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Journal of Law and Society

Impact factor: 1.22 5-Year impact factor: 1.143 Print ISSN: 0263-323X Publisher: Wiley Blackwell (Blackwell Publishing)

Subjects: Sociology, Law

Most recent papers:

  • Communities of scholars and communities of practice.
    Lynn Mather.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 25-39, March 2021. ", "\nAbstract\nThis article is a contribution to the occasional series dealing with a major book that has influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, Nicola Lacey, Carol J. Greenhouse, David Garland, Peter Fitzpatrick, and David Nelken.\n"]
    March 01, 2021   doi: 10.1111/jols.12276   open full text
  • Unsecured lending and the indigenous economy in Australia and South Africa.
    Andrew Hutchison, Dominique Allen.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 84-105, March 2021. ", "\nAbstract\nConsumer credit is closely regulated in both Australia and South Africa. Nevertheless, unsecured lending often results in financial hardship in low‐income communities. One aspect of this picture is the impact of the consumer debt burden on the Indigenous economy, which is disproportionately affected by poverty in both countries. Here we juxtapose the comparative regulatory regimes and then contextualize the law using an inter‐disciplinary account of each Indigenous economy. We find through this law‐in‐context comparison that neither Australia nor South Africa has fully resolved the problem of Indigenous financial hardship. This mutual failure is confirmed by the recent Kobelt decision of the High Court of Australia and the drastic measures enacted in the South African National Credit Amendment Act 2019. One positive lesson that South Africa provides is that accommodating the Indigenous economy in financial regulation can promote and empower that sector.\n"]
    March 01, 2021   doi: 10.1111/jols.12280   open full text
  • Mavericks or misconstruction? A reply to Campbell and Allan.
    Stephanie Palmer, Stevie Martin.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 106-119, March 2021. ", "\nAbstract\nIn a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.\n"]
    March 01, 2021   doi: 10.1111/jols.12279   open full text
  • Capabilities, capacity, and consent: sexual intimacy in the Court of Protection.
    Jaime Lindsey, Rosie Harding.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 60-83, March 2021. ", "\nAbstract\nThis article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.\n"]
    March 01, 2021   doi: 10.1111/jols.12278   open full text
  • Supremacy and hegemony: a reply to Palmer and Martin.
    James Allan, David Campbell.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 120-124, March 2021. ", "\nAbstract\nIn a 2019 article in this journal, which drew on previous work, we argued by examination of a number of extremely important cases that the senior judiciary is in the process of attempting to create judicial supremacy in the UK. It is doing so, not by democratic debate, but by legal procedural innovation incomprehensible to the electorate. Invited by the journal to reply to a criticism of our argument by Dr Stephanie Palmer and Dr Stevie Martin, we have sought to defend our account of the undemocratic procedural novelty of those cases.\n"]
    March 01, 2021   doi: 10.1111/jols.12281   open full text
  • A reflection on 30 years of complementary collaboration.
    Yves Dezalay, Bryant Garth.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 3-24, March 2021. ", "\nAbstract\nThis article, invited by the editors, provides us with an opportunity to reflect on a scholarly collaboration of more than 30 years. Looking backwards, we believe our success has come in part from the different backgrounds that we bring to our collaboration. It also comes from the fact that neither of us at the time we met was comfortable with the scholarly models that we were intellectually programmed to pursue in our individual careers. We discuss not only what our collaboration has produced, but also the pragmatic and serendipitous elements that have gone into working out and defining our research approach, and how that approach has changed in relation to the shifting scholarly context and related changes in the global political economy, our own ambitions, and opportunities and obstacles that have at times shifted our focus. Our individual and collective career trajectories also say something about the scholarly fields in which we have operated.\n"]
    March 01, 2021   doi: 10.1111/jols.12283   open full text
  • Governing canal life.
    Dave Cowan, Barbara Hardy.
    Journal of Law and Society. 5 days ago
    ["Journal of Law and Society, Volume 48, Issue 1, Page 40-59, March 2021. ", "\nAbstract\nThis article focuses on the governance of canals in England and Wales. The Canal & River Trust (CRT), the owner and manager of the waterways, has a statutory responsibility to grant ‘certificates’ or licences. The licence constructs a category called ‘continuous cruisers’ who live aboard their boat. Drawing on a sample of interviews with ‘continuous cruiser liveaboards’ (CCLs), we discuss how their governance by the CRT has gradually encroached on their everyday lives, leading them to reconsider their lives on the canal. We illustrate this through exploring how the CRT translated obscure legislation to make it legible through techniques of simplification, but did so in a way that had problematic effects on CCLs; and how apparently enabling and constraining regulation operates, paradoxically, in contradictory ways, both significantly affecting CCLs’ everyday lives. At heart, there is a simple story here of a nomadic way of life that is of relatively recent vintage but that is being (or perceived as being) sedentarized.\n"]
    March 01, 2021   doi: 10.1111/jols.12277   open full text
  • Beyond Social Constructionism? Cicourel and the Search for Ecological Validity.
    David Nelken.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 535-557, November 2020. ", "\nAbstract\nThis article is a contribution to the occasional series dealing with a major book that has influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, Nicola Lacey, Carol J. Greenhouse, David Garland, and Peter Fitzpatrick.\n"]
    December 03, 2020   doi: 10.1111/jols.12255   open full text
  • Gendering the Legal Complex: Women in Sri Lanka's Legal Profession.
    Dinesha Samararatne.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 666-693, November 2020. ", "\nAbstract\nDrawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender‐based dynamics within the legal complex, such as gender‐stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.\n"]
    December 03, 2020   doi: 10.1111/jols.12259   open full text
  • Reinterpreting Law's Silence: Examining the Interconnections between Legal Doctrine and the Rise of Immaterial Labour.
    Emily Rose.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 588-611, November 2020. ", "\nAbstract\nRecent years have seen a rise in immaterial labour in the United Kingdom and other developed economies. Sociological explanatory accounts of these developments focus primarily on economic drivers. Little, if any, inquiry has been made into the potential role of law. This article seeks to identify the aspects of law that may be constitutive of employer and worker perceptions of the acceptability (or otherwise) of employer demands for immaterial labour. Two key contributions are made. The first is a setting‐out of a methodological approach to exploring the constitutive effect of law that emphasizes the internal operation of legal doctrine as critical to understanding its sociological implications. The second is the development of substantive knowledge on the potential role of law vis‐à‐vis the rise of immaterial labour.\n"]
    December 03, 2020   doi: 10.1111/jols.12260   open full text
  • Transnational Law and Development as a Means to Reshape States and Rights.
    Johanna Del Pilar Cortés‐Nieto.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 694-701, November 2020. ", nil]
    December 03, 2020   doi: 10.1111/jols.12264   open full text
  • Disability Law as an Academic Discipline: Towards Cohesion and Mainstreaming?
    Anna Lawson.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 558-587, November 2020. ", "\nAbstract\nThis article calls for a strengthening of Disability Law as an academic discipline and offers orientation for its future development. It argues that there is a need for enhanced cohesion among those already applying a critical disability perspective within disciplines such as Equality Law, Mental Health and Capacity Law, and Social Care and Protection Law and also for greater mainstreaming of this approach across the full breadth of sociolegal scholarship. The article is divided into three main sections. The first contextualizes Disability Law by reflecting on its relationship with other legal disciplines and broader pools of scholarship. The second focuses on issues of scope and structure. The third offers orientation for future Disability Law work by outlining four key cross‐cutting challenges with the potential to bring together scholars with expertise in different areas of substantive law.\n"]
    December 03, 2020   doi: 10.1111/jols.12258   open full text
  • Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work.
    Ruth Dukes, Wolfgang Streeck.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 612-638, November 2020. ", "\nAbstract\nThis paper considers the interaction of legal norms and social norms in the regulation of work and working relations, observing that, with the contraction of collective bargaining, this is a matter that no longer attracts the attention that it deserves. Drawing upon two concepts from sociology – Max Weber's ‘labour constitution’ and Seymour Martin Lipset's ‘occupational community’ – it focuses on possibilities for the emergence, within groups of workers, of shared normative beliefs concerning ‘industrial justice’ (Selznick); for collective solidarity and agency; for the transformation of shared beliefs into legally binding norms; and for the enforcement of those norms. If labour law is currently in ‘crisis’, then a promising route out of the crisis, we argue, is for the law to recover its procedural focus, facilitating and encouraging these processes.\n"]
    December 03, 2020   doi: 10.1111/jols.12254   open full text
  • Reviewing Directors’ Business Judgements: Views from the Field.
    Journal of Law and Society. December 03, 2020
    ["Journal of Law and Society, Volume 47, Issue 4, Page 639-665, November 2020. ", "\nAbstract\nDirectors take decisions that can have significant impacts on others, as illustrated by the global financial crisis and the collapse of Thomas Cook Group plc. Yet many academics argue that courts should not review or impose liability on directors for poor business judgements. These arguments often rely on untested empirical assumptions about directors’ behaviour and attitudes. Through semi‐structured interviews and focus groups, we explored the responses of directors, legal practitioners, company secretaries, and board headhunters to the prospect of judicial review of directors’ business judgements. Our findings challenge orthodox thinking: many directors supported some form of review and the impact of review may not be as great as the literature predicts, nor necessarily detrimental. The debate about whether courts should review directors’ business judgements should therefore move away from reliance on negative empirical assumptions about the impact of review, to clearly articulating, and engaging with, normative positions that underpin opposition to, and support for, review.\n"]
    December 03, 2020   doi: 10.1111/jols.12257   open full text
  • Of Mines, Mining, and Imagining: Rights without Society?
    Lydia Morgan.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S282-S301, November 2020. ", "\nAbstract\nAs a polyvocal discipline that integrates studies of law in society, socio‐legal studies should have no problem accommodating civil liberties and human rights. Numerous methodologies and frameworks present themselves as illuminating, troubling, and critiquing conceptions and experiences of rights. Legal analysis of human rights is nevertheless often abstract and highly technical. But what if socio‐legal analyses of rights were not available? What would be lacking? Using a personal situated methodological approach, I explore the Journal of Law and Society's back catalogue to reflect on what civil liberties and human rights might be without socio‐legal studies.\n"]
    November 23, 2020   doi: 10.1111/jols.12269   open full text
  • ‘Left Pessimists’ in ‘Rose Coloured Glasses’? Reflections on the Political Economy of Socio‐Legal Studies and (Legal) Academic Well‐Being.
    Richard Collier.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S244-S261, November 2020. ", "\nAbstract\nThis article reflects on the significance of the Journal of Law and Society and critical socio‐legal work in the context of changes in the political economy of universities and socio‐legal studies. It interweaves an analysis of this shifting political economy with consideration of another topic, namely, academic well‐being and mental health, especially in this moment, to demonstrate the continuing pertinence and importance of the left critique of universities. Well‐being has become part of a far broader set of counter‐narratives to neoliberalism evident in attempts to reposition it as a ‘force of change’, to develop new ways of working that might challenge traditional work cultures and organizational structures, and to resist the marketized neoliberal university and re‐envision what a ‘good university’ might be. Rejecting the criticism of ‘left pessimists’ in ‘rose coloured glasses’, I make the case for the continuing significance of engaging in public education and research as a public good.\n"]
    November 23, 2020   doi: 10.1111/jols.12268   open full text
  • Socio‐Legal Studies in 2020.
