Establishing Identity: Documents,Performance, and Biometric Information in Immigration Proceedings

This article explores the politics of identification in immigration proceedings by examining the struggles over family‐based immigration in South Korea in the context of ethnic Korean “return” migration from China. It focuses on micropolitical struggles in bureaucratic settings, analyzing how migrants and immigration bureaucrats struggle to establish kinship and marital status in order to secure or limit migrants' access to the labor market and citizenship. Drawing on fieldwork in both the sending and receiving communities, it shows how migrants and bureaucrats use various types of “identity tags” (official documents, performance, and biometric information) to establish the authenticity of family relations and to accept or reject particular understandings of personhood, belonging, and entitlement. It also highlights the multiple normative orderings that inform migrants' strategies (including their use of “fraudulent” identity) and their implicit or explicit challenge to the criminalizing and stigmatizing view of the immigration state.     

人工智能时代生物识别信息刑法保护的国际视野与中国立场——从“人脸识别技术”应用下滥用信息问题切入

人脸识别技术作为人工智能学科中发展最为迅捷的一个分支,被广泛地被运用于社会生活的各个领域,生物识别信息因其所具备的专属性和唯一性的特征在大量身份核验的场景被采集,在审慎借鉴欧美先进立法经验和对我国实践困境的反思基础上,我国应当构建完善生物识别信息刑法保护制度,优化生物识别技术的刑事规制界限,完善生物识别信息层次特殊保护体系,将滥用生物识别信息行为入罪,实现生物识别信息合理开发利用与公民个人有序生活不受侵扰的基本价值诉求之平衡。     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Reclaiming freedom of the press: A Hutchins Commission dream or nightmare?

This article explores how and why the Hutchins Commission's vision of a responsible press and an informed citizenry did not, and does not, realistically meet either the needs of the media industries or the public. Although it was the commission's goal to create a healthier society, the new technologies of communication present old and new problems—problems that cannot be negotiated by the commission's well‐meaning but idealistic notions of press responsibility. The Internet demonstrates the old dilemma of elite access and concentrated ownership and a new dilemma of utility characterized by isolated users whose communication can be argued only superficially as socially healthy. Perhaps a more innovative and structurally significant approach, beyond the rhetoric of “press‐responsibility,” is needed to create physical access to media that can achieve the kind of “publicness” the Hutchins Commission envisioned.     

Examining the “virtual”; publication as a “newspaper of record”;

Newspapers as a record of the day's events and chronicle for public business have been part of the United States' unofficial governing system for several hundred years. The expression “newspaper of record”; has specific meaning and import for librarians, historians and lawyers. This article compares the statutory characteristics of “newspapers of record”; with the qualities of modern electronic newspapers delivered by on‐line delivery services. The article concludes that the definitions of “newspapers of record”; used by librarians, historians and statutes may not be met yet by electronic editions of newspapers. Thus, on‐line newspapers may not be able to carry legal notices.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

个人生物识别信息民事权利诉讼救济问题研究

我国《民法典(草案)》将"生物识别信息"列入"隐私权和个人信息保护"的范围。目前,在外国以保护隐私权思路保护个人生物识别信息的民事诉讼实践中所遇到的困难主要包括:"类主体"与"类事由"化问题;侵权行为的"程序性违法"问题;传统"案件—诉讼—损害"的民事法理逻辑对损害赔偿的限定等问题。充分完善"类诉讼"制度;解决新兴权利的法律赋权问题;确定"程序性违法"的"损害"认定标准以及完善举证责任制度,是保证个人生物识别信息民事权利诉讼救济充分实现的制度优化措施。     

Why the “Haves” Do Not Necessarily Come Out Ahead in Informal Dispute Resolution

This article explores the implications of Galanter's distinction between repeat and one‐off players to informal dispute resolution settings. Relying on quantitative and qualitative data regarding one British “private‐Ombudsman” scheme, the article analyzes the extent to which complaint handlers' decision making advantaged more experienced and better resourced firms and/or high‐status and more assertive complainants. The article's tentative theoretical proposition is that the typically indeterminate nature of informal dispute resolution settings renders them less susceptible to large organizations' and other repeat players' capacity to “play for rules.” Yet, this indeterminacy makes such processes more vulnerable to decision makers' reliance on heuristics.     

大数据背景下个人生物识别信息安全的法律规制

个人生物识别信息具有个人数据的唯一性、程序识别性、可复制性、损害的不可逆性及信息的关联性等特征。在大数据背景下,个人生物识别信息的广泛应用会带来严重的生物信息安全风险,其滥用可造成隐私权、平等权和财产权等权益受到侵犯,需要立法进行全方位规制。我国目前个人生物信息的相关立法存在总体位阶较低且内容分散、保护范围狭窄、权利义务边界不清、法律责任不明晰等缺陷,应当采取渐进式专门立法的思路,完善现有相关部门法关于个人生物信息的规制内容,构建层次分明、内外协调的个人生物识别信息安全保护的法律体系。     

Fatal Wounds by “Manja” to a Motorbike Rider in Motion

“Kite fights” are quite popular throughout Asia. Most kite variations, including the fighter kites of India, Pakistan, and Japan, are small, flat, roughly diamond‐shaped kites composed of paper, with a tapered bamboo spine and a balanced bow. They are flown with the help of a “Manja,” which is a thread made of cotton or nylon, and coated with fine glass powder using glue and other chemical adhesives to cut down opponent's kite string. The nylon “Manja” is particularly more dangerous, as it not only cuts down opponent's kite string but also causes bodily injuries to humans, which may be at times fatal. The pattern of injuries by Manja is underreported in literature. In the present case, the deceased had encountered fatal injuries by “Manja” while riding on his motorbike. This case discusses the pattern of injuries caused by Manja when the victims are in motion on their two‐wheelers.     

