Executive clemency is a discretionary power to grant legal mercy and is rarely given. Using data from contemporary clemency hearings in four states, I explore how state actors use commutation hearings as sites to exert social control and communicate hegemonic ideology. Clemency board members use hearings as sites to communicate the behaviors and attitudes they desire from applicants, aiming to generate compliance and consent. These state actors use the ritual of the clemency process and the hope afforded by the possibility of legal mercy as tools to motivate desired behaviors and beliefs among those in prison both explicitly and implicitly in these hearings. Such behaviors and beliefs, accordingly, are those that serve to reinforce the control and power of the state.
{"title":"Mercy and the Construction of Social Control: A Four-Site Analysis of Clemency","authors":"Veronica L. Horowitz","doi":"10.1017/lsi.2023.68","DOIUrl":"https://doi.org/10.1017/lsi.2023.68","url":null,"abstract":"Executive clemency is a discretionary power to grant legal mercy and is rarely given. Using data from contemporary clemency hearings in four states, I explore how state actors use commutation hearings as sites to exert social control and communicate hegemonic ideology. Clemency board members use hearings as sites to communicate the behaviors and attitudes they desire from applicants, aiming to generate compliance and consent. These state actors use the ritual of the clemency process and the hope afforded by the possibility of legal mercy as tools to motivate desired behaviors and beliefs among those in prison both explicitly and implicitly in these hearings. Such behaviors and beliefs, accordingly, are those that serve to reinforce the control and power of the state.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136282494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the United States in the early twentieth century, state and local laws discriminating on the basis of alienage proliferated. Progressive reformers, nativist groups, state legislatures, and city councils sought new methods for restricting noncitizen access to the workplace and the marketplace. As this article demonstrates, the primary vehicle they utilized was state and local licensing laws. Licensing proved to be a powerful tool of exclusion; by 1930, citizenship-based licensing restrictions were present in every state and most major cities. Noncitizens challenged some of these laws, pushing for greater protection of their constitutional rights. The resulting court contests over exclusionary licensing laws led to the creation of a new branch of legal doctrine, one that redefined the relationship between noncitizens and state power. This article highlights the significant and underappreciated role played by state and local laws in shaping the immigrant experience in the Progressive Era. It furthers our understanding of the licensing power and illuminates a pivotal moment in the development of immigrant rights. Today, noncitizens are still excluded from a range of economic activities due to licensing restrictions. This article explores the roots and the spread of this little understood – and still consequential – technique of exclusion.
{"title":"Exclusion from Within: Noncitizens and the Rise of Discriminatory Licensing Laws","authors":"Allison Brownell Tirres","doi":"10.1017/lsi.2023.61","DOIUrl":"https://doi.org/10.1017/lsi.2023.61","url":null,"abstract":"In the United States in the early twentieth century, state and local laws discriminating on the basis of alienage proliferated. Progressive reformers, nativist groups, state legislatures, and city councils sought new methods for restricting noncitizen access to the workplace and the marketplace. As this article demonstrates, the primary vehicle they utilized was state and local licensing laws. Licensing proved to be a powerful tool of exclusion; by 1930, citizenship-based licensing restrictions were present in every state and most major cities. Noncitizens challenged some of these laws, pushing for greater protection of their constitutional rights. The resulting court contests over exclusionary licensing laws led to the creation of a new branch of legal doctrine, one that redefined the relationship between noncitizens and state power. This article highlights the significant and underappreciated role played by state and local laws in shaping the immigrant experience in the Progressive Era. It furthers our understanding of the licensing power and illuminates a pivotal moment in the development of immigrant rights. Today, noncitizens are still excluded from a range of economic activities due to licensing restrictions. This article explores the roots and the spread of this little understood – and still consequential – technique of exclusion.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135243086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How do transnational lawyers valorize their expertise in a political and economic crisis? This article argues that knowing how transnational lawyers valorize their expertise is critical to understanding how transnational law evolves and affects society, especially when existing legal frameworks prove to be inadequate and novel practices must pave new paths. Using the acute phase of the Eurozone crisis between 2010 and 2012 as an empirical case, I examine how European Union (EU) legal agents constructed a framework that accommodated the uncertainty of governing a crisis while also mediating the contentious politics between EU Member States. The analysis shows that as intergovernmental bargaining dominates Eurozone crisis governance, EU legal advisors intervene to reconcile these bargains with the EU legal order using novel practices that simultaneously valorize their legal expertise. These practices in effect engender a high degree of interdependence and interconnection between the EU legal order and several intergovernmental arrangements—especially the European Stability Mechanism—leading to the creation of a unique form of EU governance: semi-intergovernmentalism. This article contributes to debates on legal globalization by empirically examining how transnational legal agents valorize their expertise through strategies directed at defending their autonomy while protecting the normative coherence of their transnational legal order: the EU.