    Sally Wheeler.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S209-S226, November 2020. ", "\nAbstract\nThis article looks back to a paper written by the author and Phil Thomas in 2000 on socio‐legal studies and reflects on what has changed in the world of socio‐legal studies since then. It then turns to the continued modesty of the claims that socio‐legal studies researchers make for their work. The suggestion made is that socio‐legal studies forms a social ecology in what is termed the ‘hyphen‐space’ and that through this space social ecology theory allows much larger claims to be made about how actors and issues at different levels and scales relate to each other. To this end, the article takes an issue, an artefact, and a broad classification of ‘people’ within the sphere of international commercial law to illustrate how social ecology can be used to broaden the claims that research makes.\n"]
    November 23, 2020   doi: 10.1111/jols.12267   open full text
  • The Many Beginnings of Philip Aneurin Thomas.
    Linda Mulcahy.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S191-S208, November 2020. ", "\nAbstract\nThis volume pays tribute to the many achievements of Philip Aneurin Thomas. When asked to write a biographical account of his life, I was struck by how many beginnings Phil had been involved in. Early experiences in the United States and East Africa made him part of an important group of scholars who brought new ways of thinking about law and the law school to the United Kingdom in the 1970s. He was there at the beginning of the socio‐legal movement, making a major contribution to the multi‐disciplinary research environment that socio‐legal scholars now take for granted, and instrumental in establishing a number of institutions, including this journal. Finally, his personal and academic trajectory cannot be fully understood without an understanding of the importance of his being Welsh and a committed socialist.\n"]
    November 23, 2020   doi: 10.1111/jols.12266   open full text
  • The Changing Position of Legal Academics in the United Kingdom: Professionalization or Proletarianization?
    Anthony Bradney, Fiona Cownie.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S227-S243, November 2020. ", "\nAbstract\nThis article analyses changes to United Kingdom (UK) university law schools during the period coinciding with Phil Thomas’ career as a law teacher – the latter part of the twentieth century and the first two decades of the twenty‐first – in part illustrating the analysis with other examples from Thomas’ career. We will focus specifically on the way in which what it means to be a legal academic has altered, with UK legal academics having been professionalized as a community during this era. Yet, seemingly paradoxically, it is also an era during which, many have suggested, academics in UK universities have become a proletariat.\n"]
    November 23, 2020   doi: 10.1111/jols.12265   open full text
  • Administrative Justice in Wales.
    Sarah Nason, Huw Pritchard.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S262-S281, November 2020. ", "\nAbstract\nThis article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights‐based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well‐being goals contained in the Well‐being of Future Generations (Wales) Act 2015.\n"]
    November 23, 2020   doi: 10.1111/jols.12273   open full text
  • Legislating for a Pandemic: Exposing the Stateless State.
    Edward Kirton‐Darling, Helen Carr, Tracey Varnava.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S302-S320, November 2020. ", "\nAbstract\nInitially the subject of widespread consensus, legislative and policy responses to COVID‐19 are increasingly provoking predictable reactions. Right and left are united by concern that essential freedoms are being eroded by a state utilizing the opportunity of the pandemic to make a power grab. Focused on the Coronavirus Act 2020, this article takes a more cautious approach, suggesting that the law should be understood not as the product of a hierarchical state but as a demonstration of the ‘statelessness’ of the contemporary state. It examines the Act with particular focus on open justice, adult social care, and Business Improvement Districts. Reading this unique piece of legislation through the lens of the stateless state reveals the complexities, ambiguities, and contestations within contemporary policy making. Dismissing the Act as unnecessarily authoritarian is an insufficiently nuanced response; furthermore, this exploration of the law allows us to develop and complicate scholarship on the stateless state.\n"]
    November 23, 2020   doi: 10.1111/jols.12271   open full text
  • Home: A Vehicle for Resistance? Exploring Emancipatory Entanglements of ‘Vehicle Dwelling’ in a Changing Policy Context.
    Rhiannon Craft.
    Journal of Law and Society. November 23, 2020
    ["Journal of Law and Society, Volume 47, Issue S2, Page S321-S338, November 2020. ", "\nAbstract\nThis article begins with a reflection on Phil Thomas’ work, as well as on the way in which the Journal of Law and Society has pioneered scholarship in this field. Drawing on my own experiences as a researcher and campaigner, and my ‘insider’ status as a van dweller, I articulate why many have sought alternative modes of living, reflecting on ideas about freedom and anarchism, the importance of ‘home’, cultural preference, and escaping the housing crisis. I note that Wales and other European states, such as Portugal, provide a much warmer welcome and space for diverse Travellers; some are already planning their escape routes before the consequences of Brexit and new trespass legislation unfold. In an already hostile and rapidly changing context, it appears that the ontological security of vehicle dwellers is increasingly under threat. As well as giving a voice to these communities, the article also represents a much‐needed call to action.\n"]
    November 23, 2020   doi: 10.1111/jols.12270   open full text
  • Law's Wars, Law's Trials.
    Richard L. Abel.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nThe rule of law is a foundation of the liberal state. The US ‘War on Terror’ under Presidents Bush and Obama threatened and violated the rule of law in multiple ways. This article surveys those challenges and analyses how US institutions responded in order to assess the capacity of the legal system to resist political pressure in moments of crisis.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S14-S29, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12244   open full text
  • Partition by Degrees: Routine Exceptions in Border and Immigration Practice between the UK and Ireland, 1921–1972.
    C. R. G. Murray, Daniel Wincott.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nUsing archival materials, we reflect on the legal process of creating (and mitigating) a border in Ireland after partition in 1922 and interactions between those laws and the people whom they affected. After 1922, superficially durable exceptions developed to the territorial state's distinctions between citizens and foreign nationals under the aegis of the Common Travel Area. They survived the 1930s UK–Ireland ‘Economic War’, were sustained (if in a restricted form) during the Second World War and were rebuilt in its aftermath. These arrangements proved beneficial for both countries, providing an outlet for surplus labour for Ireland and a resource for the UK economy. We nonetheless explore how far practice reflected this overarching cooperative framework, particularly given the complications introduced by the policies of Northern Ireland's institutions.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S145-S163, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12246   open full text
  • Caught in an Authoritarian Trap of Its Own Making? Brazil's ‘Lava Jato’ Anti‐Corruption Investigation and the Politics of Prosecutorial Overreach.
    George Mészáros.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nThe negative and corrosive impacts of corruption in the fields of economics, politics, and law are widely discussed. Less understood are the potentially negative impacts of anti‐corruption struggles and strategies themselves. This article presents a case study of Brazil's ‘Car Wash’ (‘Lava Jato’) scandal from a legal and political perspective. Although the subsequent Operation Car Wash investigation was widely regarded as remarkably successful, supposedly buttressing the rule of law through high‐profile prosecutions of leading politicians and businesspersons, the article argues that legal due process, wider constitutional law, and the political process were undermined. While the use of media leaks to strengthen the investigation proved tactically successful, when coupled with new legal instruments it undermined the presumption of innocence and contributed to a climate in which political and legal debates themselves became increasingly subordinated to simplistic polarizing anti‐corruption discourses, thereby undermining an already fragile political and institutional environment.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S54-S73, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12245   open full text
  • The ‘Fight against Corruption’ in Brazil from the 2000s: A Political Crusade through Judicial Activism.
    Fabiano Engelmann.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nThe anti‐corruption struggle has become an international political doctrine since the 1990s. On the one hand, it has been anchored in organizations that promote ideas and models of ‘good governance’: non‐governmental organizations (NGOs), think tanks, the World Bank, and so on. On the other hand, it has acquired normative force in conventions of the United Nations (UN), the Organisation for Economic Co‐operation and Development (OECD), and other institutions that induce changes in national laws. The mobilization of this doctrine in the Brazilian national space is simultaneously related to the effects of political conjuncture and to broader structural factors. Since the re‐democratization of the country, legal elites have made increasing corporate and political gains. At the same time, the anti‐corruption prescriptions have reinforced political and economic groups’ discourse seeking to re‐establish the neoliberal agenda of the 1990s. In Brazil, this agenda's central axis focuses on the (de)legitimation of the social rights enshrined in the 1988 Constitution, and of the social policies implemented in recent decades. Among these structural factors, we can highlight the corporate stature and political credit acquired by judicial agents since the re‐democratization of the country. Looking at international variables as a starting point, this article aims to shed light on the links between Brazilian institutions and international anti‐corruption initiatives. The results are based on a comparison of the trajectories of core actors in this process and the main anti‐corruption initiatives of the 2000s in Brazil. These initiatives, paradoxically, have contributed to positioning judicial agents as central protagonists of a new version of the Brazilian authoritarian political tradition.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S74-S89, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12249   open full text
  • Law against the Rule of Law: Assaulting Democracy.
    Ivan Ermakoff.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nThis article examines how authoritarian contenders use law to advance an agenda geared to exclusive state power in light of a paradigmatic case: the National Socialists’ takeover of the German state apparatus in spring 1933. This case highlights two ways in which an office holder is able to expand his power in an authoritarian fashion through legal dispositions. A conjunctural use of law for authoritarian purposes draws on legal statutes to undercut the political capacity of opponents and competitors, hollow out institutional checks, and crucially hamper civil freedoms. Taking advantage of constitutional provisions that make institutional subversion from within possible (‘constitutional Trojan horses’), a structural use of legal statutes reorders the power structure by reallocating decisional rights. In both cases, law serves as a weapon against the rule of law. These considerations raise the question of the standards by which we are to judge the legality of such acts. Contemporary instances of democratic backsliding are cases in point.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S164-S186, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12253   open full text
  • The Rule of Law in Fragile States: Dictatorship, Collapse, and the Politics of Religion in Post‐Colonial Somalia.
    Mark Fathi Massoud.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nThe fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S111-S125, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12251   open full text
  • From Car Wash to Bolsonaro: Law and Lawyers in Brazil's Illiberal Turn (2014–2018).
    Fabio De Sa E Silva.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nLaw and lawyers tend to be seen as either preferential victims of or key counterforces to rising illiberalism. Brazil offers a good testbed for these claims. Brazilian democracy has deteriorated considerably, as epitomized by the election of Jair Bolsonaro in 2018. Yet, since 2014, law and lawyers have become ever more central to Brazil's field of state power. As the anti‐corruption initiative Car Wash (Lava Jato) gained momentum, Brazilian judges and prosecutors were celebrated, locally and globally, as champions of transparency, accountability, and ‘the rule of law’. Following a closer look at Car Wash, this article questions such idealization of law and lawyers. Drawing on research on press interviews and statements by Car Wash legal officers, I find that, throughout the case, they produced a ‘political grammar’ that is closer to illiberalism than many would predict. Based on recent developments in the sociology of fields, I argue that the production of these grammars yields societal effects that deserve scholarly and civic attention.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S90-S110, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12250   open full text
  • Politics by Other Means in South Africa Today.