What Is the Will Theory of Rights?

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

Recovery of Missing Persons in Cyprus: Heavy Equipment Methods and Techniques for Complex Well Excavations

This technical note presents the methods and techniques developed by the Bi-communal Forensic Team (BCFT) of the Committee on Missing Persons in Cyprus (CMP) used to excavate and exhume the remains of missing persons, many of whom were buried in deep wells at sites across the island of Cyprus during the conflict period of the 1960s and 1970s. A total of 493 Turkish Cypriots and 1508 Greek Cypriots were officially reported missing by the two communities as a result of the conflict. Since the team's formation, in 2005, the BCFT has excavated 114 wells, resulting in the recovery of 195 missing individuals from 35 of these well excavations. The standard excavation approach used by the BCFT, especially for deep well recovery, consists of “ramp,” “pocket,” and “pool” components. These excavation features enable CMP archaeologists to excavate deep wells safely and efficiently while simultaneously permitting time for thorough documentation and unimpeded recovery of human remains. The team uses three variants of this approach to cope with the variety of geological, physical, and hydrological contexts faced in Cyprus’ wells, including hard and soft landforms, the presence or absence of water, and limitations imposed by surrounding infrastructure. The “terracing”, “double-ramp”, and “single-ramp” variations are detailed with respect to the environmental contexts which prescribe their use. The BCFT's general procedures for human remains recovery and standard well safety protocols conclude the article.     

PROTECTING CHILDREN'S RIGHTS IN CONTACT DISPUTES: THE ROLE OF CHILDREN'S CONTACT SERVICES IN AUSTRALIA*

This article explores the role of Children's Contact Services (CCSs) in protecting children's right to express, and have heard, their wishes in contact disputes. The findings presented are drawn from the Australian Children's Contact Services Project and were based on 142 interviews with representatives from the government, the courts and legal profession who refer families to CCSs, service staff, as well as the parents and children who use the services. An analysis of client data from 396 families who had used one of six contact services in Victoria and Queensland during the month of August 2003 was also conducted. The findings suggested that CCSs successfully engaged children in a “dynamic self‐deterministic” process where children were able to explore their own wishes in relation to contact visits over time as their relationship goals changed. John Eekelaar described this process as being central to making decisions that are in children's best interests.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

Legal Aid,Social Workers,and the Redefinition of the Legal Profession in Chile, 1925–1960

This article examines the history of the Chilean Legal Aid Service (Servicio de Asistencia Judicial) from the 1920s until the 1960s. It argues that with the emergence of the “social question”—the concern for improving the lower classes' working and living conditions to promote the nation's modernization and prevent political radicalization—the Chilean legal profession committed to legal aid reform to escape a professional identity crisis. Legal aid allowed lawyers to claim they had a new “social function” advocating on behalf of the poor. However, within legal aid offices, lawyers interacted with female social workers who acted as gatekeepers, mediators, and translators between the lawyers and the poor. This gendered professional complementarity in legal aid offices helped lawyers to put limits on their new “social function”: it allowed them to maintain legal aid as a part‐time activity that did not challenge the structure of the legal system as a whole.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

In the eye of the beholder: Meaning and structure of informal status in women's and men's prisons*

Applying an abductive mixed‐methods approach, we investigate the informal status systems in three women's prison units (across two prisons) and one men's prison unit. Qualitative analyses suggest “old head” narratives—where age, time in prison, sociability, and prison wisdom confer unit status—are prevalent across all four contexts. Perceptions of maternal “caregivers” and manipulative “bullies,” however, are found only in the three women's units. The qualitative findings inform formal network analyses by differentiating “positive,” “neutral,” and “negative” status nominations, with “negative” ties primarily absent from the men's unit. Within the women's units, network analyses find that high‐status women are likely to receive both positive and negative peer nominations, such that evaluations depend on who is doing the evaluating. Comparing the women's and men's networks, the correlates of positive and neutral ties are generally the same and center on covariates of age, getting along with others, race, and religion. Overall, the study points to important similarities and differences in status across the gendered prison contexts, while demonstrating how a sequential mixed‐methods design can illuminate both the meaning and the structure of prison informal organization.     

Response to “Ideology and Rhetoric Replace Science and Reason in Some Parental Alienation Literature and Advocacy: A Critique,” by Milchman,Geffner, and Meier

The author wrote an article, “Parental Alienation and Misinformation Proliferation,” for this Special Issue of Family Court Review, which is devoted to various aspects of parental alienation (PA). This short article is a response to the article by Milchman, Geffner, and Meier, which discussed my article and other contributions to the Special Issue. All of these articles represent an attempt by the Editors of the Special Issue to promote “dialogue” among writers who have different perspectives regarding parental alienation. In my view, this is a misguided endeavor, since the publication of cascading criminations, recriminations, and re‐recriminations simply creates confusion and consternation for the readers of Family Court Review. This new article offers an alternative approach for creating constructive dialogue among PA‐promoters and PA‐detractors, that is, convene a face‐to‐face discussion of these individuals and encourage them to write an article together in which they jointly explain their various perspectives regarding PA.