{"title":"Legal Strategies at the Governance Precipice: Transnational Lawyers in the European Union’s Sovereign Debt Crisis (2010–2012)","authors":"Nicholas Haagensen","doi":"10.1017/lsi.2023.67","DOIUrl":"https://doi.org/10.1017/lsi.2023.67","url":null,"abstract":"How do transnational lawyers valorize their expertise in a political and economic crisis? This article argues that knowing how transnational lawyers valorize their expertise is critical to understanding how transnational law evolves and affects society, especially when existing legal frameworks prove to be inadequate and novel practices must pave new paths. Using the acute phase of the Eurozone crisis between 2010 and 2012 as an empirical case, I examine how European Union (EU) legal agents constructed a framework that accommodated the uncertainty of governing a crisis while also mediating the contentious politics between EU Member States. The analysis shows that as intergovernmental bargaining dominates Eurozone crisis governance, EU legal advisors intervene to reconcile these bargains with the EU legal order using novel practices that simultaneously valorize their legal expertise. These practices in effect engender a high degree of interdependence and interconnection between the EU legal order and several intergovernmental arrangements—especially the European Stability Mechanism—leading to the creation of a unique form of EU governance: semi-intergovernmentalism. This article contributes to debates on legal globalization by empirically examining how transnational legal agents valorize their expertise through strategies directed at defending their autonomy while protecting the normative coherence of their transnational legal order: the EU.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135635211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines aspirational laws in a randomized field experiment. We analyze the impact of an unenforced public smoking ban on individual behavior and attitudes. The findings indicate that aspirational laws, like public smoking bans, can make rights holders sensitive to behavior that violates their rights, irrespective of the material consequences of infringements and their personal views about the law. The results present a mixed position in the debate between rights-based social movement lawyering and critics of hollow rights. On the one hand, aspirational laws can create unforeseen social frictions when rights are declared, but their implementation and enforcement are ineffective. On the other hand, aspirational laws may also have self-fulfilling potential. Due to the adverse experience of rule breaking, rights holders may seek enforcement and compliance even if the law fails to influence public beliefs.
{"title":"Aspirational Laws in Action: A Field Experiment","authors":"Ben Depoorter, Stephan Tontrup","doi":"10.1017/lsi.2023.48","DOIUrl":"https://doi.org/10.1017/lsi.2023.48","url":null,"abstract":"This article examines aspirational laws in a randomized field experiment. We analyze the impact of an unenforced public smoking ban on individual behavior and attitudes. The findings indicate that aspirational laws, like public smoking bans, can make rights holders sensitive to behavior that violates their rights, irrespective of the material consequences of infringements and their personal views about the law. The results present a mixed position in the debate between rights-based social movement lawyering and critics of hollow rights. On the one hand, aspirational laws can create unforeseen social frictions when rights are declared, but their implementation and enforcement are ineffective. On the other hand, aspirational laws may also have self-fulfilling potential. Due to the adverse experience of rule breaking, rights holders may seek enforcement and compliance even if the law fails to influence public beliefs.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135635216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study challenges the conventional approach to the appropriate indicators of individual success in community courts (CCs) by exploring the different meanings that CC professionals ascribe to the term “success.” CCs conduct a non-adversarial process in which team members collaborate to provide a comprehensive rehabilitative intervention for recidivist participants. We conducted fifty-three in-depth interviews with CC personnel between 2016 and 2020. According to the interviewees, standard evaluation measures such as program completion, reduced recidivism, and systemic reduction of incarceration are necessary for evaluating these courts. Yet individual success is relative, subjective, multidimensional, and must be understood as a continuum. Therefore, it should also be measured by looking at significant processes of change that participants have undergone in various aspects of their lives. Study findings can be translated into measurable well-being indicators, moving the “what works” discourse forward to include more nuanced and diverse manifestations of success in studies evaluating specialized courts.
