Law & Social Enquiry

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Table of Contents for Law & Social Inquiry. List of articles from both the latest and EarlyView issues.
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Acknowledgments to Reviewers

Wed, 2020-03-18 06:59
Law & Social Inquiry, Volume 43, Issue 4, Page 1146-1148, Fall 2018.
Categories: Journals

Visual Data and the Law

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

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

Wed, 2020-03-18 06:59

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.

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Constitutional Innovation and Animal Protection in Egypt

Wed, 2020-03-18 06:59

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.

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

Wed, 2020-03-18 06:59

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.

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Judicial Diversity in France: The Unspoken and the Unspeakable

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

Policing Social Marginality: Contrasting Approaches

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

Body Cameras, Big Data, and Police Accountability

Wed, 2020-03-18 06:59

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.

Categories: Journals

Authoritarianism and the Internet

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

Categories: Journals

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

Wed, 2020-03-18 06:59

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.

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Book Notes

Wed, 2020-03-18 06:59
Law & Social Inquiry, Volume 43, Issue 4, Page 1729-1741, Fall 2018.
Categories: Journals

Issue Information

Wed, 2020-03-18 06:59
Law & Social Inquiry, Volume 43, Issue 4, Page 1141-1144, Fall 2018.
Categories: Journals

Pages