    Peter Brett.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nRick Abel's classic Politics by Other Means (1995) used South Africa to argue for law's ‘potential nobility’, but it did so avoiding a heroic mode characteristic of much anti‐apartheid writing. Abel showed how law could, with strenuous exertion, be turned into a defensive shield for the oppressed. As a sword, however, it was ‘two‐edged’. It allowed the powerful to frustrate or overturn hard‐won symbolic victories. Recently, the heroic mode has returned to South Africa. The Constitutional Court, in particular, is lauded for having combated ‘state capture’ under deposed President Jacob Zuma. A closer examination of this period, however, does much to vindicate Abel's earlier scepticism about law's offensive value. The spectacular deployment of law to fight politicians’ crimes has exposed the judiciary to unexpected political threats. Meanwhile, civil society's efforts to entrust judges with administrative duties shirked by the government has inevitably entailed the sacrifice of some rule of law values.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S126-S144, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12248   open full text
  • Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts.
    Sharon Weill.
    Journal of Law and Society. October 30, 2020
    ["\nAbstract\nLower national courts are increasingly asked to perform a transnational role, being directly involved in major geopolitical issues such as conflicts, migration, and transnational terrorism. Based on an ethnography of French criminal courts, this article aims to examine this emerging role of national lower courts as transnationalized players. Through an examination of terrorism prosecutions in France and the positions of the different judicial actors, it is argued that lower criminal courts, acting within a transnational context, can offer more robust resistance to states’ policies than supreme courts. This is because of the routine and the banality of their function and the direct interaction with the accused persons coupled with the judges’ own professional ethos and notion of judicial independence. Unlike supreme courts, whose role is more visible, and thus under the constant scrutiny of the political branches of the state, lower courts can operate in a more distant, independent space.\n", "Journal of Law and Society, Volume 47, Issue S1, Page S30-S53, October 2020. "]
    October 30, 2020   doi: 10.1111/jols.12247   open full text
  • ‘Paedophile Hunters’, Criminal Procedure, and Fundamental Human Rights.
    Joe Purshouse.
    Journal of Law and Society. August 18, 2020
    ["\nAbstract\n‘Paedophile hunters’ have attracted global media attention. The limited literature on paedophile hunters, which documents their emergence in contemporary liberal democracies, pays scant attention to how their use of intrusive investigative methods may threaten the procedural rights of suspects and undermine the integrity of the criminal justice system. This article fills this normative ‘gap’ in the literature. It draws upon media coverage, criminal procedure jurisprudence, and criminological scholarship to analyse the regulation of paedophile hunting in English and Welsh law. The article suggests that domestic law does not afford adequate protection to due process and the fundamental human rights of those falling under the paedophile hunter's purview. Unless paedophile hunting is constrained by a narrower and more robustly enforced regulatory regime, it should not be permitted, let alone encouraged, in contemporary liberal democracies.\n", "Journal of Law and Society, Volume 47, Issue 3, Page 384-411, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12235   open full text
  • Judicial Procedural Involvement (JPI): A Metric for Judges’ Role in Civil Litigation, Settlement, and Access to Justice.
    Ayelet Sela, Limor Gabay‐Egozi.
    Journal of Law and Society. August 18, 2020
    ["\nAbstract\nWe examine judges’ role in civil litigation by studying empirically the relationship between judicial procedural involvement (JPI) and lawsuits’ mode of disposition (MoD). Furthermore, we propose JPI as a metric for the allocation of judicial attention to litigants. Applying the framework to Israeli trial court data, we find that 60 per cent of cases included JPI (through hearings and rulings on motions) whereas 40 per cent involved only the court's institutional function. By juxtaposing JPI and MoD data, we shed light on the scope of judicial involvement in settlements, the ratio between judges’ normative public‐life function and their problem‐solving function, and other pertinent questions. Since nowadays lawsuits are rarely adjudicated, trial rates are low, and litigants in person (pro se litigants) are common, we argue that access to justice should also be construed in terms of access to judicial attention throughout the proceeding, which is readily measurable through JPI.\n", "Journal of Law and Society, Volume 47, Issue 3, Page 468-498, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12243   open full text
  • Ultimate Legality: Reading the Community of Law.
    Peter Fitzpatrick, Tara Mulqueen, Abdul Paliwala, Anastasia Tataryn.
    Journal of Law and Society. August 18, 2020
    ["\nAbstract\nThis article is a contribution to the occasional series dealing with a major book that has influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, Nicola Lacey, Carol J. Greenhouse, and David Garland.\nAn initial twist: several acute observers would consider the way I read to be the most influential effect of reading on me – a way of reading that extends beyond the specificity of the text yet, in so doing, connects integrally with it. Salvation of specificity is at hand, however. That way of reading is intimately reflective of Derridean deconstruction and a hugely influential reading becomes his ‘Force of Law’. A problem ensues. Other influential reading came before my love of Derrida – influential reading to do with law and society (of course), with decolonization and imperialism, with engaged anthropology, and with critical legal studies. A retrospective revelation then follows. Derridean deconstruction is found to haunt and inform these other readings. They can be read in a way that inherently anticipates deconstruction. Some culminating coherence is offered by the inescapable insistence of community and the mutually intrinsic fusion of community and law.\n", "Journal of Law and Society, Volume 47, Issue 3, Page 363-383, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12242   open full text
  • Gendered ‘Objective’ Patent Law: Of Binaries and a Singularity.
    Jessica C. Lai.
    Journal of Law and Society. August 18, 2020
    ["\nAbstract\nPatent law protects the technical. It is seemingly objective in terminology and application. Yet studies show that males are significantly more likely than females to be the inventors of patented inventions. Patenting is not objective, it is gendered. The reasons for this are multiple and include the fact that patent law itself, including its presumptions and interpretation, is gendered. This article examines how patent law reflects multiple gendered binaries, despite being drafted in ostensibly neutral terms. These serve to favour masculine modes and fields of creation, while ignoring and devaluing feminine knowledge and ways of knowing. We should be concerned that patent law is gendered because patents affect wealth distribution, what is invented and commercialized, and what information and knowledge is disseminated, built upon, and viewed as valuable. Thus, instead of embodying gendered binaries, the law should reflect a singularity – a unique point, where the system degenerates or diverges to recognize and encourage the multiplicity of ways in which invention and innovation can and do occur, beyond socially constructed binaries.\n", "Journal of Law and Society, Volume 47, Issue 3, Page 441-467, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12241   open full text
  • The Limits and Promise of Instrumental Legal Analysis.
    Jacob Eisler.
    Journal of Law and Society. August 18, 2020
    [nil, "Journal of Law and Society, Volume 47, Issue 3, Page 499-512, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12238   open full text
  • Competing Narratives in a Case Biography: A Tale of Two Citadels.
    Caroline Jones, Jonathan Montgomery.
    Journal of Law and Society. August 18, 2020
    ["\nAbstract\nThis article is the fourth in a series introducing the reader to methods and theories relevant to advancing socio‐legal research. They are written for the curious rather than the expert reader and provide illustrations of how the theories, methods, and frameworks have been employed and might be used in your work.\nThis article explores the use of case biography methods for socio‐legal studies. Drawing on ‘paths to justice’ studies, network analysis, and legal archaeology, we develop a case study of AC v.Berkshire West Primary Care Trust. We show how the judicial determination of the case suppressed a transgender rights narrative construction of the dispute in favour of one about health care law. Our case biography analysis explores how competing narratives can be traced not only through legal argument and literature, but also through the personnel involved, in ways that are obscured by formal records. Paying attention to biographical features leads to a richer understanding of cases, including the importance of pre‐ and post‐judicial decision‐making aspects.\n", "Journal of Law and Society, Volume 47, Issue 3, Page 412-440, September 2020. "]
    August 18, 2020   doi: 10.1111/jols.12237   open full text
  • The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study.
    James Thornton.
    Journal of Law and Society. September 05, 2019
    --- - |2 This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work. - 'Journal of Law and Society, EarlyView. '
    September 05, 2019   doi: 10.1111/jols.12179   open full text
  • Socio‐legal Studies in Poland: Great Heritage, Empirical Accomplishments, Contemporary Challenges.
    Grażyna Skąpska.
    Journal of Law and Society. August 18, 2019
    --- - |2 This article is the fifth in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows articles by Kim Economides (Aotearoa/New Zealand), Harry Arthurs and Annie Bunting (Canada), Renaud Colson and Stewart Field (France), and Alfons Bora (Germany). - 'Journal of Law and Society, Volume 46, Issue 3, Page 476-496, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12171   open full text
  • On Being Able to Walk Twenty Metres: The Introduction of Personal Independence Payments.
    Peter Alldridge.
    Journal of Law and Society. August 18, 2019
    --- - |2- The Welfare Reform Act 2012 introduced Personal Independence Payments (PIPs), and in particular the enhanced‐rate mobility component (ERMC), with its twenty‐metre test to replace the more flexible fifty‐metre test for the higher‐rate mobility component of Disability Living Allowance (DLA). The government objective was to reduce the number of recipients of the benefits, which carry eligibility to the Motability scheme. Rather than modify DLA so as to cure its perceived faults, the government decided to ignore the past and start afresh. The article examines the implementation of PIP, including the treatment of the application of the author, and shows that the norms according to which DWP operates the benefit, are radically at variance with those in the Social Security (Personal Independence Payment) Regulations 2013. These developments have been central to the creation of a ‘hostile environment’ for people with disabilities. - 'Journal of Law and Society, Volume 46, Issue 3, Page 448-475, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12170   open full text
  • Tacticians, Stewards, and Professionals: The Politics of Publishing Select Committee Legal Advice.
    Ben Yong, Greg Davies, Cristina Leston‐Bandeira.
    Journal of Law and Society. August 18, 2019
    --- - |2 At Westminster, there are increasing pressures on select committees to publish in‐house legal advice. We suggest that examining the process of deciding to publish provides useful insights into the provision, reception, and use of legal advice, and the dynamics of select committees generally. We argue that the autonomy of select committees to decide what use they make of evidence and advice they receive is, in practice, constrained by the intra‐institutional dynamics and practices of select committees. Committee actors – parliamentarians, clerks, and parliamentary lawyers – each have overlapping, sometimes competing, roles. Most of the time, these roles and the responsibilities they encompass coincide, but the prospect of publication reveals clear tensions between the different actors. This is the politics of publication: the tactical approach of politicians is in tension with the stewardship of clerks and the professional norms of parliamentary lawyers. We suggest this tension will only increase in the near future. - 'Journal of Law and Society, Volume 46, Issue 3, Page 367-395, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12153   open full text
  • Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial.
