Hollow law and utilitarian law: The devaluing of deportation hearings in New York City and Paris

How is law made worthless to the marginalized? Drawing on ethnographic observations in Paris and New York City, I establish a typology of devaluation practices in deportation hearings. I analyze how informal court practices devalue court actors, the hearing, and the law itself. Despite different levels of formal protections for migrants, deportation adjudication is pared down and devalued in both cities. This devaluation, however, followed distinct logics. New York hearings were characterized by a utilitarian law logic, where process and ritualistic elements deemed inessential were shed, leaving a stripped-down core focused on case processing. The minimal protections available to migrants were weakened further. By contrast, hollow law emerged in Parisian hearings, where everyday court practices eroded the more generous protections granted to migrants through formal law. While analyses of immigration adjudication have focused on decision-making, determinants of legal outcomes, and the interpretation of formal criteria, I instead conceptualize the courtroom as a space where value is actively unmade through informal practices, drawing on insights from the sociology of valuation and evaluation.     

Crime,deportation and the regulation of immigrants in Canada

Criminality is now one of the most frequently used provisions for deporting non-citizens from Canada. Individuals who are convicted of crimes outlined in current immigration policies can find themselves subject to deportation proceedings after they have served their sentences unless they are eligible to make an appeal and can do so successfully. This paper examines 177 reported immigration appeal hearings in Canada involving non-citizens who are ordered deported on the basis of criminality. Using documentary analysis along with basic statistics to analyze the appeal hearing decisions, I demonstrate how gender and racial ideologies shape the outcome of these decisions. Theories of moral regulation, social control and governmentality are employed to develop an understanding of the state's treatment of immigrants. That a significant number of immigrants in this study were not deported, but were granted stays with strict conditions highlights how deportation hearings are one mechanism for differentiating between ‘deserving’ and ‘undeserving’ immigrants. This study illustrates how, through the use of racial and gender ideologies, deportation practices are as much about differential exclusion as they are about enforced assimilation. Concerns around criminality rationalizes the ongoing regulation and surveillance of immigrants and the threat of deportation ensures their compliance.This research was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC Grant No. 31-632203). An earlier version of this paper was presented at the British Society of Criminology Annual Meetings in Bangor, Wales, July 2003 and at the Canadian Law and Society Association Annual Meetings in Halifax, Canada, June 2003.     

Making peace in seas of crime: crimilegal order and armed conflict termination in Colombia

The relationship between organized crime and political order in the contemporary developing world and in transition countries is still little understood. Building on the seminal accounts of political order by Weber, Fukuyama and North, Wallis and Weingast, this article introduces the concept of crimilegality. Crimilegal orders are neither ‘modern’ nor ‘non-modern’ but combine and integrate elements of both types of order. They are characterized by the blurring of the social boundaries between legality and illegality and/or criminality. What is formally illegal and/or criminal may be deemed legitimate, while what is formally legal may be considered to be illegitimate. The resulting crimilegal governance arrangements, which involve coordination between a range of state and non-state actors, serve (illicit) economic interests but are also reflective of broader particularistic concerns about guaranteeing political stability and the de facto exercise of political authority, as well as the physical security of those in power and, somewhat paradoxically, their judicial impunity. In such orders the state’s monopoly on the use of force tends to be replaced by oligopolies of coercion and high levels of violence are not uncommon, though they are also not standard. Using the current Colombian peace process as an example, this article argues that due to eminently political reasons violently contending state and non-state actors, both with notorious criminal pedigrees, can reach agreement on ending armed conflict and decide to cooperate to recover the primacy of legality. However, whether this type of bargaining game can ultimately lead to the positive ‘legalization’ of a crimilegal order, such as the one in Colombia, remains an open question.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Incomplete Inclusion: Legal Violence and Immigrants in Liminal Legal Statuses

Although US political discourse suggests otherwise, no simple dichotomy separates “documented” from “undocumented” immigrants. By examining the integration prospects of immigrants in “liminal” legal standings beyond undocumented status but short of permanent residency, we demonstrate that even when they are legally present, the implementation practices of a multilayered immigration policy regime may cause them harm. Our analyses draw on 108 qualitative interviews with immigrants who have been granted humanitarian relief, including U Visa holders, beneficiaries of the Violence against Women Act provisions, political asylees, and Temporary Protected Status recipients. As a result of “legal violence,” these legally present immigrants remain vulnerable to blocked mobility, persistent fear of deportation, and instability, confusion, and self‐blame.     

Legitimate rackets: Tax evasion,tax avoidance,and the boundaries of legality

Corporate crime is not the only means by which business can escape legal control. Law and legal definitions can also be used and manipulated to legally avoid both control and penalties or stigma associated with outright crime. This articl analyses such ‘legitimate rackets’ via a study of tax avoidance practices among business and ‘high net worth’ individuals. It describes some of the techniques employed, analyses the difference between tax evasion (an offence) and tax avoidance, explores the ‘grey area’ at the boundaries, and draws out the implications for theory and policy.     