{"title":"Many Shades of Success: Bottom-up Indicators of Individual Success in Community Courts","authors":"Hadar Dancig-Rosenberg, Tali Gal","doi":"10.1017/lsi.2023.58","DOIUrl":"https://doi.org/10.1017/lsi.2023.58","url":null,"abstract":"This study challenges the conventional approach to the appropriate indicators of individual success in community courts (CCs) by exploring the different meanings that CC professionals ascribe to the term “success.” CCs conduct a non-adversarial process in which team members collaborate to provide a comprehensive rehabilitative intervention for recidivist participants. We conducted fifty-three in-depth interviews with CC personnel between 2016 and 2020. According to the interviewees, standard evaluation measures such as program completion, reduced recidivism, and systemic reduction of incarceration are necessary for evaluating these courts. Yet individual success is relative, subjective, multidimensional, and must be understood as a continuum. Therefore, it should also be measured by looking at significant processes of change that participants have undergone in various aspects of their lives. Study findings can be translated into measurable well-being indicators, moving the “what works” discourse forward to include more nuanced and diverse manifestations of success in studies evaluating specialized courts.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135819627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the development of international human rights standards and oversight mechanisms directed at addressing the negative effects of imprisonment. We identify this as the rules-based prison-regulation project, widely endorsed by international organizations and legal scholars. However, with a focus on the United Nations Standard Minimum Rules for the Treatment of Prisoners, we argue that this project has inherent limitations, as it is based on (a) a reductive understanding of carceral harms and (b) a rule-centric ontology of prisons. By challenging these foundations, we explore whether the project exemplifies “cruel optimism” (Berlant, 2011), where the pursuit of improved prison regulation could inadvertently hinder societal flourishing. We argue that the continuous search for new and better prison standards may perpetuate rather than alleviate the problems associated with imprisonment unless accompanied by explicit strategies for countering prison growth and dramatically reducing prisoner numbers, for building the democratic power of prisoners and communities targeted by imprisonment, and continual linkages between prison conditions and the wider political-economic institution of imprisonment. We conclude that engaging with prisons as sites of relational power in practice must underlie any quest to reduce the harms of imprisonment.
{"title":"The Cruel Optimism of International Prison Regulation: Prison Ontologies and Carceral Harms","authors":"Tom Kemp, Philippa Tomczak","doi":"10.1017/lsi.2023.63","DOIUrl":"https://doi.org/10.1017/lsi.2023.63","url":null,"abstract":"This article examines the development of international human rights standards and oversight mechanisms directed at addressing the negative effects of imprisonment. We identify this as the rules-based prison-regulation project, widely endorsed by international organizations and legal scholars. However, with a focus on the United Nations Standard Minimum Rules for the Treatment of Prisoners, we argue that this project has inherent limitations, as it is based on (a) a reductive understanding of carceral harms and (b) a rule-centric ontology of prisons. By challenging these foundations, we explore whether the project exemplifies “cruel optimism” (Berlant, 2011), where the pursuit of improved prison regulation could inadvertently hinder societal flourishing. We argue that the continuous search for new and better prison standards may perpetuate rather than alleviate the problems associated with imprisonment unless accompanied by explicit strategies for countering prison growth and dramatically reducing prisoner numbers, for building the democratic power of prisoners and communities targeted by imprisonment, and continual linkages between prison conditions and the wider political-economic institution of imprisonment. We conclude that engaging with prisons as sites of relational power in practice must underlie any quest to reduce the harms of imprisonment.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135412483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Theories of vigilantism frequently locate its cause in the ineffectiveness of the state legal system. The state legal system does not work for some, so they take the law into their own hands. Even in communities where vigilantism is prevalent, however, only certain harms are met with vigilantism. Why are some harms met with violence while others are not? To explore this question, I draw on nine months of fieldwork in the eastern Democratic Republic of Congo, a nation with a largely ineffective state legal system and the presence of vigilantism. Yet vigilante remedies are largely reserved for harms attributed to witchcraft, and typically only particularly serious witchcraft harms. In this article I draw on the concept of legal consciousness to understand why people might turn to vigilantism in response to witchcraft. I develop two themes of legal consciousness—a disconnect in harm naming and different logics of justice—that help explain dynamics vigilantism. My research thus contributes to the scholarship on both vigilantism and legal consciousness.
