“Legality with a Vengeance”: Reclaiming Distribution for Sociolegal Studies

The law and society community has argued for decades for an expansive understanding of what counts as “law.” But a content analysis of articles published in the Law & Society Review from its 1966 founding to the present finds that since the 1970s, the law and society community has focused its attention on laws in which the state regulates behavior, and largely ignored laws in which the state distributes resources, goods, and services. Why did socio‐legal scholars avoid studying how laws determine access to such things as health, wealth, housing, education, and food? We find that socio‐legal scholarship has always used “law on the books” as a starting point for analyses (often to identify departures in “law in action”) without ever offering a programmatic vision for how law might ameliorate economic inequality. As a result, when social welfare laws on the books began disappearing, socio‐legal scholarship drifted away from studying law's role in creating, sustaining, and reinforcing economic inequality. We argue that socio‐legal scholarship offers a wide range of analytical tools that could make important contributions to our understanding of social welfare provision.     

MOVING BEYOND GENERALIZATIONS AND STEREOTYPES TO DEVELOP INDIVIDUALIZED APPROACHES FOR WORKING WITH FAMILIES AFFECTED BY PARENTAL INCARCERATION

Competing narratives about incarcerated parents and their children are provided by the Adoption and Safe Families Act (“ASFA”) and the Children of Incarcerated Parents Bill of Rights (“Bill of Rights”). Both the “child‐at‐risk” narrative of ASFA and the “good mother” narrative of the Bill of Rights are stereotyped and oversimplified and contribute, in opposite ways, to misperceptions about incarcerated parents and their children by suggesting a uniformity of situations and appropriate responses that does not actually exist. The time‐driven approach of ASFA—and many state termination of parental rights statutes—is overly rigid, while the Bill of Rights overlooks important differences among families, as well as tensions and trade‐offs among policy choices. In actuality, the situations of the parents and children involved vary widely and defy easy analysis and solutions. We should therefore be taking an individualized, qualitative approach that is nuanced and based on actual information about incarcerated parents and their children, rather than a quantitative, categorical approach based on generalized and simplistic assumptions. Only if we recognize and grapple with the complexities of parental incarceration can we develop sound legal and social policy to meet the needs of these families.     

Race and Determinations of Discrimination: Vigilance,Cynicism, Skepticism,and Attitudes about Legal Mobilization in Employment Civil Rights

What factors affect whether ordinary citizens believe that workplace decisions involving African‐American employees rise to the level of discrimination? When do observers believe targets of possible race discrimination should consider mobilizing the law? We use a factorial design vignette study administered to a nationally representative sample of 2,087 ordinary people to address these questions. The “vigilance hypothesis” predicts that minorities will be more likely to perceive discrimination than whites. Our analysis partially confirms this: African Americans perceive anti‐Black discrimination at higher rates than do whites and Latinos, while Latinos do not show a significant difference from whites. Where respondents believe discrimination occurred, we analyze what influences whether respondents might recommend legal mobilization. The “cynicism hypothesis” suggests that people of color may be less likely to favor using law. We find, however, that African‐American and Latino respondents express more confidence in civil litigation, compared to whites. Further, African Americans express the strongest support for legal mobilization (recommending that a “friend” contact an attorney), while whites and Latinos do not differ in mobilization recommendations.     

Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York's “Certificates of Relief”

Despite burgeoning interest in prisoner re‐entry and the “collateral consequences” of criminal convictions, we know little about the practical operation of policies governing the rights and privileges of people with criminal convictions. This study examines New York's Certificates of Relief from Civil Disabilities to explore the workings of the US carceral state at the intersection of criminal and civil law. These certificates remove some legal restrictions accompanying convictions, particularly licensure barriers, and are easier to achieve than pardons; other states have used New York's policy as a model. Interviews with judges and probation officers reveal deep variations in how they understand and award certificates. In some cases, differences stem from informal local agreements, particularly concerning firearms in rural communities; in others, from discretionary judgments in a context of legal ambiguity. These practices demonstrate how specific legal, organizational, and cultural factors contribute to complexity and variation in the US carceral state.     

Parenting without Protection: How Legal Status Ambiguity Affects Lesbian and Gay Parenthood

Through the lens of lesbian and gay parenthood we ask how individuals who experience “legal status ambiguity”—that which emerges when legal fluctuations combine with divided attitudes, ignorance of the law, and autonomous institutional gatekeepers—exercise their legal rights and responsibilities. The results from thirty‐one interviews with lesbian and gay parents in Oregon and their six adult children suggest that the state's fluctuating legal and social climates for lesbian and gay parenting between 1985 and 2013 presented significant challenges for two generations of same‐sex parents. Although both cohorts created and utilized a range of legal and social mechanisms to assert their legal rights, they found these rights to be controlled as much by gatekeeper perspectives as by legal force. After the 2015 Obergefell ruling on marriage equality, lesbian and gay parenting status remains a site of ongoing legal and social contestation, providing insight into the risks and challenges of legal status ambiguity.     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.     

PARENT EDUCATION PROGRAMS IN FAMILY COURTS: BALANCING AUTONOMY AND STATE INTERVENTION

This work considers how court‐connected parent education programs can assist parents to access dispute resolution processes that best suit their families’ needs, in a manner involving appropriately curtailed levels of state interference with parental autonomy. After reviewing traditionally accepted limits on state interference with family functioning, the increased concern for children's emotional well‐being, and data relating to one parent education program, the author concludes that providing mandatory “basic level” informational programs to all separating parents seeking access to the family law regime is a warranted level of state intervention. “Skills‐building” programs aimed at achieving demonstrably changed parental practices should be available on a voluntary attendance basis.     

