From the Field to the Courthouse: Should Social Science Research Be Privileged?

Social scientists need clarification about the extent to which the confidential aspects of their research are protected from compulsory disclosure in legal proceedings, and the extent to which they ought to be. Investigating the nature of social science research with an emphasis on researcher-participant relationships in ethnographic practice, I conclude that a qualified privilege would confer three major benefits on social science researchers: confidence that the government will not unnecessarily interfere with research, facilitation of improved researcher-participant relationships, and increased accuracy, thoroughness, and reliability of research data. I also discuss the development of privilege and confidentiality issues in practical research contexts through an examination of two criminal cases in which social science researchers refused to divulge the confidential information obtained in the course of research. Finally, I discuss the possible formulations of a scholarly research privilege. This is especially important because courts have cast social scientists as members of the larger community of academic or scholarly researchers with respect to these issues. Potential sources of protection include state journalist protection laws, federal common law, and federal statutory law. Evaluation of these sources and the case law to which they correspond suggests that developing common law privileges in state and federal jurisprudence is the most promising means of affording the confidential aspects of social science research legal protection. As researchers continue to press privilege     

The Forces of Conviction: The Power and Practice of Mandatory Prosecution upon Misdemeanor Domestic Battery Suspects

This article provides an ethnographic account of the power and practice of mandatory prosecution upon misdemeanor domestic battery suspects. Integrating law and society studies, domestic violence research, and poststructuralist theories of power, it finds that mandatory prosecution engages suspected batterers in multiple power operations that shape their agency in different ways. While many of these operations are familiar from past law and society research, mandatory prosecution alters their practice. In general, the different tactics that legal authorities deploy in their interactions with domestic battery suspects coalesce in an effort to have them plead guilty. The impact of these tactics on batterers, however, is far from clear. Mandatory prosecution increases the number of persons convicted of domestic violence. But abusers' violence is repeatedly redefined and displaced, as they are processed through the court setting, thus casting doubt on the criminal court's power to affect their accountability. By detailing the court's various points of encounter with domestic battery suspects, this study offers a much-needed empirical framework for future evaluations of court interventions against domestic batterers.     

Academic copyright in the publishing game: a contest perspective

As scientists are motivated by readership rather than by royalties, one might doubt that academic copyright is required for stimulating research. Consequently, establishing an open access regime is currently intensively being discussed. We contribute to the literature by using a contest-model in which differently talented researchers compete for limited journals space. The contest perspective adds a rent-seeking motive into the publishing game which questions that private incentives for research are always too low due to the positive externalities of scientific progress. In our model, open access always leads to higher social welfare when incentives are too high. When incentives are too low, then open access is only superior if the benefits from larger readership is sufficiently high.     

论民间法研究的犬儒主义色彩

改革开放之后,政治权力尽管对学术的控制全面放松了,但其仍然时刻保持着侵入学术的可能。法学学术面对这种政治情势形成了一种既试图回避政治禁忌又试图迎合学术体制的犬儒主义生存策略,而民间法研究正好满足了这样一种生存策略,民间法研究者无疑对当下中国的政治现实有着一种清醒的意识,但其仍然回避了关键的政治性法律实践问题,而在比较安全的去政治化的法律实践领域大力挖掘学术资源。民间法研究者还在既中立客观而又具有现实意义的绝佳外表下不恰当地将这种片面化的学术研究放大到法治建设的全局性地位,为其进行精致的正当化辩护。民间法研究者最终通过各种似是而非的理论策略能够达到一种犬儒主义效果:对学术无能的不自知、对逃避政治现实的自我说服、对学术繁荣的自我陶醉。     

The Needs of the Judiciary and Misapplications of Social Research The Case of Female Guards in Men's Prisons

Social scientists have a unique opportunity to generate empirical data to assist legal arguments in a court of law. Unfortunately, most researchers seldom take the initiative to research specific issues that may guide a legal question. Instead, they research issues that may interest them but have no real-world application. This study demonstrates this problem using the example of female guards in male prism. Several suggestions are made that can put the social sciences in a leadership role.     

What Happens to Law in a Refugee Camp?

How do people living in a refugee camp engage with legal practices, discourses, and institutions? Critics argue that refugee camps leave people in “legal limbo” depriving them of the “right to have rights” despite the presence of international humanitarian actors and the entitlements enshrined in international law. For that reason, refugee camps have become a highly visible symbol of failed human rights campaigns. In contrast, I found in an ethnography of the Buduburam Refugee Camp in Ghana, West Africa, that although people living as refugees faced chronic insecurity and injustice, they engaged extensively with several different facets of the law. I illuminate three interrelated dimensions of their experiences: (1) their development as international legal subjects; (2) their alienation from domestic legal institutions; and (3) their agency within the legal field. The article contributes to the research agenda on law in humanitarian settings an empirically grounded account of the subjective dimensions of legal alienation and mobilization in a refugee camp. More broadly, it contributes to international human rights debates by theorizing a mixed outcome of international human rights campaigns: the emergence of wards of international law, people deeply embedded in the international legal system, but alienated from local law.     