    Rebecca K. Helm.
    Journal of Law and Society. August 18, 2019
    --- - |2- This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants. - 'Journal of Law and Society, Volume 46, Issue 3, Page 423-447, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12169   open full text
  • The Economic Sociology of Labour Law.
    Ruth Dukes.
    Journal of Law and Society. August 18, 2019
    --- - |2 Drawing on the work of Max Weber, this article considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterizing the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio‐legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work. - 'Journal of Law and Society, Volume 46, Issue 3, Page 396-422, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12168   open full text
  • Procedural Innovation and the Surreptitious Creation of Judicial Supremacy in the United Kingdom.
    David Campbell, James Allan.
    Journal of Law and Society. August 18, 2019
    --- - |2 In Re an Application by the Northern Ireland Human Rights Commission for Judicial Review, the Supreme Court made unfavourable comments about Northern Irish abortion legislation in a way which showed complete disregard for elements of civil procedure which are a foundation of proper adjudication within the context of respect for democracy. This was but the latest of a number of cases in which the senior judiciary has made unaccountable procedural innovations furthering judicial supremacy in defiance of the sovereignty of Parliament. In addition to Re Northern Ireland Human Rights Commission, two other of these cases, Simmons v. Castle and R (Miller and another) v. The Secretary of State for Exiting the European Union, will be discussed. These cases reveal an effort to create judicial supremacy by means which we are obliged to call surreptitious. - 'Journal of Law and Society, Volume 46, Issue 3, Page 347-366, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12167   open full text
  • Justice Without Measure?
    David Nelken.
    Journal of Law and Society. August 18, 2019
    --- - - 'Journal of Law and Society, Volume 46, Issue 3, Page 497-504, September 2019. '
    August 18, 2019   doi: 10.1111/jols.12172   open full text
  • Reading Durkheim in Darkness.
    Carol J. Greenhouse.
    Journal of Law and Society. November 08, 2018
    --- - |2 This article is a contribution to the occasional series dealing with major books that have influenced the authors. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, and Nicola Lacey. I have chosen Émile Durkheim's Division of Labor in Society (1893). As for many social scientists, Division was part of my introduction to anthropology, especially for its key concepts of collective consciousness and social solidarity. A standard reading of it formulates Durkheim's idea of law as the expression of collective consciousness; however, later circumstances of rereading gave me a sense of his own doubts on this very possibility. As my ethnographic work has increasingly focused on the strategic aggrandizement of federal power in the United States, I have been surprised to find myself repeatedly reaching for Durkheim's book – particularly for its association of the value of social science with the vulnerability of modern society to democratic crisis. - 'Journal of Law and Society, Volume 45, Issue 4, Page 664-678, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12134   open full text
  • Law and ANT (and its Kin): Possibilities, Challenges, and Ways Forward.
    Emilie Cloatre.
    Journal of Law and Society. November 08, 2018
    --- - |2 This article interrogates the contributions that Actor‐Network Theory (ANT) has made, and can continue to make, to the critical study of law. Both within its original field of Science and Technology Studies (STS) and beyond, ANT has enabled a reimagining of the ‘social’ as relational, heterogeneous, and fluid. In turn, it has argued for a renewed attention to materiality in social analysis. For law, such approach is potentially fruitful, significant, and disruptive of a number of assumptions of previous (socio‐)legal scholarship. In this article, I sketch out key elements (and critiques) of ANT, previous efforts to bring ANT into law, and discuss its potential for enhancing understandings of law. At the same time, I argue that ANT in law is best approached with a commitment to care, and to kinship, and in conversation with feminist thinkers, legal ethnographies, and the discrete voices of law. - 'Journal of Law and Society, Volume 45, Issue 4, Page 646-663, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12133   open full text
  • Feminist Relational Contract Theory: A New Model for Family Property Agreements.
    Sharon Thompson.
    Journal of Law and Society. November 08, 2018
    --- - |2 In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law. - 'Journal of Law and Society, Volume 45, Issue 4, Page 617-645, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12132   open full text
  • Eviscerating Historic Treaties: Judicial Reasoning, Settler Colonialism, and ‘Legal’ Exercises of Exclusion.
    Michael McCrossan.
    Journal of Law and Society. November 08, 2018
    --- - |2 This article examines the reasoning of Canadian Supreme Court justices in the area of Aboriginal treaty rights, paying particular attention to the Grassy Narrows (2014) decision. By not only engaging with the internal logics contained within treaty rights decisions, but also by further contextualizing the decisions and comparing them to the transcripts of their respective hearings, it provides an additional perspective on the socio‐cultural relations of power inscribed within the legal field. Ultimately, the article demonstrates that members of the Supreme Court have displayed a consistent orientation towards logics predicated upon the absorption and elimination of Indigenous legal perspectives. In fact, what a reading of the hearing transcripts together with the Grassy Narrows decision reveals is a judicial privileging of established property interests and extractive impulses underpinning the settler‐colonial development of the Canadian state. - 'Journal of Law and Society, Volume 45, Issue 4, Page 589-616, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12131   open full text
  • ‘It's All About Justice’: Bodies, Balancing Competing Interests, and Suspicious Deaths.
    Imogen Jones.
    Journal of Law and Society. November 08, 2018
    --- - |2 This article draws upon a series of interviews with Home Office Registered Forensic Pathologists to understand how they view and balance competing interests in a deceased body. The actions and professional ethos of this small group of doctors who carry out autopsies in suspicious death cases have very real consequences for both the living and dead. We need to understand the decisions that are being made about our bodies and the remains of those who matter to us, what motivates these and whether they stand up to scrutiny. It is argued that retributive justice both inspires the pathologists and justifies the distress that investigations of suspicious death can cause the bereaved. This approach aims to treat all parties humanely and with sensitivity, but without compromising the need for findings of criminal wrongdoing to be based on evidence and as the outcome of a fair legal process. - 'Journal of Law and Society, Volume 45, Issue 4, Page 563-588, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12130   open full text
  • Creating a New Type of Labour Law Enforcer: The Law Technician in Prato.
    Louise Munkholm.
    Journal of Law and Society. November 08, 2018
    --- - |2 The article investigates, from a socio‐legal perspective, the creation of a new type of local labour law enforcer, known as the ‘law technician’, in the Northern Italian city of Prato. Since the 1980s, Prato has attracted thousands of Chinese migrants who run small workshops in the local garment industry, most of which are characterized by low compliance with Italian labour law. To combat the gaps in workers' protection, a new approach to law enforcement is emerging. Compared to traditional enforcement officials, law technicians represent a proactive approach; they have no sanctioning power and they apply multicultural, multilingual, and multidisciplinary instruments when promoting the protection of workers. Drawing on interview and documentary data gathered during two rounds of fieldwork in Prato in 2014 and 2015, the article contributes with empirical knowledge to advance theory building about the legal cultural transformation of law enforcement in contemporary societies. - 'Journal of Law and Society, Volume 45, Issue 4, Page 538-562, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12129   open full text
  • Transitional Justice, Education, and Sexual Violence Stigma: The Results of a Schools‐based Study in Bosnia‐Herzegovina.
    Janine Natalya Clark.
    Journal of Law and Society. November 08, 2018
    --- - |2- Within the context of armed conflict, the problem of sexual violence‐related stigma is routinely acknowledged. Sustained efforts to tackle it, however, have often been lacking. This article argues that transitional justice processes have an important role to play in fighting stigma, and in creating new attitudinal spaces that enable those who have suffered sexual violence to tell their stories without fear of being mocked or judged. Underscoring crucial linkages between education and transitional justice, the article introduces a novel schools‐based project in Bosnia‐Herzegovina (BiH). Based on analysis of over 800 questionnaires, it demonstrates how a series of talks delivered in BiH high schools on the issue of conflict‐related sexual violence led to some positive and important attitudinal changes vis‐à‐vis common rape myths. These educational efforts to tackle stigma are theorized in the article as highlighting a crucial attitudinal dimension of transitional justice. - 'Journal of Law and Society, Volume 45, Issue 4, Page 509-537, December 2018. '
    November 08, 2018   doi: 10.1111/jols.12128   open full text
  • SLSA E‐Newsletter.

    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, September 2018.
    August 22, 2018   doi: 10.1111/jols.12127   open full text
  • Table of Contents.

    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, Page i-iii, September 2018.
    August 22, 2018   doi: 10.1111/jols.12043   open full text
  • Techniques of Knowing in Administration: Co‐production, Models, and Conservation Law.
    Maria Lee, Lucy Natarajan, Simon Lock, Yvonne Rydin.
    Journal of Law and Society. August 22, 2018
    --- - |2 Law frequently demands the production, sometimes effortful, of adequate knowledge for decision making. This article explores the challenging epistemic demands made by nature conservation law during planning law approval processes for major offshore wind farms. It explores this area through the prism of co‐production: not only are ‘science’ and ‘facts’ socially and legally constructed, but in addition, scientific and factual findings shape society, and law and governance. Models are used in planning law to assess whether bird deaths associated with a proposed wind farm will have an adverse effect on the integrity of a protected site. As much as providing an accurate factual representation of the impact of a wind farm on biodiversity, the models contribute to the very possibility of governing the impact of these novel infrastructure developments on biodiversity. - Journal of Law and Society, Volume 45, Issue 3, Page 427-456, September 2018.
    August 22, 2018   doi: 10.1111/jols.12122   open full text
  • Guilty Pleas in an Inquisitorial Setting – An Empirical Study of France.
    Laurène Soubise.
    Journal of Law and Society. August 22, 2018
    --- - |2 Anglo‐American guilty pleas have inspired criminal justice reformers in many inquisitorially based systems in recent years, in response to caseload pressures. In France, two different procedures based on the defendant's confession were introduced in 1999 and 2004 respectively: an out‐of‐court disposal (the composition pénale) and a prosecution pathway (the comparution sur reconnaissance préalable de culpabilité). Basing its analysis upon direct observations and interviews with French public prosecutors, this article examines the impact of these procedures on the French criminal justice system and its actors. Rather than a move from an inquisitorial to a more adversarial system, data collected for this study show a bureaucratization of the French criminal justice process. The role of public prosecutors is changing from that of judicial officers to caseload managers who have delegated part of their workload to less qualified staff for efficiency purposes. - Journal of Law and Society, Volume 45, Issue 3, Page 398-426, September 2018.
    August 22, 2018   doi: 10.1111/jols.12121   open full text
  • Adjudicating Fear of Witchcraft Claims in Refugee Law.
    Jenni Millbank, Anthea Vogl.
    Journal of Law and Society. August 22, 2018
    --- - |2 In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender‐related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention‐related. Male applicants struggled to make their claims comprehensible as a result of the feminized and ‘irrational’ characterization of witchcraft fears and beliefs. - Journal of Law and Society, Volume 45, Issue 3, Page 370-397, September 2018.