‘On the Perimeter of the Lawful’: Enduring Illegality in the Irish Family Planning Movement, 1972–1985

Between 1935 and 1985, Irish law criminalized the sale and importation of condoms. Activists established illegal markets to challenge the law and alleviate its social consequences. They distributed condoms through postal services, shops, stalls, clinics, and machines. Though they largely operated in the open, their activities attracted little direct punishment from the state, and they were able to build a stable network of medical and commercial family planning services. We use 30 interviews conducted with former activists to explore this history. In doing so, we also examine the limits of ‘illegality’ in describing acts of everyday resistance to law, arguing that the boundaries between legal and illegal, in the discourses and practices of those who sought to challenge the state, were shifting and uncertain. In turn, we revisit ‘illegality’, characterizing it as an assemblage of varying selectively‐performed political practices, shaped by complex choreographies of negotiation between state and non‐state actors.     

Narrating Domestic Violence: Producing the "Truth' of Violence in 19th' and 20th-century Hawaiian Courts

Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.     

Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims‐Making for First‐ and 1.5‐Generation Immigrants

This article examines the legal consciousness and incorporation experiences of undocumented immigrants in the United States. Although this population may be disaggregated along several axes, one central distinction among them is their age at migration. Those who migrated as adults live out their daily lives in different social contexts than those who migrated as children. Therefore, although all undocumented immigrants are legally banned, their identities, sense of belonging, and interpretation of their status vary. Based on ethnographic observations and in‐depth interviews of Latino undocumented immigrants from 2001 to 2010, I examine how illegality is experienced differently by social position. The findings suggest that the role of life‐stage at migration and work‐versus‐school contexts importantly inform immigrants' legal consciousness. Fear predominates in the legal consciousness of first‐generation undocumented immigrants, while the legal consciousness of the 1.5 generation is more heavily infused with stigma. Fear and stigma are both barriers to claims‐making, but they may affect undocumented immigrants' potential for collective mobilization in different ways.     

Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as "sexual outlaws" to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's ca-pacity to invoke fundamental legal rights, the law effectively sanctions "private" or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.     

Social control theory and the connection with ideological offenders among Israeli youth during the Gaza disengagement period

The present study examined whether social control theory is capable of explaining youth's law violations in instances of conflict between the ideological religious worldview and the laws of the country in which they reside. Differences in the control factors (commitment, belief, attachment, and involvement) were examined among Israeli adolescents who took part in legal activity (n=163) and illegal activity (n=99) during the resistance to the Gaza evacuation. The findings indicate that the model provides a partial explanation for ideological delinquency. It was found that involvement with friends and the absence of belief in the formal legal system were associated with illegal ideology activity. Attachment to friends and parents and involvement with parents had no effect on youth's participation in illegal ideological activities.     

UPHOLDING STUDENTS’ DUE PROCESS RIGHTS: WHY STUDENTS ARE IN NEED OF BETTER REPRESENTATION AT,AND ALTERNATIVES TO,SCHOOL SUSPENSION HEARINGS

Suspension is the most common form of discipline in our schools. In some cases students facing suspension are removed from school for an extended period of time or referred for expulsion based on the findings made at the student's suspension hearing. Nevertheless, students have no legal right to have counsel participate in, or advocate at, suspension hearings. Additionally, schools for the most part do not offer students alternatives to suspension, such as mediation sessions or other programs designed to allow students to complete school or community work while on suspension. This Note discusses the problems associated with school suspension and suspension hearings. It also explains why providing students with legal advocates at suspension hearings will help promote due process and facilitate better decision making on the part of the student. Finally, it advocates for mediation as an alternative to suspension and suspension hearings, as research suggests that mediation would reduce suspension rates and the costs associated therewith.     

Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making

Drawing on forty-one interviews with both documented and undocumented Latino restaurant workers in San Jose, California, and Houston, Texas, this article examines how documentation status shapes the legal consciousness of immigrant workers. I identify three common narratives that undocumented workers provide to justify not making claims on workplace protection. First, I highlight that an ever-present fear of deportation inhibits any formal confrontation. Second, I demonstrate how undocumented status leaves undocumented immigrants with a particularly pragmatic and short-term understanding of their working life in the United States, rendering their working conditions temporary and endurable to them. Third, I expand Gordon and Lenhardt's (2008 ) discussion of the centrality of work to the American conception of citizenship. I reiterate that this particular sense of belonging is situated vis-à-vis other low-wage workers. These findings provide sociolegal scholars important theoretical contributions for crafting a research agenda on the role of undocumented status and legal mobilization.     

In the Mirror: The Legitimation Work of Globalization

This essay examines the legitimation work of globalization by bringing into dialogue the authors' research on immigration, finance, and intercountryadoption. It is concerned with the practices that produce, define, and preclude both movement and connection, such as "naturalizing" some border crossings while criminalizing others; denying the histories and policies that allow some parents to "choose" babies while others must abandon them; and challenging the practices through which small states tweak transnational financial systems while allowing multinational corporations privileges denied small states. Legitimation work (re)configures jurisdictionality, transparency, and sovereignty–the constructs on which debates over globalization's consequences hinge. Examining how these constructs order, include, and exclude persons, goods, and practices sheds light on the boundaries, slippages, and connections between the legitimate and the illegitimate within global processes.     

