episode of constitutional change. Although I question whether the book delivers on its promise to reframe the way we understand the “long 1960s,” Vagrant Nation nonetheless offers a model of how to integrate social history and doctrinal history into a compelling narrative of constitutional change.

Constitutionalization as Statecraft: Vagrant Nation and the Modern American State

Karen M. Tani — Mon, 12 Nov 2018 21:16:54 -0800

This essay showcases the contribution of Risa Goluboff's Vagrant Nation (2016) to one field of scholarship that the book scarcely mentions: the historical literature on the American state. In Goluboff's account of the fall of the “vagrancy law regime” in the “long 1960s” I see vital questions about the nature of the modern American state and the endurance of older, seemingly antithetical modes of governance. Given the trends that state-focused scholars have illuminated—for example, toward centralization of power and the protection of individual rights—what allowed for vague, locally enforced vagrancy laws to survive so late into the twentieth century? What ultimately triggered their demise? In mining Vagrant Nation for answers, this essay also urges scholars to contemplate “constitutionalization” as a form of statecraft. In giving a constitutional law framing to the grievances of “vagrants,” federal courts reinforced key tenets of the modern American state, including the supremacy of national law over competing legal orders and the desirability of being a rights-bearing member of the nation-state. Simultaneously, these court decisions left open other, more “modern” possibilities for regulating the kinds of people (poor, nonwhite, unpopular) whom vagrancy laws once ensnared.

From the Vagrancy Law Regime to the Carceral State

Christopher Lowen Agee — Mon, 12 Nov 2018 21:16:54 -0800

The recent burst of scholarship on policing in 1960s America has produced two literatures that have often spoken past one another. One literature has taken a presentist perspective and has found in the 1960s the roots of the current carceral state. A second literature has characterized the 1960s as a period in which a century-old policing system collapsed. This essay uses Risa Goluboff's Vagrant Nation to tie these two literatures together, arguing that the terms on which Papachristou (1972) tore down the “vagrancy law regime” prompted and channeled the growth of the carceral state. The elimination of vagrancy law encouraged the state to expand the institutional and political reach of the police, ultimately helping produce a police power that was more intractable.

The Vagrancy Law Challenge and the Vagaries of Legal Change

Laura Weinrib — Mon, 12 Nov 2018 21:16:54 -0800

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

Writing Vagrant Nation

Risa L. Goluboff — Mon, 12 Nov 2018 21:16:54 -0800

In my response to reviews by Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib, I explain some of the challenges of writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s. In particular, I explore the challenge of creating narrative coherence without losing the essential multiplicity of the story or compromising my methodological commitment to constitutional history across the many actors involved in the legal change process. I ultimately constructed such coherence on three levels: narrative, thematic, and doctrinal. Narratively, I settled on a larger role for the Supreme Court than initially anticipated, while still de-centering the Court substantively, methodologically, and causally. I located thematic coherence largely in a new vision of the “sixties.” The decade that emerges was marked by a common claim against the idea that everyone had a proscribed place from which they could not escape; an evolving if incomplete effort to disentangle difference from danger; and the crucial role of both sympathy and empathy in the success of the challenge to vagrancy laws. Though numerous legal arguments ran through that challenge, doctrinal multiplicity—the refusal to flatten or narrow the complex set of arguments and harms that vagrancy cases presented—became its own form of coherence.

Lawyers and the Conservative Counterrevolution

Ann Southworth — Mon, 12 Nov 2018 21:16:54 -0800

What roles have lawyers played in the conservative counterrevolution in US law and public policy? Two recent books, Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (2016), and Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015), speak to the question. This essay explores how these books relate to a larger story of the conservative legal movement and the roles that lawyers and their organizations and networks have played in the conservative turn in American law and politics. It highlights four interrelated threads of the movement's development: creating a support structure for conservative legal advocacy; remaking the judiciary and holding judges accountable; generating, legitimizing, and disseminating ideas to support legal change; and embracing legal activism to roll back government. The essay then considers a continuing challenge for the movement: managing tensions among its several constituencies. Finally, it suggests how this story has played out in litigation to challenge campaign finance regulation.