    August 22, 2018   doi: 10.1111/jols.12120   open full text
  • Using Hawkins's Surround, Field, and Frames Concepts to Understand the Complexities of Special Measures Decision Making in Crown Court Trials.
    Samantha Fairclough.
    Journal of Law and Society. August 22, 2018
    --- - |2 Adjustments to criminal trial processes, called special measures, are available to vulnerable and/or intimidated witnesses giving evidence. Findings from interviews with 13 criminal practitioners suggest that there are notable variations in the uptake of special measures between prosecution witnesses, defence witnesses, and the accused in Crown Court trials. These extend beyond any inequality in their legal provision. This article uses Keith Hawkins's conceptual framework of surround, field, and frames as a heuristic device to understand this differential uptake. The framework delineates the various factors – including the socio‐political, organizational, and attitudinal – which can influence decision‐making practices in relation to special measures. In doing so, this article demonstrates two things. First, that changing the legal provision is unlikely to effect much change in practice, absent specific complementary changes to the field. Second, that Hawkins's framework has potential as an explanatory device in decision‐making contexts outside his own health and safety setting. - Journal of Law and Society, Volume 45, Issue 3, Page 457-485, September 2018.
    August 22, 2018   doi: 10.1111/jols.12100   open full text
  • The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia.
    Christine Parker, Rachel Carey, Gyorgy Scrinis.
    Journal of Law and Society. August 22, 2018
    --- - |2 This article critically examines the degree to which higher‐animal welfare label claims change animal welfare regulation and governance within intense meat‐chicken ('broiler') production in Australia. It argues that ethical labelling claims on food and other products can be seen as a ‘governance space’ in which various government, industry and civil society actors compete and collaborate for regulatory impact. It concludes that ethical labelling can act as a pathway for re‐embedding social concerns in the market, but only when it prompts changes that become enshrined in standard practice and possibly the law itself. Moreover, the changes wrought by ethical labelling are small and incremental. Nevertheless, labelling may create ongoing productive tension and ‘overflow’ that challenges the market to listen to and accommodate actors (including animals) on the margins to create ongoing incremental changes. - Journal of Law and Society, Volume 45, Issue 3, Page 341-369, September 2018.
    August 22, 2018   doi: 10.1111/jols.12119   open full text
  • Sharifah Sekalala: Soft Law and Global Health Problems: Lessons from Responses to HIV/AIDS, Malaria and Tuberculosis.
    Sigrun Skogly.
    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, Page 503-507, September 2018.
    August 22, 2018   doi: 10.1111/jols.12126   open full text
  • Riaz Tejani: Law Mart: Justice, Access and For‐Profit Law Schools.
    Anthony Bradney.
    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, Page 492-496, September 2018.
    August 22, 2018   doi: 10.1111/jols.12124   open full text
  • Bernardo Zacka: When the State Meets the Street: Public Service and Moral Agency.
    Michael Adler.
    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, Page 486-491, September 2018.
    August 22, 2018   doi: 10.1111/jols.12123   open full text
  • Barbara Havelková: Gender Equality in Law: Uncovering the Legacies of Czech State Socialism.
    Lydia Hayes.
    Journal of Law and Society. August 22, 2018
    --- - - Journal of Law and Society, Volume 45, Issue 3, Page 497-502, September 2018.
    August 22, 2018   doi: 10.1111/jols.12125   open full text
  • Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore.
    Lynette J. Chua.
    Journal of Law and Society. August 03, 2017
    This article examines collective legal mobilization through the courts, or collective litigation, in a non‐liberal regime. It analyses the emergence and development of collective litigation to challenge the constitutionality of section 377A of the Penal Code, the law that criminalizes same‐sex sexual conduct in Singapore. The analysis focuses on the relational dynamics of collective litigation and legal subjectivities of the social actors involved, highlighting how social positions and strategic interests shaped their interactions and decisions on litigation. While gay rights activists emphasized their movement's collective interests when choosing the appropriate case and lawyers, a movement outsider pursued individual interests on behalf of a client. Due to their divergent social positions and strategic interests, the two teams competed with each other as they initiated two separate constitutional challenges. Tension between the teams led to conflict with constituents of the gay rights movement and influenced their relational dynamics with other parties.
    August 03, 2017   doi: 10.1111/jols.12037   open full text
  • The ‘Reasonable Man’, his Nineteenth‐century ‘Siblings’, and their Legacy.
    Chris Dent.
    Journal of Law and Society. August 03, 2017
    The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth‐century common law. This article introduces the man's siblings – including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial; this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person ‘ (negligence) and the ‘person skilled in the art’ (patents).
    August 03, 2017   doi: 10.1111/jols.12036   open full text
  • Seeking Shelter in Personal Insolvency Law: Recession, Eviction, and Bankruptcy's Social Safety Net.
    Joseph Spooner.
    Journal of Law and Society. August 03, 2017
    Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.
    August 03, 2017   doi: 10.1111/jols.12035   open full text
  • Between Law and Transnational Social Movement Organizations: Stabilizing Expectations of Global Public Goods.
    Mark Hanna.
    Journal of Law and Society. August 03, 2017
    This article draws on Niklas Luhmann's theory and method to present transnational social movement organizations as a solution to the problem of increased expectations of global public goods which fail to find adequate accommodation in law. As a concrete example of the limits of law in this respect, it examines the non liquet of the World Court on the question of the illegality of nuclear weapons. The trajectory of anti‐nuclear norms is traced beyond the limits of law to the alternative structure of transnational social movement organizations, and the article presents such organizations as stabilizing increased expectations of global public goods through their recursive decision making and their capacity to continuously project those expectations at the legal and political systems. This generates observations on the concept of ‘global governance ‘, the structural relations between global civil society and international law, and the role of this form of organization in the evolution of the global political system.
    August 03, 2017   doi: 10.1111/jols.12034   open full text
  • The Dock on Trial: Courtroom Design and the Presumption of Innocence.
    Meredith Rossner, David Tait, Blake McKimmie, Rick Sarre.
    Journal of Law and Society. August 03, 2017
    This article examines the place of the criminal dock in courtroom design. Challenges to the use of the dock have been based upon the inability of the defendants to hear effectively, to communicate with counsel, to maintain their dignity, and to benefit from the presumption of innocence. Increasingly courts are incorporating secure docks, where defendants are partially or completely surrounded by glass (or in some countries, metal bars). To what extent do these changes and modifications undermine the right to the presumption of innocence? We present the results of an experimental mock jury study that was designed to test whether the placement of the accused influences jurors’ perceptions. We find that jurors are more likely to convict defendants when they are located in a traditional dock or a secure dock, compared to sitting next to their counsel at the bar table. We conclude by discussing the implications for trial procedures, counsel communications, and courtroom design.
    August 03, 2017   doi: 10.1111/jols.12033   open full text
  • Companions on a Serendipitous Journey.
    Nicola Lacey.
    Journal of Law and Society. May 02, 2017
    This article is a contribution to the occasional series dealing with major books that have influenced the authors. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, and Roger Cotterrell.
    May 02, 2017   doi: 10.1111/jols.12026   open full text
  • Employee Insolvency Priorities and Employment Protection in France, Germany, and the United Kingdom.
    Federico M. Mucciarelli.
    Journal of Law and Society. May 02, 2017
    When an employer becomes insolvent, employees’ claims for unpaid wages and contributions may be protected through statutory priorities, social security schemes, or a combination of both. This article compares the interplay of employee statutory priorities, if they exist, and social security schemes in France, Germany, and the United Kingdom. While France protects employees through both a statutory priority and a social security scheme, Germany and the United Kingdom have progressively reduced employment protection over the last forty years. Theories of varieties of capitalism and of legal origins cannot fully describe and explain the development of employment protection strategies in these countries. The evolution of the German and British regimes, in particular, are better explained as a sign of profound cultural shifts regarding the position of labour within firms and vis‐à‐vis other stakeholders. Finally, I also show that a cumulative application of employee priorities and insurance schemes is not necessarily redundant.
    May 02, 2017   doi: 10.1111/jols.12025   open full text
  • Sacred Spaces, Sacred Words: Religion and Same‐sex Marriage in England and Wales.
    Paul Johnson, Robert M. Vanderbeck.
    Journal of Law and Society. May 02, 2017
    This article provides an analysis of the ways in which the spatial and illocutionary requirements of English marriage law – which regulate the spaces in which marriages may be solemnized and the words the parties being married must speak – have been used to maintain distinctions between same‐sex and opposite‐sex couples. It shows how religious opponents of same‐sex partnership recognition have relied upon historically entrenched differences between the spatial and illocutionary aspects of ‘civil marriage’ and ‘religious marriage’ to argue in favour of the enactment of law that enables organized religions to exclude same‐sex couples from religious premises and ceremonies that are open to opposite‐sex couples for the purpose of solemnizing marriage. It extends recent international debates about how faith‐based discrimination against same‐sex couples is accommodated by legislators and legitimized by law, and concludes with a consideration of how English law could be amended to end discrimination based on sexual orientation.
    May 02, 2017   doi: 10.1111/jols.12024   open full text
  • Legal Pluralism, Gendered Discourses, and Hybridity in Land‐titling Practices in Cambodia.
    Mikael Baaz, Mona Lilja, Allison Östlund.
    Journal of Law and Society. May 02, 2017
    This article describes and analyses the tensions, ambivalence, and hybridity that prevail in the nexus between discourses of gender and the legal pluralism of the new, formalized, and customary ways of handling land titles. Based on empirical research in Cambodia, it reveals a number of mechanisms, challenges, and inconsistencies in the practice of land‐titling. Foremost, the practice of titling seems to be highly informed by local discourses of marriage, family, gender, and age, which all affect to whom land is assigned; this leaves a hybrid construction in the nexus between statutory law and customary practices. The article departs from this observation and adds three contributions – on a theoretical level – to existing research: by incorporating the dimensions of discourse analysis and legal hybridity, by linking the concept of legal pluralism to the process of hybridization, and by introducing the notion of hybridity of implementation as a supplement to hybridity of law.
    May 02, 2017   doi: 10.1111/jols.12023   open full text
  • Bent into Security: Barrister Contribution to a Skewed Order in Two Terrorism Prosecutions in Australia.
    Willem de Lint, Wondwossen D. Kassa.
    Journal of Law and Society. May 02, 2017
    This article explores two terrorism prosecutions – R v. Benbrika and Ors and R v. Elomar and Ors – to probe how Australian lawyers approach the integration of national security interests into the heart of public law. A brief background is provided followed by an analysis of how the Security Legislation Amendment (Terrorism) Act 2002 (Cth), as amended, and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) deviate from the legal order to produce a ‘skewed blend’ between national security and criminal justice. We examine three ways in which barristers contribute to bending of process in counter‐terrorism trials: accommodation to the precautionary standard, the resetting of equality of arms expectations, and brokered agreements that depend on the deferential relationships within the court. Consequently, the moral asymmetry of terrorism is the backdrop for the ‘plausible legality’ of ‘just world’ derogations from liberal politics.