Relational Legal Consciousness of U.S. Citizenship: Privilege,Responsibility, Guilt,and Love in Latino Mixed‐Status Families

Based on interviews with 100 members of mixed‐status families in Los Angeles, California, this article analyzes how U.S. citizen children practice and understand citizenship in the context of punitive laws targeting their loved ones. Participants' narratives of citizenship as privilege, responsibility, and guilt reveal that despite normative conceptions of citizenship as a universally equal status, citizenship intersects with key social markers to determine the contours and inequalities of substantive citizenship. Specifically, U.S. citizens in mixed‐status families make sense of their juridical category when they navigate unrealistic aspirations from relatives, maintain silence about undocumented family members' legal status, manage their fear of family separation through deportation, and take on financial and logistical responsibilities prematurely to help relatives. In each of these ways, family proves to be a key site for the social and relational production of citizenship.     

The post-September spiral in Baja

As a result of the securityprecautions taken by the US after September11, Baja has experienced enormous economicdislocation, affecting both legitimate andunderworld businesses. Increased vigilancealong the border has complicated efforts totraffic undocumented immigrants and drugs.One of the consequences has been anincrease in other illegal operations on theMexican side of the border such askidnapping, robbery, and local distributionof drugs.     

无效婚姻制度探析

无效婚姻制度是2001年《中华人民共和国婚姻法》新增设的一项制度,填补了立法空白,是婚姻立法上的重大进步.无效婚姻是指违反婚姻成立要件的违法婚姻,本文对无效婚姻的法定事由、宣告机关及法律后果等方面的缺陷进行了分析,提出了完善的立法建议:1、建立结婚登记公示制度;2、应缩小自始无效婚的范围,扩大可撤销婚的范围;3、确认和宣告婚姻无效的机关应仅限于人民法院;4、自始无效婚有溯及力,可撤销婚无溯及力;5、当事人所生子女视同婚生子女;6、增设无效婚姻的侵权制度.     

General Strain Theory and Racial Insurgency: Assessing the Role of Legitimate Coping

While General Strain Theory (GST) recognizes the broad range of legitimate and illegitimate coping behaviors people adopt in reaction to strain, tests of the theory focus almost exclusively on criminal coping. We advance the theory by articulating the role of legitimate coping in the GST process. We test the theory’s assumptions that strain increases both legitimate and illegitimate coping and that negative emotions more strongly increase illegitimate coping. We also draw on recent work by Agnew and expect that these coping strategies co-occur rather than being mutually exclusive. We investigate these hypotheses in relation to black insurgency, specifically nonviolent civil-rights protest (legitimate coping) and rioting (illegitimate coping). Using data from a large 1968 survey of blacks, multivariate findings are consistent with the theory’s expectations regarding the role of legitimate coping. More broadly, our results echo calls to extend the boundaries of the discipline beyond traditional conceptualizations of “crime.”     

A-Legality: Postnationalism and the Question of Legal Boundaries

This paper critically examines the prevailing assumption that legal boundaries are becoming irrelevant in postnationalism. While the boundaries of the nation-state are forfeiting some of their hold on human behaviour, postnational legal orders are simply not legal orders unless they can in some way draw the spatial, temporal, material and subjective boundaries that make it possible to qualify human behaviour as legal or illegal. This implies that reflexively constituted legal orders – whether national or postnational – must be presented as legal unities. To the extent that boundaries are the necessary condition of national and postnational legal orders, and therewith of legal unity, they also spawn the possibility of political plurality, manifested in behaviour that resists the very distinction between legality and illegality, as drawn by an order of positive law: a-legality. Rather than signalling the demise of legal boundaries, postnationalism ushers in a novel way of dealing therewith – and with a-legality.     

违法诱惑侦查所获证据之证据能力研究

对于诱惑侦查而言，“机会引诱”因本为合法之侦查取证行为，故其所获证据当为合法，可作为法庭审判定案之根据；但“犯意引诱”作为一种违法侦查行为，一旦成立，则应当排除其所获之全案证据。违法诱惑侦查，系国家制造犯罪，已经逾越侦查犯罪之必要程度、违反宪法对于基本人权之保障、对于公共利益之维护并无意义，因其在性质上已经属于极端严重的违法侦查行为，因此，对于违法诱惑侦查所获之证据，无论言词证据，还是实物证据，均应一律排除。如果被告在审判中提出其遭受侦查机关违法诱惑侦查的抗辩时，类似于被告提出其遭受警方刑讯逼供的抗辩，应由检察官承担证明该阻却犯罪成立事由不存在的举证责任，且由于该事实为直接影响被告罪责之实体事实，因此，举证时应当适用严格证明法则，并应证明至排除合理怀疑（高度盖然性）的程度。