Law & Policy最新文献

In recent years, the Court has swung sharply to the right but has thus far declined to support the most antidemocratic and radically authoritarian agendas of the Trumpist wing of the Republican Party. While scholars and concerned Americans have focused on the visible things the Court is dismantling and fretted about its potential for enhancing constitutional rot, this article sketches out what the Court is building. It illustrates that this constructive process is distinctive not just in its political and partisan orientation but also in the Court's capacity to achieve it. Considering the emerging product of its recent jurisprudence suggests an embrace of a narrowed form of democracy that empowers a subset of political actors to build their idealized visions of the state, primarily at the subnational level.

This paper assesses the performance of the Supreme Court as democratic guardrail during five prior periods of democratic crisis in the United States. It finds that most such periods witnessed efforts by the governing regime to entrench themselves in power, and that the Court has rarely provided an effective check on such democratic abuses. Rather than serving as a reliable democratic guardrail, the Court has regularly exercised what Dixon and Landau call “weak-form abusive judicial review”; that is, it has declined to check attacks on democracy emerging from other centers of power. On one occasion, the Court has undermined democracy even more directly via “strong-form abusive judicial review”; that is, the Court itself attacked key democratic guardrails. This historical record provides a helpful baseline for evaluating the Court's performance during the Trump era, when it has taken actions that both protect and undermine democratic health. Conflicting signs indicate that the Court is playing a more democracy-protective role than most of its predecessors in some respects, but a more democracy-undermining role in others. As such, it is too soon to say with confidence whether the contemporary Court will be remembered, on balance, for resolving or exacerbating a system-threatening constitutional crisis.

What are the after-effects of the Bosnia and Herzegovinian (BH) transition from a post-socialist, post-genocide, and post-ethno-nationalist state into a European liberal democracy? This article makes a case for war reparation and argues that while poverty reduction has not been among the stated aims of transitional justice mechanisms, it is of critical importance to study war victims' deprivation in the context of historical patterns of structural injustice and examine liberal reconstruction policies that failed to provide compensation and legal redress for gross violations of human rights and serious violations of humanitarian law. The article uses the historical sociology approach as a method of analysis to investigate how moving away from a socialist to a capitalist economic model, from war to peace, and from one party political system to liberal democracy has resulted in structural injustice and growing levels of poverty that adversely impact most vulnerable Bosnians. The article presents an argument that the lack of post-war reparation programs, coupled with an inadequate emphasis on political regime change, poverty reduction programs and social and economic rights such as access to welfare, cash assistance, food, transportation, education, pension, and disability benefits to ensure the quality of living is detrimental to everyday lives of war victims and people who live at the bottom of the society.

This paper empirically examines the impact of investment treaties on domestic governance in developing countries, through cross-country quantitative analysis and a detailed qualitative case-study on Myanmar. We clarify a variety of mechanisms that plausibly link investment treaties to impacts on domestic governance. Considering incentive, acculturative and political economy mechanisms, we find little evidence that the treaties lead to changes in domestic law, institutional structure or policy-making. The treaties also have surprisingly limited relevance in investor-state bargaining outside formal adjudicatory processes. Overall, our findings point to a profound decoupling between investment treaties and domestic governance; they also clarify the conditions under which such decoupling can persist, notwithstanding material incentives for states to ensure tighter alignment. Rather than interpreting decoupling as a failure of domestic implementation, our case study suggests that the problem is with the treaties themselves, in that they place obligations on developing countries that cannot realistically be implemented.

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release. Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts. Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing. Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details. Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays. Less stable workgroups had higher rates of denial of petitions for resentencing. Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

This paper draws on an expansive archive of internal government records obtained using the US Freedom of Information Act to examine federal, state and local police practice within the United States' 100-mile border zone. Analysis of this archive reveals a large number of “border” enforcement events that involve the arrest of US citizens, lawful permanent residents and others with deep roots in US communities. It further shows how, regardless of where US Border Patrol agents operate, those whom they target overwhelmingly tend to be persons of Latin American origin. Reflecting on these enforcement patterns, the paper argues for the troubling of categorical distinctions between “border” and “interior” enforcement that permeates scholarly, popular and journalistic accounts of the contemporary geography of mass deportation in the United States. As an alternative, the paper calls for greater attention to the “intensity” of immigration policing, as a way to account for multiple overlapping pathways of enforcement and to diagnose how the networked interconnectivity of agencies, personnel, resources and infrastructures involved in these activities amplifies the risks of racial profiling, arrest, and a host of related downstream consequences (family separation, financial hardship, diminished educational performance, and adverse health outcomes) for US citizens and noncitizens alike.

While the literature on regulatory compliance is extensive, little scholarly attention has focused on how companies respond to conflicting regulatory requirements. As a case in point, gas pipelines and networks—deemed monopolies—are subject to economic regulation to emulate the price pressures of competition and encourage “efficient” expenditure. Technical (safety) regulation of the same infrastructure also addresses an expenditure trade-off with safety, potentially drawing different conclusions as to the most appropriate balance. This article reports on a study—drawing on 49 interviews, document review and case studies—analyzing if these two regulatory regimes, as enacted in Australia, are in conflict. We find a significant tension between the two regimes, exhibited through the impact that economic regulation has on a company's planned safety-related expenditure and thus, long-term public safety outcomes may be at risk. Australian safety regulation is performance-based, requiring “reasonably practicable” measures are in place to minimize risk to the public. The San Bruno California disaster, in which eight people died as a result of failed gas infrastructure in the US, shows that such regulatory conflicts also exist in jurisdictions that have adopted prescriptive forms of safety regulation.

In Illinois vs. Wardlow (2000), the U.S. Supreme Court ruled that presence in a “high-crime” area is one factor that police can consider when establishing reasonable suspicion to justify a Terry stop. Some legal scholars argue that through this decision the Court propagated inequity in police stops by setting a lower evidentiary standard for establishing reasonable suspicion in neighborhoods with greater numbers Black residents, which are more likely than White neighborhoods to be considered crime hot spots. To assess these claims, I analyze pedestrian stop data from the Chicago Police Department for the years 2016 and 2017. Using spatial regression techniques, I evaluate relationships between neighborhood measures of Black disadvantage, police stop justifications, and “hit rates” of stops. The results suggest that reasonable suspicion is uniquely constructed in disadvantaged Black neighborhoods but that this does not result in significantly different enforcement rates. Based on these results, I argue that policing scholars must reconsider sources of inequity in policing and, in particular, consider the role of the law in shaping these outcomes.

During the first year of the COVID-19 pandemic in the United States, the coordination and cooperation between the federal government and the states failed. American governors were thus tasked with making critical public health policy choices—under extreme uncertainty—with varying institutional capacities, partisan pressures, and state demographic differences. Yet most of the nation's governors chose to impose a face covering or mask mandate to limit the spread of cases. We collected each governor's executive order that mandated the conditions under which their residents would be required to wear a mask and employed a sentiment analysis program to extract key qualities of crisis leadership communication. Our analyses provide insights into the institutional and partisan factors that determined a face mask mandate as well as the institutional, demographic, and leadership communication qualities that affected the total number of cases per capita in the states. Our findings have important implications for post-pandemic policy recommendations with respect to the effectiveness of policies that seek to lower the transmission of viruses in public spaces and the characteristics of impactful public health messaging by government leaders.

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.