Jurors' Subjective Experiences of Deliberations in Criminal Cases

Alix S. Winter, Matthew Clair — Mon, 12 Nov 2018 00:00:00 -0800

Research on jury deliberations has largely focused on the implications of deliberations for criminal defendants' outcomes. In contrast, this article considers jurors' outcomes by integrating subjective experience into the study of deliberations. We examine whether jurors' feelings that they had enough time to express themselves vary by jurors' gender, race, or education. Drawing on status characteristics theory and a survey of more than 3,000 real-world jurors, we find that the majority of jurors feel that they had enough time to express themselves. However, blacks and Hispanics, and especially blacks and Hispanics with less education, are less likely to feel so. Jurors' verdict preferences do not account for these findings. Our findings have implications for status characteristics theory and for legal cynicism among members of lower-status social groups.

The Aspiration of Scientific Policing

David Thacher — Tue, 31 Jul 2018 02:12:45 -0700

Weisburd, David, and Malay Majmundar, eds. Proactive Policing: Effects on Crime and Communities. Washington, DC: National Academies Press, 2018.

Over the past three decades, policing scholars have increasingly emphasized research that investigates the impact of well-defined policing strategies on crime, trust, and other community outcomes. The National Academies of Sciences, Engineering, and Medicine's Proactive Policing: Effects on Crime and Communities (2018) provides a thorough, balanced, and wide-ranging review of what this body of research has taught us. In the process, it invites critical questions about the “evidence-based policing” agenda that inspires this work. I argue that this agenda has distorted our understanding of contemporary policing more than it has clarified it. Despite the growing methodological sophistication of contemporary scholarship, its conceptualization of policing practice cannot come to terms with the inherent complexity of police work, and the consequentialist moral framework it relies on is a poor match for the intricate normative structure of policing. In places, however, Proactive Policing also suggests the possibility and value of a very different research agenda—one that seeks to refine the framework of values that police and those who hold them accountable rely on to guide their continually evolving practices.

When the Death Penalty Goes Public: Referendum, Initiative, and the Fate of Capital Punishment

Fri, 20 Apr 2018 02:45:43 -0700

This article considers what happens when the death penalty is put on the ballot. It reviews the history of referenda/initiatives concerning capital punishment from the start of the twentieth century to the present. That history reveals the role that referenda/initiatives have played in struggles against and within governmental institutions. In addition, we find that abolitionists seldom prevail in those electoral contests. We consider the implications of these findings for the prospects that the death penalty could be ended democratically.

The Judicial Politics of Burqa Bans in Belgium and Spain—Socio‐Legal Field Dynamics and the Standardization of Justificatory Repertoires

Marian Burchardt, Zeynep Yanasmayan, Matthias Koenig — Wed, 11 Apr 2018 22:12:55 -0700

Over the past decade, controversies over Muslim women's face veiling have become increasingly widespread in societies across Europe. This article comparatively explores the socio-legal dynamics of claims making by proponents and opponents of prohibiting full-face coverings in Belgium and Spain. In Belgium, a federal ban of full-face coverings was adopted in July 2011 and, after intensive judicial struggles, received judicial validation by the Constitutional Court in 2012. In Spain, local burqa controversies led to municipal bans in the region of Catalonia in 2010, which were annulled by the Supreme Court in 2013 after effective legal counter-mobilizations. In spite of the diverging legal outcomes, we argue that justificatory repertoires have become increasingly standardized as burqa controversies are transposed from locally embedded political fields to transnationally structured judicial fields. We suggest that this standardization of justificatory repertoires in the long run facilitates the rapid spread of burqa bans across Europe.