    May 02, 2017   doi: 10.1111/jols.12022   open full text
  • Contesting Austerity: On the Limits of EU Knowledge Governance.
    Marija Bartl.
    Journal of Law and Society. February 03, 2017
    Lacking robust democratic foundations, EU authority is founded on output legitimacy — delivery of (economic) prosperity through rational governance. Yet current austerity policies are the epitome of irrational governance. While this volume highlights the EU's limited ability to deliver rational output through law and legal rationality, I argue that, without democracy, the EU cannot deliver the desired output through knowledge and technical rationality either. In fact, embedding expert institutions in democratic institutional settings plays a crucial epistemic role, contributing to the production of more reflective, socially inclusive knowledge. Lack of such democratic input in the EU's knowledge production is one of the root causes of its crumbling output legitimacy and the creation of many disenfranchised (internal) peripheries. Three recent challenges of Brexit, TTIP, and austerity may be seen as attempts to reclaim the democratic responsiveness of EU technocratic rule. However, the strategies of exit and voice have not been available in all these cases: in the Greek tragedy, contesting austerity ended in subjugation: a mirror image of ‘rational’ governance if unaided by inclusive democratic process.
    February 03, 2017   doi: 10.1111/jols.12018   open full text
  • Social Rights Constitutionalism: An Antagonistic Endorsement.
    Emilios Christodoulidis.
    Journal of Law and Society. February 03, 2017
    The article discusses how we might understand solidarity as the organizing concept behind the institutionalization of social rights. I argue that writing solidarity into social rights constitutionalism carries productive tension into constitutional thinking because it disturbs the smooth passage from civil to political and finally to social rights. Marshall's influential argument that social rights are continuous to civil and political rights has become both the grounding assumption in constitutional theory and at the same time the most obvious lie in the constitutional practice of advanced capitalist democracies, clearly belied in EU constitutional practice under austerity. I explore the various attempts to accommodate the continuity of civil, political, and social rights in the face of the contradictory articulation of social democracy and capitalism before undertaking something of a defence of the antinomic significance of social rights constitutionalism, and probing what mileage might be left in ‘exploiting’ the contradiction between capitalist interests and social rights.
    February 03, 2017   doi: 10.1111/jols.12017   open full text
  • The Growth of Debt and the Debt of Growth: Lessons from the Case of Argentina.
    Pablo J. López, Cecilia Nahón.
    Journal of Law and Society. February 03, 2017
    Argentina's case is a ‘game changer’ in the discussion about sovereign debt across the globe, particularly regarding debt restructuring. This article reviews Argentina's sovereign debt and economic growth process over the last 25 years and draws lessons from the country's trajectory. Alternating austerity and heterodox economic policies resulted in different outcomes throughout this period. One lesson, in particular, stands out: sustainable debt has been a necessary condition for sustainable growth. Conversely, austerity policies combined with a lax approach toward debt have led to economic recession and debt unsustainability alike. Argentina's case underscores that the only way to overcome the debt‐recession trap is a timely and big‐enough debt restructuring that provides an economy with a fresh start. Neither austerity policies nor debt roll‐overs have done the job. That is why an orderly, predictable, fair, and balanced sovereign debt restructuring system is such a relevant – still pending – component of the international financial architecture.
    February 03, 2017   doi: 10.1111/jols.12016   open full text
  • The Bank, the Bond, and the Bail‐out: On the Legal Construction of Market Discipline in the Eurozone.
    Harm Schepel.
    Journal of Law and Society. February 03, 2017
    The ‘logic of the market’, so holds the Court of Justice, is the standard of legality of financial assistance to indebted member states under EU law and, ultimately, the legal justification for strict conditionality and the imposition of austerity. This logic of the market, though, is different from actual market behaviour. Austerity, it turns out, is not the inevitable response to market pressures but a function of political substitutes for market discipline (Pringle) and technocratic truth seeking about the ‘correct’ price of debt (Gauweiler) which the Court has frozen into law. The perverse consequence of making the modalities of financial assistance dependent on the ‘logic of the market’ is, moreover, to render the assistance as ineffective and expensive as possible. ‘The logic of the market’ in the Court's case law is best seen as punitive and cynical politics masquerading as inept economics.
    February 03, 2017   doi: 10.1111/jols.12015   open full text
  • The Crisis of Law and the European Crises: From the Social and Democratic Rechtsstaat to the Consolidating State of (Pseudo‐)technocratic Governance.
    Agustín J. Menéndez.
    Journal of Law and Society. February 03, 2017
    Europe has been badly hit by several overlapping crises. This article explores how they were triggered by and, in turn, aggravated a structural crisis of European law. It spells out the concrete implications of ‘austerity’ in constitutional terms. First, the crises have led to ad hoc decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the governance of the crises has facilitated the radicalization of the ongoing mutation of European constitutional law, in particular, changes to the structural and substantive constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic Rechtsstaat. Thirdly, the very nature of European law, and in particular its role as the grammar of democratic law, has been endangered: European law is in the process of becoming an instrument of authoritarian governance.
    February 03, 2017   doi: 10.1111/jols.12014   open full text
  • Has (Downturn‐)Austerity Really Been ‘Constitutionalized’ in Europe? On the Ideological Dimension of Such a Claim.
    Clemens Kaupa.
    Journal of Law and Society. February 03, 2017
    In current debate, it is frequently argued that EU law requires or facilitates the implementation of ‘downturn‐austerity’, that is, spending cuts, wage deflation, and tax increases during an economic downturn. More specifically, this ‘thesis of the constitutionalization of downturn‐austerity in Europe’ has two dimensions: a (narrow) normative and a (broader) causal one. The former holds that downturn‐austerity is a legal obligation under EU law; the latter assumes that the European constitutional framework effects downturn‐austerity without necessarily claiming a legal obligation. I will argue that the former is incorrect, and yet shapes the hegemonic understanding of EU law. I will maintain that the normative constitutionalization thesis should be understood as an ideological communication, which aims to cloak the significant distributive effects of the crisis measures with an unwarranted aura of legal necessity, political coherence, and academic legitimacy.
    February 03, 2017   doi: 10.1111/jols.12013   open full text
  • The Guardians of Capitalism: International Consensus and the Technocratic Implementation of Austerity.
    Clara E. Mattei.
    Journal of Law and Society. February 03, 2017
    Current debates on austerity often forget that these policies are almost a hundred years old. This article explores how the combination of austerity and technocracy acted as a powerful tool to secure the compliance of European countries with socio‐economic stabilization after the First World War. Austerity emerged as an economic, moral, and technocratic message as economic experts sought to educate restless post‐war civil society. The article analyses primary austerity documents from the international economic conferences of Brussels (1920) and Genoa (1922). In addition, I use a case study of Italy (1922–1925) to show how austerity succeeded under the first years of Fascism, when the government authorized prominent economics professors to implement the international financial codes devised at Brussels and Genoa. I also consider the scientific writings of De Stefani, Ricci, and Pantaleoni in order to examine the theoretical roots of the technocratic nature of austerity.
    February 03, 2017   doi: 10.1111/jols.12012   open full text
  • Austerity and Law in Europe: An Introduction.
    Marija Bartl, Markos Karavias.
    Journal of Law and Society. February 03, 2017
    There is no abstract available for this paper.
    February 03, 2017   doi: 10.1111/jols.12011   open full text
  • The Problem with ‘What is …?’ Questions, the Literalism of Islamic Law, and the Importance of Being Islamic.
    Mairaj U. Syed.
    Journal of Law and Society. November 03, 2016
    There is no abstract available for this paper.
    November 03, 2016   doi: 10.1111/jols.12007   open full text
  • The New Interdisciplinary Forensic Science.
    Paul Roberts.
    Journal of Law and Society. November 03, 2016
    There is no abstract available for this paper.
    November 03, 2016   doi: 10.1111/jols.12006   open full text
  • Sociology of Law in Germany: Reflection and Practice.
    Alfons Bora.
    Journal of Law and Society. November 03, 2016
    This article is the fourth in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows articles by Kim Economides (Aotearoa/New Zealand), Harry Arthurs and Annie Bunting (Canada), and Renaud Colson and Stewart Field (France).
    November 03, 2016   doi: 10.1111/jols.12005   open full text
  • Judicial Activism in the Name of the Nation: Reneging on the Integration of Immigrants in Greece.
    Dia Anagnostou.
    Journal of Law and Society. November 03, 2016
    Why do courts sometimes decide to liberalize migrants’ rights, while at others restricting such rights, even contrary to the policies of elected governments? This article addresses this question in the context of Greece. It explores the causes and consequences of judicial decision making in a major decision of the Council of State that suspended the most important government reform of 2010, promoting the integration of third‐country nationals. Drawing on judicial politics scholarship, it argues that the ideological and political preferences of key judges were an important influence on the first Council of State decision considered here. However, in the final decision, intra‐court dynamics and the judges’ consideration of external political constraints influenced the court's reasoning, leading to a more moderate outcome, with important consequences for the relaunching of policy reform.
    November 03, 2016   doi: 10.1111/jols.12004   open full text
  • Driving Priorities in Risk‐based Regulation: What's the Problem?
    Robert Baldwin, Julia Black.
    Journal of Law and Society. November 03, 2016
    Both risk‐based and problem‐centred regulatory techniques emphasize giving priority to matters that are serious and important. In the case of both risks and problems, however, issues of identification, selection, and prioritization involve inescapably normative and political choices. It is important, therefore, to understand why regulators target the risks and problems that they do; which factors drive such choices; and how regulation is affected when these factors pull in similar or opposite directions. Such an understanding provides a fresh framework for thinking about the challenges of both risk‐based and problem‐centred regulation. The analysis presented here does not oppose either risk‐based or problem‐centred regulation, but it illustrates why neither is as straightforward as simple calls for ‘better regulation’ may suggest, and it proposes ways in which key aspects of those challenges may be addressed.
    November 03, 2016   doi: 10.1111/jols.12003   open full text
  • European Data Protection Regulation and Online New Media: Mind the Enforcement Gap.
    David Erdos.
    Journal of Law and Society. November 03, 2016
    Data Protection Authorities (DPAs) play a critical role in shaping and applying the regulation applicable to online media expression within the European Economic Area. Drawing on seven ubiquitous types of online new media actors, a comprehensive survey of these authorities was undertaken. It found that European DPAs generally adopt an expansive interpretation of data protection and a constrained understanding of freedom of expression in this space. In contrast, data protection enforcement is weak and lacking in harmonization. Except for street mapping services, each type of online media actor had only faced relevant enforcement action from a minority of these agencies. DPA financial resourcing is very limited. Notwithstanding the development of DPA ‘network governance’, only DPAs with a particularly extensive interpretative stance proved likely to have engaged in extensive enforcement activity. It remains unclear what difference the General Data Protection Regulation will make to resolving this enforcement gap and its related problems.
    November 03, 2016   doi: 10.1111/jols.12002   open full text
  • Political Reliability and the Chinese Bar Exam.