The Legally Disruptive Nature of Climate Change

Climate change gives rise to disputes and problems not easily addressed by existing legal doctrines and frameworks. This is because it is a polycentric problem; the assessment of future climate impacts must deal with uncertainty; climate change is socio‐politically controversial; and addressing climate change requires recognising a dynamic physical environment. As such, climate change can be thought of as legally disruptive in that it requires lawyers and legal scholars to reconcile the legal issues raised by climate change with existing legal orders. The legal disruption catalysed by climate change has not only led to the creation of new legal regimes but also given rise to a multitude of legal disputes that require adjudication. A study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.     

Legal Mobilization and the Politics of Reform: Lessons From School Finance Litigation in Kentucky, 1984-1995

This article is about legal mobilization by claimant groups seeking left-liberal reform in the United States. Drawing on a growing body of work in political science and legal studies, it takes an interpretive, legal-mobilization approach to one litigation-based reform effort: school finance litigation and education reform in Kentucky. In turn, this case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. The article argues that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers. Specifically, it highlights and explicates the meaning of two related themes: (1) legal translation, taken up here as legal framing and legal construction, and (2) the degree of coherence or fit between the legal and political components of reform projects that include both legal mobilization and extrajudicial strategies and tactics. This article suggests that the "degree of coherence" may have an important but underappreciated relationship to the overall success or failure of such reform projects.     

Climate change and national laws across Commonwealth countries

This paper furthers the Commonwealth agenda on climate action by exploring the kinds of ‘practical and swift action’ that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide ‘co-benefits’ in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.     

The Trouble with Boycotts: Can Fossil Fuel Divest Campaigns Be Prohibited?

Organizations like 350.org, Insure Our Future, and DivestInvest are leading campaigns to urge boycott and divestment from fossil fuels as a means to address climate change. Increasingly, they are finding success, from individual consumers to massive pension and sovereign wealth funds. However, as organized group boycotts, divest campaigns may be vulnerable to prosecution under antitrust law. This article explores the likelihood of success in such a case, considering the history of the legal treatment of organized boycotts, the scope and purpose of antitrust law, and the possible application of the First Amendment to the divestment context. The article finds that fossil fuel boycotts straddle a number of contradictory characteristics, making application of existing theories inadequate. In particular, existing precedent protects political boycotts, but not those with primarily economic objectives, and fails to definitively address whether a noncompetitive actor may undertake concerted action under antitrust law. In the context of climate change, where the political is economic, and political goals may seek significant economic changes (such as undermining an entire industry), existing theories may lead to a result that threatens both free expression and the health of the planet. The essential flexibility of the Sherman Act, however, provides room for protection of political activity, even where the ultimate objective is economic in nature.     

Fraud,Free Speech and Fossil Fuel: Lessons from Big Tobacco for Big Oil

Recent journalistic investigations revealed that ExxonMobil carried out research beginning in the 1970s indicating fossil fuel's dangerous role in global warming. Rather than heed the warnings of its research, for the next few decades, ExxonMobil instead chose to become a leader in climate change denial; stressing uncertainty, propagating misinformation, funding denial, and politicizing and undermining the expert scientific consensus. Exxon's behavior invoked the tactics used by the tobacco industry years earlier, tactics which wound up the subject of a successful federal government lawsuit under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The parallels with the tobacco industry prompted legislators and environmentalists to call on the Department of Justice to use RICO again to hold the fossil fuel industry to account. This article will consider the legal issues associated with bringing such an action, and whether useful lessons can be drawn from the tobacco litigation.     

Don't Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors

Access-to-information statutes are designed to empower the public and the media to scrutinize the government. In approximately three dozen cases decided since 1975, however, government entities used those statutes to sue citizens and media outlets that requested access to government information. The government lawsuits sought declaratory judgments as to the government's legal obligations under state open meetings and public records laws. This article analyzes the government lawsuits by exploring the social architecture they create. This social architecture is based on the idea that law not only settles individual disputes, but also defines power relationships among groups in society. The article suggests that government lawsuits against access requestors turn access law on its head and deprive citizens of the power over government granted to them by access statutes.     

Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self

While substantial sociolegal research has analyzed the deleterious effects of criminal records on life outcomes, little has examined the records themselves, or their relationship to the people they represent. In this article I take a novel tact, treating criminal records as the material, textual documentations of an individual's past. I then observe expungement seekers—people who encounter their own records—to understand their reactions. From this data, I use inductive theories of symbolic interactionism to theorize another collateral effect of the criminal record: it represents people in ways that depersonalize their social identities, and prevents them from communicating corrective self‐understandings to the governing bodies that author the records. I conclude with my main theoretical contribution: “having a criminal record,” literally, means having a textual proxy that the state has authored on its own terms, without input from the people whom it permanently represents, and while concealing from those people the apparatus behind authorship. As a consequence, the criminal records system serves as a barrier to reciprocal communication between ex‐arrestees and a legal system that represents them in ways that they may want to contest. This “wrongful representation” is a collateral effect of having a criminal record that impedes the ability of ex‐arrestees to manage or repair their relationship with the state that has punished them.     