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top‐rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.     

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.     

Can There Be an Artifact Theory of Law?

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.     

Rules as Icons: Wittgenstein's Paradox and the Law

In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3 ). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4 ) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice.     

Exploring the Sources of Authority Over the Word Meaning in Transgender Jurisprudence

This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category. When it comes to the legal question of who may marry whom, and what the terms “man” and “woman” actually refer to, there is no statutory definition of the terms “man”, “woman”, “male” and “female”. This has put the onus on judges, especially those who needed to decide whether a transgender person can marry in his/her affirmed sex, to interpret these terms. Two lines of cases in transgender jurisprudence are examined so as to have a close study of how the courts construed these terms and classified transgender people into a category. The first concerns United Kingdom cases, namely Corbett v Corbett (1971), Bellinger v Bellinger (2003) and the Hong Kong case W v Registrar of Marriages (2010), (2011) & (2013). The second consists of Australian cases such as Secretary, Department of Social Security v State Rail Authority (1993) and Re Kevin (2002). This paper discusses these issues by analyzing and comparing different cases in transgender jurisprudence as well as examining how these issues play out in contemporary Hong Kong.     

Above the Roof,Beneath the Law: Perceived Justice behind Disruptive Tactics of Migrant Wage Claimants in China

The way in which citizens in developing countries conceptualize legality is a critical but understudied question for legal consciousness and legal mobilization studies. Drawing on participatory observations and extensive interviews from western China, this article explores the subjective interpretations of migrant wage claimants on law and justice behind their disruptive actions. Their perception of justice differs starkly from what the law stipulates as target, evidence and proper procedures. Who shall be held responsible? What constitutes evidence? When shall they be paid? How much? Their perceptions also differ from the attitude “against the law” found among members from disadvantaged social groups in the United States. The Chinese case of legal perception is shaped by the moral precepts ingrained in the culture, and more importantly, by the lopsided relationship between migrant workers and the political and business elite. It thus points to the daunting barriers in channeling the ever‐growing number of social conflicts into court.     

Infusing Public Law into Privatized Welfare: Lawyers,Economists, and the Competing Logics of Administrative Reform

Along with the trend toward “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization,” the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare‐to‐work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post‐bureaucratic setting. The study demonstrates how eventually public law norms were re‐infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.     

Epistemological Perspectives in Legal Theory

Abstract The authors deal with several important epistemological problems in legal theory. The Nineteenth century background is analyzed from the emergence of legal science freed from the constraints of natural law and built on the model of the empirical sciences. The authors show how this science of law has been influenced by the social sciences and trends in ideological criticism throughout the Twentieth century. The epistemological question central to legal science is tackled, i.e., what kind of “epistemological break” should there be with regard to the object studied? To answer this question, the authors plead for the adoption of a “moderate external point of view” which bears in mind lawyers' “internal point of view.”     

法律与逻辑——对法律与逻辑关系的一种全面解读

本文主要对法律与逻辑关系进行了全面的探讨。对逻辑学和法学之间交叉性的一些问题进行了回顾和总结。首先,探讨了什么是“法律逻辑”,并重点介绍了我国学者较陌生的“规范逻辑”,将两者进行了比较;其次,对法理学和逻辑学都关心的“法律推理”问题进行了探讨,比较了“法律推理”和“司法推理”两者的异同,以及两大法系“法律推理”的特点和差异;最后,对饱受批判的“法律形式主义”进行了研究,指出应当辩证地看待“法律形式主义”的功与过。最后,作者结合我国的实际,认为:我们不能借口反对“法律形式主义”而忽视和否定逻辑在法律领域中的作用。     

Coerced work during parole: Prevalence,mechanisms, and characteristics

Coerced work on parole occurs when people are required to work under the threat of criminal legal repercussions. In the face of barriers to “good” work for people after prison, coercion helps to funnel parolees into positions at the bottom of the labor market. Parolee workers in these positions experience issues common to precarious, low-wage work (low pay, hazardous working conditions, and labor law violations), as well as heightened vulnerability to predatory employers and exposure to parole-prohibited activities. Because of the threat-backed requirements to work, however, parolees must choose to either accept this “bad” work or face potential sanctions. Using mixed-methods, including a novel form of respondent-driven sampling I call “Hybrid-RDS,” this article documents the prevalence of coerced work for people on parole in Los Angeles County, identifies the mechanisms through which coercive work operates, and illustrates the problematic employment conditions of coerced work after prison.     

Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight

Past legal consciousness research has revealed a great deal about what individuals think and do with regard to law, but less attention has been paid to the social processes that underpin these attitudes, beliefs, and actions. This article focuses particularly on a “second‐order” layer of legal consciousness: people's perceptions about how others understand the law. Ethnographic observations and in‐depth interviews with cockfighters in rural Hawaii reveal how law enforcement practices not only affect cockfighting rituals, but are embedded within them. Police practices and informal rules work in concert to shape fighters' second‐order beliefs. These beliefs have implications for participants' understanding of central concepts, including order, disorder, and illegality. Examining legal consciousness from a second‐order perspective also underscores that notions of legitimacy are constantly created and recreated. Recognizing legitimacy's inherently relational nature helps us understand how experiences of law are synthesized into beliefs—for example, when an unusual police action directed toward a subgroup of fighters compromised the law's legitimacy for them. Foregrounding the relational nature of legal consciousness offers scholars a means to better understand and operationalize the dynamic nature of human relationships to law.