{"title":"Legal Consciousness and Vigilantism: Seeking Justice for Witchcraft Harms in the Eastern Democratic Republic of Congo","authors":"Holly Dunn","doi":"10.1017/lsi.2023.56","DOIUrl":"https://doi.org/10.1017/lsi.2023.56","url":null,"abstract":"Theories of vigilantism frequently locate its cause in the ineffectiveness of the state legal system. The state legal system does not work for some, so they take the law into their own hands. Even in communities where vigilantism is prevalent, however, only certain harms are met with vigilantism. Why are some harms met with violence while others are not? To explore this question, I draw on nine months of fieldwork in the eastern Democratic Republic of Congo, a nation with a largely ineffective state legal system and the presence of vigilantism. Yet vigilante remedies are largely reserved for harms attributed to witchcraft, and typically only particularly serious witchcraft harms. In this article I draw on the concept of legal consciousness to understand why people might turn to vigilantism in response to witchcraft. I develop two themes of legal consciousness—a disconnect in harm naming and different logics of justice—that help explain dynamics vigilantism. My research thus contributes to the scholarship on both vigilantism and legal consciousness.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135095596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much of the social and economic inequality that sexual harassment perpetuates is created in the workplace. But research has not always acknowledged the fluid and changing nature of workspaces. This article argues that irregular workspaces and activities—bars and other social drinking sites at which yingchou (business drinking activities) take place, team building, and the WeChat social media platform—are significant sites of sexual harassment in China. These irregular workplaces play a significant role in working life in China, and their informality has made them prone to sexual harassment in the context of deeply entrenched gender norms and vertical power hierarchy.
{"title":"Sexual Harassment in Irregular Chinese Workplaces: Business Dinners, Team-Building Activities, and Social Media","authors":"Jiahui Duan","doi":"10.1017/lsi.2023.57","DOIUrl":"https://doi.org/10.1017/lsi.2023.57","url":null,"abstract":"Much of the social and economic inequality that sexual harassment perpetuates is created in the workplace. But research has not always acknowledged the fluid and changing nature of workspaces. This article argues that irregular workspaces and activities—bars and other social drinking sites at which yingchou (business drinking activities) take place, team building, and the WeChat social media platform—are significant sites of sexual harassment in China. These irregular workplaces play a significant role in working life in China, and their informality has made them prone to sexual harassment in the context of deeply entrenched gender norms and vertical power hierarchy.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135351923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Democracies and Non-Democracies: The Use of International Law and Institutions","authors":"Jure Vidmar","doi":"10.1017/lsi.2023.51","DOIUrl":"https://doi.org/10.1017/lsi.2023.51","url":null,"abstract":"","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135981824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International law obliges governments to assure adequate and effective reparations for human rights violations. To date, most evaluations of such programs focus on outcomes while overlooking the process of how the state engaged victims, or not, in the determination of what they needed to feel repaired. A consensus now points toward the need to better involve beneficiaries in reparations programs in the process of determining these outcomes, yet there remains a need to better understand how to assure meaningful and effective participation. In response, the authors present an expansive view of the right to participation that would oblige governments to assure the quality of this participation in all stages of reparation programming, including design, implementation, and evaluation. They argue that reparative processes are, in themselves, forms of reparation, which go toward citizen restitution. They offer preliminary guidelines on how to assure reparative processes, as well as their evaluation, through a dialogical model that helps reorient the view of “victims” to being active agents in determining not only appropriate reparations but also larger transformations. Reparative processes shift the focus of evaluation to look beyond outcomes and toward the quality of the design and implementation processes, which, if flawed, may ultimately undermine the overall impact of any reparation program.
{"title":"Measuring Up: A Dialogical Model for Assuring a Reparative Process","authors":"Lisa J. Laplante, Ana María Reyes","doi":"10.1017/lsi.2022.86","DOIUrl":"https://doi.org/10.1017/lsi.2022.86","url":null,"abstract":"International law obliges governments to assure adequate and effective reparations for human rights violations. To date, most evaluations of such programs focus on outcomes while overlooking the process of how the state engaged victims, or not, in the determination of what they needed to feel repaired. A consensus now points toward the need to better involve beneficiaries in reparations programs in the process of determining these outcomes, yet there remains a need to better understand how to assure meaningful and effective participation. In response, the authors present an expansive view of the right to participation that would oblige governments to assure the quality of this participation in all stages of reparation programming, including design, implementation, and evaluation. They argue that reparative processes are, in themselves, forms of reparation, which go toward citizen restitution. They offer preliminary guidelines on how to assure reparative processes, as well as their evaluation, through a dialogical model that helps reorient the view of “victims” to being active agents in determining not only appropriate reparations but also larger transformations. Reparative processes shift the focus of evaluation to look beyond outcomes and toward the quality of the design and implementation processes, which, if flawed, may ultimately undermine the overall impact of any reparation program.","PeriodicalId":47418,"journal":{"name":"Law and Social Inquiry-Journal of the American Bar Foundation","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135716506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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