    Rachel E. Stern.
    Journal of Law and Society. November 03, 2016
    This article uses the case of contemporary China to explore an understudied type of political socialization: the bar exam. Content analysis of 3,996 exam questions from 2002–2014 shows a turning point in the mid‐2000s, when the test became explicitly political. The newly political exam is now a site of political learning where tomorrow's lawyers, judges, and prosecutors perform loyalty by exchanging politically correct answers for points. Viewed from this perspective, the Chinese bar exam has much in common with demands for public displays of correct behaviour in other authoritarian states. This adds a fresh, political layer to our understanding of whose interests bar exams serve, and why they take the form they do.
    November 03, 2016   doi: 10.1111/jols.12001   open full text
  • If the State Decertified Gender, What Might Happen to its Meaning and Value?
    Davina Cooper, Flora Renz.
    Journal of Law and Society. November 03, 2016
    As jurisdictions reform gender identity laws to accommodate transgender and intersex people, this article speculatively explores a more fundamental shift: eliminating state law's role in determining and assigning gender status altogether. Adopting a feminist perspective, we explore what the meaning and effects of comprehensively reforming legal gender might be upon gender's constitution as a socio‐legal property, differentially recognized and protected by diverse but unequal bodies. Our discussion proceeds along two intersecting paths. The first concerns the different classificatory methods which could enable state law, without assigning gender, to continue to regulate gender identity decisions, thereby allowing state law to remain involved in tackling gender discrimination. The second concerns the changing form gender might take in conditions where state law withdraws its allocative function. These paths converge in a final discussion which considers what legal and political effects might follow from gender becoming a property that is individually and collectively cultivated.
    November 03, 2016   doi: 10.1111/jols.12000   open full text
  • Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding.
    Nick O'Brien.
    Journal of Law and Society. August 11, 2016
    This article concerns the theoretical and practical contribution of radical lawyer, feminist, and disability activist, Caroline Gooding to disability rights in the United Kingdom. It assesses the impact of her published work in the 1990s and translation of her insights into practice through her work on the Disability Discrimination Act 1995 and later at the Disability Rights Commission, not least in securing in legislation a positive disability equality duty. In particular, it seeks to situate Gooding's contribution within the ‘new civil rights history’, with its emphasis on the role of lawyer as mediator, facilitator, and ‘gatekeeper’. It argues that through her engagement with strategic law enforcement, law reform, and the wider mobilization of the law, Gooding created ‘alternative visions and accounts’ of disability and so forged a decisive connection between disabled people as a social movement and the law, in ways of exemplary value to social movements more generally.
    August 11, 2016   doi: 10.1111/j.1467-6478.2016.00762.x   open full text
  • What's the Use of a Hashtag? A Case Study.
    Helen Carr, Dave Cowan.
    Journal of Law and Society. August 11, 2016
    Although there are now sophisticated techniques for the analysis of social media, socio‐legal studies has yet to draw on them fully. In this article, we demonstrate how Twitter can produce insights about protest, law, and legality, through a case study of protests against the ‘bedroom tax’. The first involved challenging a policy in the courts using a test case or cases. We discuss the litigation strategies and the mess they created and counterpose those strategies with those of four prolific ‘tweeps’ who participated in our study. We argue that, despite the small number of participants, these people have, in their own way, been enormously influential and made things happen. Our position is not evaluative of the different strategies – but, rather, one that recognizes that legality is mobilized in different ways.
    August 11, 2016   doi: 10.1111/j.1467-6478.2016.00761.x   open full text
  • Inventing Drugs: A Genealogy of a Regulatory Concept.
    Toby Seddon.
    Journal of Law and Society. August 11, 2016
    The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty‐first century. The central concept of a ‘drug’ remains under‐theorized and largely neglected by critical socio‐legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal‐regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.
    August 11, 2016   doi: 10.1111/j.1467-6478.2016.00760.x   open full text
  • Developing a Public Interest Mandate for the Governance and Use of Administrative Data in the United Kingdom.
    Graeme Laurie, Leslie Stevens.
    Journal of Law and Society. August 11, 2016
    This article addresses the legal and ethical uncertainties surrounding the use of administrative data for research. Drawing upon best practices developed by the authors in previous data initiatives and engagement with research communities, the article suggests a problematic organizational culture as the most significant barrier to proportionate and good governance of administrative data. Accordingly, it offers a novel means for data custodians to identify key considerations by introducing a decision‐making template that supports public authorities' assessment of preparedness for data reuse through identification of challenges faced, related to sector‐specific practices. As a catalyst for change, the authors advocate a public interest mandate – commitment to safely and ethically use administrative data when it is in the public interest to do so. This is delivered through implementation of the decision‐making template, overt commitment to principles of public interest and proportionality, and engagement with stakeholders to address remaining areas of uncertainty.
    August 11, 2016   doi: 10.1111/j.1467-6478.2016.00759.x   open full text
  • The Cogs and Wheels of Reflexive Law – Business Disclosure under the Modern Slavery Act.
    Shuangge Wen.
    Journal of Law and Society. August 11, 2016
    In response to the novel challenges posed by labour exploitation in the contemporary business context, recent years have witnessed an increasing adoption of reflexive law in the form of slavery disclosure, s. 54 of the United Kingdom Modern Slavery Act 2015 (MSA) being the latest attempt. Given that the pragmatic usages and effects of reflexive law have been explored far less to date than its conceptual and jurisprudential implications, this article seeks to put matters right by critically examining the use of this regulatory mode in the context of s. 54. It also aims to contribute to the broader appraisal of regulatory methods by comparing reflexive laws with the traditional regulatory dichotomy which has long dominated debates on globalized business and human rights.
    August 11, 2016   doi: 10.1111/j.1467-6478.2016.00758.x   open full text
  • Socio‐legal Studies in France: Beyond the Law Faculty.
    Renaud Colson, Stewart Field.
    Journal of Law and Society. May 10, 2016
    This article is the third in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows articles by Kim Economides (Aotearoa/New Zealand) and Harry Arthurs and Annie Bunting (Canada). In this article we argue that in France one can identify work that corresponds to the key strands of socio‐legal research in Anglo‐American societies but that ‘socio‐legal’ as a category of research and scholarship does not have the presence it has in the United Kingdom. French law faculties continue to be strongly shaped by a traditional disciplinary orthodoxy rooted in a highly and distinctively structured form of doctrinal analysis. In the first part, we explain the relatively limited presence of socio‐legal studies in French law faculties in terms of the historical and institutional mechanisms by which disciplinary closure has been created and maintained around traditional orthodoxies. But in the second part we will trace the presence – predominantly outside law faculties – of significant fragments of socio‐legal practice in the scholarship of law and allied disciplines.
    May 10, 2016   doi: 10.1111/j.1467-6478.2016.00752.x   open full text
  • Privacy and Search Engines: Forgetting or Contextualizing?
    Sylvia de Mars, Patrick O'Callaghan.
    Journal of Law and Society. May 10, 2016
    This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice's judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman's idea of ‘information games’ and Nissenbaum's theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court's binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.
    May 10, 2016   doi: 10.1111/j.1467-6478.2016.00751.x   open full text
  • Connections and Tensions Between Nationalist and Sustainability Discourses in the Scottish Legislative Process.
    Andrea Ross, Rhys Jones.
    Journal of Law and Society. May 10, 2016
    This article illustrates how sustainability and nationalist discourses have operated together in practice in Scotland. Potential connections and tensions between nationalist and sustainability discourses are identified and used to analyse the events leading up to the passage of the Climate Change (Scotland) Act 2009 and the Regulatory Reform (Scotland) Act 2014. The analysis reveals how in certain contexts, the tensions and connections between sustainability and nationalist discourses can align to reinforce transformative initiatives while in other contexts, the tensions can lead to initiatives being watered down or set aside. The article concludes that more could be done to emphasize the connections between the two discourses. Engagement at the level of ‘nation’ can lead to sustainability discourses that are more attuned to nationalist values, increased public understanding, and acceptance of sustainable development, as well as additional opportunities for debate, public participation, and education.
    May 10, 2016   doi: 10.1111/j.1467-6478.2016.00750.x   open full text
  • A New Leviathan: Benefit Sanctions in the Twenty‐first Century.
    Michael Adler.
    Journal of Law and Society. May 10, 2016
    This article highlights the spectacular growth of benefit sanctions in the United Kingdom which, at their peak, exceeded the number of fines imposed in the criminal courts. It proposes a three‐fold typology of monetary sanctions – punitive judicial sanctions, exemplified by court fines, regulatory administrative sanctions, exemplified by parking penalties, and disciplinary administrative monetary sanctions, exemplified by benefit sanctions – and compares them in terms of their main aims, how they are imposed, whether the interests of those sanctioned are protected, their severity, the socio‐economic characteristics of offenders, the hardship caused, how proportionate they are, and whether they are compatible with justice. It argues that they are particularly problematic because their severity causes great and disproportionate hardship, and because, in addition to punishing offenders, they also attempt to discipline them by managing their behaviour, and concludes that, in the United Kingdom, they function as a key instrument for disciplining and managing the poor.
    May 10, 2016   doi: 10.1111/j.1467-6478.2016.00749.x   open full text
  • ‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills.
    Daniel Monk.
    Journal of Law and Society. May 10, 2016
    This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.
    May 10, 2016   doi: 10.1111/j.1467-6478.2016.00748.x   open full text
  • Karl Polanyi and the Problem of Corporate Social Responsibility.
    Lilian Moncrieff.
    Journal of Law and Society. August 09, 2015
    This article considers Corporate Social Responsibility (CSR) as part of the projects in ‘new governance and decentred regulation’, which draw social forces towards the regulation of economic behaviour. It uses Karl Polanyi to open up pertinent interfaces between society and economy for observation, and Gunther Teubner to substantiate a ‘regulatory’ view of the company's social relationships. The article finds that CSR combines movements for the recognition of social relationships, on an unprecedented scale, with rigorous simultaneous movements for market building and social abstraction. Twenty‐first‐century market economy is defined by a capacity to contain ‘the social,’ which is thrown between the two movements, creating opportunities for companies to void the market's social limits. The article counterposes that the social that ‘returns’ after marketization needs to find its way past market‐building CSR, to constructively unshackle and redefine the framing of social conflicts that concern the corporation.
    August 09, 2015   doi: 10.1111/j.1467-6478.2015.00718.x   open full text
  • Implementation in International Business Self‐regulation: The Importance of Sequences and their Linkages.
    Tony Porter, Karsten Ronit.
    Journal of Law and Society. August 09, 2015
    Self‐regulation by business is increasingly common internationally, but the effective implementation of international rules often continues to be seen as something that only states can carry out. We argue that more exclusively private forms of effective implementation can be constructed in self‐regulation. Drawing on research in private international law, public policy implementation and self‐regulation, we identify four distinct implementation sequences: monitoring, compliance, adjudication, and sanctioning. These sequences are sometimes constituted in response to deliberate integrated plans, but also come together in a decentralized manner. Many international business actors devise ways to carry out the sequences in order to implement rules that are important for them, reflecting a functional logic of implementation that is creative and pragmatic, and together constitute an important stage in the policy process of self‐regulation.