Fairness at Trial: The Impact of Procedural Justice and Other Experiential Factors on Criminal Defendants' Perceptions of Court Legitimacy in Poland

Stanislaw Burdziej, Keith Guzik, Bartosz Pilitowski — Tue, 10 Apr 2018 00:59:21 -0700

A large body of research supports the procedural justice hypothesis that quality of treatment matters more than outcomes for institutional legitimacy. How fairness matters across legal institutions and geographic settings remains an open question, however. This article uses a survey of criminal defendants to test the factors associated with perceived legitimacy of courts in Poland, a country whose judiciary is currently subject to intense political contestation. The findings confirm the primacy of procedural justice, while also illustrating the influence of instrumental performance factors such as time and court organization. This suggests that in contexts of political transition with disputed legal institutions, citizens' contact with procedurally fair, operationally efficient institutions can support the legitimacy of authorities and strengthen the rule of law.

Slavery and Just Compensation in American Constitutionalism

Stephan Stohler — Thu, 25 Jan 2018 00:00:00 -0800

The existence of compensation clauses, guaranteeing compensation when governments took private property, in antebellum state constitutions varied considerably across states and over time. Existing explanations struggle to account for such variation. I argue that slavery had an important, though varied, influence, depending on the changing strategic behavior of proslavery constitutional drafters. Proslavery delegates opposed compensation when they expected to control political decision making, but supported compensation when uncertain. This argument identifies another way that slavery impacted US constitutional development, and further suggests that American rights development resembles the experiences of other countries where elite interests were threatened.

A Grassroots History of Colorblind Conservative Constitutionalism

Ariela Gross — Mon, 15 Jan 2018 00:00:00 -0800

In this article, I argue that colorblind conservative constitutionalism has its roots not only in Supreme Court jurisprudence and the machinations of national political actors, but also in the deliberate campaigns of opponents of integration at the grassroots. On the local level, resistance to integration was not confined to the South. I offer a case study of grassroots activism in Los Angeles, where white citizens opposed black efforts to integrate schools and housing using the language of freedom of association and freedom of choice. Although this language originated in race-conscious political action, it became the basis for race-neutral opposition to big government and taxes, and support for “school choice.” Formal colorblind conservatism in the courts did not legally ratify changes that happened naturally, socially, through individual actions; on the contrary, grassroots conservatives consciously pursued legal strategies to fight integration from the ground up as well as from the top down.

Producing Expertise in a Transitional Justice Setting: Judges at Rwanda's Gacaca Courts

Hollie Nyseth Brehm, Christi Smith, Evelyn Gertz — Thu, 04 Jan 2018 00:00:00 -0800

In the aftermath of the 1994 Genocide Against the Tutsi, the Government of Rwanda created courts to hold hundreds of thousands of suspected génocidaires accountable. Faced with an unprecedented volume of cases, each community elected lay judges known as inyangamugayo to preside over the court proceedings. With no prior legal training, these individuals held trials for a decade, levying sentences ranging from minor fines to life in prison. This article draws from forty-six interviews with former inyangamugayo to make two primary contributions. First, we examine how professional boundaries shifted during a period of upheaval such that laypeople performed tasks typically undertaken by professionals. Second, we highlight the centrality of social capital—and, more specifically, reputations—in the inyangamugayo's election and tasks. In doing so, we illustrate how the inyangamugayo leveraged their reputations to secure the cooperation of fellow community members in adjudicating crimes of genocide.

International Judges on Constitutional Courts: Cautionary Evidence from Post‐Conflict Bosnia

Alex Schwartz — Wed, 22 Nov 2017 00:00:00 -0800

Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia's foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court's tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

The Narrative of the Number: Quantification in Criminal Court

Mona Lynch — Wed, 22 Nov 2017 00:00:00 -0800

Scholars have documented the explosion in quantification of social phenomena within organizational settings. A key site of the quantitative turn has been in the penal-legal field, with purported transformative effects. This article draws from a field research project examining the on-the-ground implementation of the federal sentencing guidelines to explore how the guidelines' numbers-based logic is both articulated and reconstituted by legal actors in the adversarial process. Complementing macro-level work that examines the transformative effects of quantification at the social-structural level, I take a micro-level, empirically grounded approach that analytically focuses on day-to-day interactions in court to reveal quantification's possibilities and limits. I identify three adversarial strategies that narrate the meaning of the guideline calculation to demonstrate how the complex quantitative guidelines system becomes incorporated into narrative form to know, assess, and judge legal subjects.