Hate groups and hate crime

This paper is the first to investigate the relationship between hate groups and hate crime empirically. We do so using panel data for the U.S. states between 2002 and 2008. Contrary to conventional wisdom, we find little evidence that hate groups are associated with hate crime in the United States. We find somewhat stronger evidence that economic hardship may be related to hate crime. However, evidence for the potential importance of economic factors remains weak. Further, we find that demographic variables are not significantly related to hate crime in the United States. Our results leave the question of what factors may drive hate crime in America unresolved. But they cast doubt on the popular perception that hate groups are among them.     

Litigation in the Fossil Fuel Divestment Movement

The fossil fuel divestment movement has been described as the fastest‐growing disinvestment movement in history, and in recent years it has continued to expand. Despite its growth, however, the movement has made little use of legal action, instead utilizing tactics of public pressure and persuasion, and the future role of litigation in the movement is unclear. To consider litigation's potential role in the movement and the challenges it may face, I examine the first and only case of litigation in the fossil fuel divestment movement thus far: Harvard Climate Justice Coalition et al. v President and Fellows of Harvard College et al. (2015), in which seven Harvard students (including the author) filed suit to compel the university to divest its endowment from fossil fuel companies. I examine motivations for filing the suit in the context of the broader fossil fuel divestment movement, the case's history, and the challenges faced by the suit, including arguments surrounding causation, particularization, representation of future generations, limiting principles, and framing. I then discuss potential opportunities for fossil fuel divestment litigation in the future. As the field of climate change law develops further, litigation over fossil fuel investments could grow in frequency and importance.     

Eliciting cues to deception by tactical disclosure of evidence: The first test of the Evidence Framing Matrix

Purpose. Research on real‐life suspect interviews shows that disclosure of evidence is a very common tactic and that it occurs in all phases of the interview. It is therefore remarkable that there is hardly any research on the effectiveness of different disclosure tactics. The aim of this study was to examine the effects of three different disclosure tactics: presenting the evidence early and two versions of the Strategic Use of Evidence (SUE) technique. Methods. For the SUE‐Basic technique (SUE‐B), the evidence was disclosed late in the interview. For the SUE‐Incremental technique (SUE‐I), we used a stepwise disclosure tactic derived from the so‐called Evidence Framing Matrix. The tactic consists of revealing evidence of increasing strength and precision. A mock‐theft scenario was employed with 195 participants who were randomly allocated to one of six conditions: guilty or innocent suspects were interviewed with one of the three techniques. Two measures of inconsistency were used as dependent variables: statement‐evidence inconsistency and the newly developed within‐statement inconsistency. Results. By interviewing with SUE‐I, strong cues to deception were elicited, especially for the statement‐evidence inconsistency variable. For the SUE‐B, significant but smaller differences between guilty and innocent suspects were obtained. Conclusions. We found that both when and how the evidence was disclosed moderated the effectiveness of disclosure. With respect to when, it was more effective to disclose the evidence late (vs. early), and with respect to how, it was more effective to disclose the evidence in a stepwise (vs. direct) manner. The tactical aspects of evidence disclosure are discussed.     

论气候变化对人权国际保护的影响

气候变化与人权国际保护都是当代国际法的热点问题,全球性、长期性与政治性是二者的共同特征。气候变化对人类社会和自然界的影响是多层次的,而它对人权国际保护的影响涉及国家安全、人道主义问题、发展权、健康权以及国际关系的调整等各个方面。中国作为全球温室气体排放大国,应转变观念,从战略高度重视气候变化问题;同时,还要加强国际合作,重视应对气候变化中的发展权,并加强与气候变化有关的法制建设。     

Can twitter change the Iranian legal landscape for women?

ABSTRACT

This article explores the effectiveness of international social media (Twitter) campaigns, as a modern form of transnational advocacy networks, seeking domestic legal change in Iran for women’s rights. Using the spiral model of human rights change and second wave normative theories, the article critiques current thought on social media as an advocacy tool using evidence from two Iranian campaigns. Gathering empirical data from the #stopstoning and #letwomengotostadium campaigns, the research finds that Twitter campaigns may be linked to regression in some areas of women’s rights. Early evidence indicates that social media may lead to amplified government backlash, lack of campaign persistence and foreign overshadowing of domestic voices, which all contribute to the ongoing problematisation of the role of transnational advocacy networks in domestic human rights change.