Law & Policy最新文献

How does regulation change in authoritarian polities that tightly control public discourse and social mobilization? Socio-legal theories assume that regulation changes through intersubjective dialogical exchanges that persuade regulators to alter how they perceive social problems and the appropriate regulatory responses. Although this framework captures regulatory change in transparent dialogical spaces, it misses much of the regulatory story in the opaque discursive processes that order authoritarian polities. This article turns to sociological institutional theory—a non-dialogical theory to understand regulatory change in Vietnam's authoritarian polity. It investigates how commercial regulation in Vietnam has responded to an emerging mixed-market economy, at the same time the state has suppressed public dialogical challenges to socialist ideology. It concludes that regulatory change occurs when regulators respond to economic and social crises and layer new ideational components onto old programmatic ideas, converting them to new uses.

Governmental responses to the COVID-19 global pandemic have generated numerous constitutionals, policy, legal, and political-economic debates. Scholarly engagements with the sociolegal and policy consequences of the COVID-19 pandemic have been dominated by discussion on the role of emergency powers, the suspension of individual civil liberties, the suspension of economic rules in order to guarantee economic survival, and social regulation of public spaces and of workplaces. This paper aims to explore how a critical sociolegal scholarship can contribute to a more sophisticated understanding of the role of law in creating the unequal conditions that propitiated the COVID-19 pandemic and that might enable further crises. This introduction offers a roadmap for theorizing the limits of law, the operationalization of emergency powers and the different policies implemented by global south and north countries in response to the pandemic. This introduction is structured as follow: (1) provides a general overview of the law and society tradition and its engagement with the COVID-19 pandemic; (2) engages with three key consequences of the pandemic, labor, and the lockdown; colonial implications; and the limits of law; (3) introduces the papers in this special issue; (4) sketches a proposal for the critical sociolegal scholarship of law and crises.

Foreign workers holding H-1B visas gained recourse to federal employment rights under the Immigration & Nationality Act (INA) for the very first time when Congress passed the Immigration Act of 1990 (IMMACT90). This paper examines H-1B employment rights enforcement under the INA as it has intersected with broader features of the American legal system: what political scientists call judicial retrenchment and the quasi-judicial state. I first show how H-1B rights, already limited by the domestic politics that shaped the IMMACT, became subject to judicial retrenchment when the federal courts confined H-1B disputes under the INA to the quasi-judicial state at the Department of Labor (DOL). I then use published data on DOL investigation outcomes, published and unpublished administrative case records, and judicial cases reviewing agency action to examine the extent to which and how H-1B workers can use the quasi-judicial state to solve workplace problems. My empirical findings contribute to a new understanding of the relationship between rights retrenchment, the judiciary, and the rise of alternatives to court in immigration and employment law and point to possible fine-grained changes for future immigration reform.

Thirty-five Muslim-majority and 18 Muslim-minority countries formally integrate Muslim Family Laws (MFLs) into their legal systems and enforce them through state courts. Both Muslim-majority and Muslim-minority governments have undertaken legislative reforms to alleviate the effects of religious laws on fundamental human rights, increase accountability and accessibility, and strengthen the rule of law within their MFL systems. Extant literature is silent on whether MFLs are more reformed or more human rights and the rule of law compliant in Muslim-majority or Muslim-minority countries. Utilizing a novel methodological tool, the MFL Index, this exploratory article surveys cross-national and historical trends in MFL reform (1946–2016). It shows that Muslim-majority and -minority governments have opted for different forms of legislative reform. Muslim-majority countries favored substantive reform, while Muslim-minority states prioritized exit reforms. The type and extent of reform were strongly associated with colonial heritage, secularism, women's activism, ethnoreligious diversity, and prevailing multicultural arrangements. These findings have implications for studying multicultural theory, human/women's rights, and democratization in the Muslim world and beyond.

The article presents a case study focusing on the Belgian approach to deal with migrant smuggling and more broadly on the governance of migrants in transit on its territory. Drawing from the literature on jurisdiction and scales and combining it with the scholarship on bureaucrats' decision making, the article sheds light on the messy dynamics and realities of legal governance of migrants transiting through Belgium in their journey to the United Kingdom. By focusing on the multilayered nature of the issue, the distinct legal regimes and the various actors involved, the article argues that the jurisdictional separation of the realms of criminal and administrative law enables a decision to mobilize a set of law over or in combination with another. The article explores the situation at the local and national scales and, as jurisdictions overlap and competences are scattered between distinct entities and actors, specific attention is paid to “passing the buck” behaviors and discourses which have substantial consequences for the situation of migrants in transit in Belgium.

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.

Despite the growing literature on legal mobilization under authoritarianism, the variations of legal mobilization in authoritarian regimes have been less studied. Drawing on a fuzzy set qualitative comparative analysis of 175 environmental public interest litigations from 2009 to 2019, as well as in-depth interviews with environmental nongovernmental organizations (NGOs) representatives, this is the first article to present how organizational, political, legal, and social forces (which are demonstrated by six conditions: capacity, political embeddedness, political endorsement, access, legal stock, and alliance) combine to explain the variations of NGOs' environmental legal mobilization through the use of strategic and nonstrategic litigation in authoritarian China. Although the state's policy to pluralize regulatory actors to improve environmental governance has set up a relatively friendly institutional backdrop for environmental legal mobilization, this study finds that political forces such as the relationship between NGOs and the state and the ambivalent attitudes towards environmental protection between central and local government have significantly influenced the behavioral patterns of NGOs' legal mobilization. Moreover, this study uncovers four types of legal mobilization of Chinese environmental NGOs: allied mobilization, progressive mobilization, steered mobilization, and symbolic mobilization. This study enriches the understanding of the behavioral patterns of nonstate actors in legal mobilization in authoritarian regimes and beyond.

While all but one U.S. law school and every state bar ask about criminal history on their admissions application, such inquiries vary considerably in the depth of information sought. One potential explanation for variations in the depth of criminal history inquiries among law schools and state bars relates to minority threat dynamics. Drawing on data quantifying the depth of criminal history inquiries for 190 ABA-approved law schools and all state bars, as well as school and state demographics, this study explores the issue for the first time. Negative binomial regressions reveal that law schools and state bars located in states with larger Black and Latino populations employ more probing criminal history inquiries. We also find that this relationship is parabolic—where the minority threat effect is negative in states with a critical mass of Black/Latino residents. Finally, minority threat effects for law school criminal history inquiries are moderated by state bar criminal history inquiries, suggesting that law schools are cued by state bar policies. These results provide some support for minority threat theory, informing debates about the continued use of criminal history inquiries to screen prospective law students and lawyers, and the inclusiveness of the legal profession generally.

Although judicial empowerment has become increasingly common worldwide, the expansion of judicial powers in authoritarian countries faces persistent obstacles, such as institutional dependence, lack of political clout, and the repression of civil society. Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco-environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments' tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.