    August 09, 2015   doi: 10.1111/j.1467-6478.2015.00717.x   open full text
  • Professional Minimalism? The Ethical Consciousness of Commercial Lawyers.
    Richard Moorhead, Victoria Hinchly.
    Journal of Law and Society. August 09, 2015
    This article investigates empirically, through semi‐structured interviews, what shapes the professional ethical consciousness of commercial lawyers. It considers in‐house and private practice lawyers side by side, interrogating the view that in‐house ethics are different and inferior to private practice to suggest as much similarity as difference. In both constituencies, and in very similar ways, professional ethical concepts are challenged by the pragmatic logics of business. We examine how their ethical logics are shaped by these pragmatic logics, suggesting how both groups of practitioners could sometimes be vulnerable to breaching the boundary between tenable zeal for the client and unethical or unlawful conduct. Although they conceive of themselves as ethical, the extent to which practitioners are well equipped, inclined and positively encouraged to work ethically within their own rules is open to question. As a result, we argue professional ethics exert minimal, superficial influence over a more self‐interested, commercially‐driven pragmatism.
    August 09, 2015   doi: 10.1111/j.1467-6478.2015.00716.x   open full text
  • Romalpa and Contractual Innovation.
    James Davey, Cliona Kelly.
    Journal of Law and Society. August 09, 2015
    Socio‐legal studies have given relatively little attention to the mechanisms by which change occurs to the boilerplate that constitute modern contracts. Contrary to the impression left by neo‐classical contract theory (and its descendant, Chicago School law and economics), contracts are not routinely revised to provide an optimal solution. As recent empirical studies show, change is sporadic, even within high‐value contracts drafted by expert practitioners. Improvements to contractual form only arise after some external shock, which reveals the weakness in the prior norm. In the first application of this principle within the United Kingdom, the article considers the reputed rapid change in ‘retention of title’ clauses in sales transactions in the mid‐1970s, and identifies the factors, and personalities, that led to such rapid legal innovation and change.
    August 09, 2015   doi: 10.1111/j.1467-6478.2015.00715.x   open full text
  • ‘Am I Free Now?’ Overseas Domestic Workers in Slavery.
    Virginia Mantouvalou.
    Journal of Law and Society. August 09, 2015
    This article examines United Kingdom overseas domestic worker and diplomatic domestic worker visas in place since 2012. These visas tie workers to an employer by making it unlawful for them to change employer, even when seriously exploited or abused. The article presents the findings of a qualitative study of overseas domestic workers, exploring how this vulnerable and difficult (for researchers) to reach group experience these visas in practice. Workers reported instances of exploitation and abuse by the employers with whom they arrived in the United Kingdom. Having escaped, they have become undocumented, and are trapped in ongoing cycles of exploitation. The article assesses what light this empirical exploration sheds on the question of whether the visa is contrary to the prohibition of slavery, servitude, forced and compulsory labour in article 4 of the European Convention on Human Rights and the UK Modern Slavery Act 2015.
    August 09, 2015   doi: 10.1111/j.1467-6478.2015.00714.x   open full text
  • Combating Child Sex Tourism in South‐east Asia: Law Enforcement Cooperation and Civil Society Partnerships.
    Melissa Curley.
    Journal of Law and Society. May 14, 2014
    Many states have enacted extra‐territorial child sex tourism (CST) offences. Despite the existence of these offences, some states, including Australia and the United Kingdom, continue to privilege territorial competence as the basis of criminal jurisdiction. However, many destination countries for CST in South‐east Asia lack the capacity to support prosecutions in this crime. This article explores the utility of partnerships between local and international law enforcement agencies and NGOs to facilitate prosecution in the jurisdiction of the offence. Through a case study of Cambodia, the article argues that such partnership arrangements provide the resources and integration required to enable sexual offences against children, by foreign offenders, to be prosecuted. NGOs undertake complex strategies to address the immediate needs of exploited children, while seeking to maintain their capacity to influence government policy. The risks, challenges, and sustainability of such partnerships are discussed, along with wider implications for South‐east Asia.
    May 14, 2014   doi: 10.1111/j.1467-6478.2014.00667.x   open full text
  • Socio‐legal Studies in Aotearoa/New Zealand.
    Kim Economides.
    Journal of Law and Society. May 14, 2014
    This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.
    May 14, 2014   doi: 10.1111/j.1467-6478.2014.00666.x   open full text
  • The New Puritanism: The Resurgence of Contractarian Citizenship in Common Law Welfare States.
    Philip M. Larkin.
    Journal of Law and Society. May 14, 2014
    In common law jurisdictions, legislative reforms to their welfare states are frequently framed in terms of their innovative nature. However, such legislative reforms, on the contrary, may be representative of a more historical ‘puritan’ view of welfare and citizenship, the doctrines of which originate in the aftermath of the sixteenth‐century Protestant Reformation, and which developed in the following centuries. The core values of this era have always remained within welfare legislation and policy in common law states, and appear to have experienced a resurgence in recent times. These puritan values manifest themselves within welfare legislation under certain distinct themes, which will be expanded upon. The extent to which values of puritan Christianity renders welfare legislation in common law welfare states distinct from that of other welfare states is also a theme which is examined. In addition, the utility of this ‘puritan’ approach towards welfare law and policy is also discussed.
    May 14, 2014   doi: 10.1111/j.1467-6478.2014.00665.x   open full text
  • The Shifting Balance of Power in the Regulatory State: Structure, Strategy, and the Division of Labour.
    Donald Feaver, Benedict Sheehy.
    Journal of Law and Society. May 14, 2014
    The objective of this article is to examine the structural change in government that has enabled the politically strategic changes in governance seen in many OECD countries over the past several decades. In so doing, the legal structures and political strategies underlying the regulatory state are explained. Drawing upon classical theories of the division of labour, two distinct divisions of labour – one legal, the other political – are identified that provide insight into the relationship between the legal structure and political strategies underpinning the emergence of the regulatory state. The implications of this article are that it provides a description of how the executive branch has been able to shift the balance of power significantly in its favour while at the same time divesting itself of its core constitutional tasks of governing the administrative arm of government.
    May 14, 2014   doi: 10.1111/j.1467-6478.2014.00664.x   open full text
  • Stepwise Progression: The Past, Present, and Possible Future of Empirical Research on Law in the United States and the United Kingdom.
    Michael Adler, Jonathan Simon.
    Journal of Law and Society. May 14, 2014
    The article distinguishes empirical research on law from other modes of legal enquiry. It charts the changing fortunes of empirical research on law in the United States and the United Kingdom and accounts for the differences between them. In both countries, the development has been uneven and intermittent rather than gradual and linear, with a number of important differences in trajectories, in particular: the number of growth spurts; their timing; the present position; and whether the rise and fall of activity refers to research on civil and criminal justice or on civil justice alone. The different trajectories are explained in terms of path dependency (the fact that developments in the present are shaped by developments in the past); sequential development (emphasizing the importance of timing and that developments in one institution may be contingent on developments in another); and institutional responsiveness (an institution's capacity to respond to opportunities in its external environment).
    May 14, 2014   doi: 10.1111/j.1467-6478.2014.00663.x   open full text
  • Developing Two‐tiered Regulatory Competition in EU Corporate Law: Assessing the Impact of the Societas Privata Europaea.
    Martina Eckardt, Wolfgang Kerber.
    Journal of Law and Society. February 18, 2014
    Since the Centros ruling in 1999, Europe has evolved a two‐tiered system of corporate laws. This opens up the possibility of some horizontal regulatory competition between the corporate laws of the member states. Following a draft regulation on the European Private Company (SPE), an additional legal form tailored to the needs of small and medium‐sized enterprises (SMEs) is being proposed. We analyse whether such a supranational European legal form can be recommended from the perspective of the economic theory of legal federalism. We present a general theoretical framework for studying centralization/harmonization versus the decentralization of legal rules and regulations in regard to corporate law in the EU. Our analysis of the empirical evidence on horizontal regulatory competition and the advantages or disadvantages of such an additional legal form for SMEs shows clearly that it might render many benefits, compared with the existing situation of only (partial) horizontal competition.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00660.x   open full text
  • Understanding the Board of Directors after the Financial Crisis: Some Lessons for Europe.
    Joseph A. McCahery, Erik P.M. Vermeulen.
    Journal of Law and Society. February 18, 2014
    There are numerous studies on the effectiveness of boards that primarily focus on legal formalities, including gender diversity, board size, remuneration, board evaluation, and the role of the chairman of the board. While attempting to design a one‐size‐fits‐all framework, scholars approaching board independence from an agency‐cost perspective have been less concerned with analysing board structures that contribute to strategic decision making and corporate performance. We examine the factors and board strategies that are associated with value creation and innovation by analysing the composition of high‐performance and high‐growth companies. The article shows that venture capitalists, with their specific expertise and experience, continue to play an important role as independent board members in the post‐IPO period. We specifically investigate the importance of diversity, showing that there are significant differences between the companies in terms of age, gender diversity, and business expertise (which is dependent on the stage in the company life cycle).
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00659.x   open full text
  • Harmonization Process for Effective Corporate Governance in the European Union: From a Historical Perspective to Future Prospects.
    Veronique Magnier.
    Journal of Law and Society. February 18, 2014
    In 2011, the European Commission launched a public consultation on ‘the European Corporate Governance framework’, reflecting the EU's increasing concern about corporate governance issues, and the changes and reforms needed in the aftermath of the financial crisis. The question raised is twofold: first, should new objectives be established, and secondly, which of the various regulatory mechanisms, the traditional unification/coordination tools or the more recent comply‐or‐explain rule, would best fulfill these objectives? The article discusses how the financial crisis has made the harmonization of corporate governance more imperative, why the objectives of corporate governance rules must be enlarged to preserve the interests of companies as a whole, and which mechanism would best achieve these changes. More specifically, it tackles the comply‐or‐explain rule already widespread in Europe, discussing its major advantages and flaws, as well as the efficiency of its control by national and European market authorities.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00658.x   open full text
  • Post‐crisis Corporate Governance and Labour Relations in the EU (and Beyond).
    Charlotte Villiers.
    Journal of Law and Society. February 18, 2014
    This article attempts to explain how corporate governance and macroeconomic policies have impacted on the role of workers and their representatives in the corporate environment and to consider how this has affected their capacity to protect themselves in the context of the financial crisis. It also considers the strategies they might adopt to strengthen their position in the future. It argues for the need to reposition labour law in the legal hierarchy as a first condition but also, and more importantly, that for democratic reasons, trade unions need to work collectively with other civil society and protest movements to hold corporations, national governments, and European institutions to account and, internally, to develop the class consciousness of old and new members.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00657.x   open full text
  • The Financial Crisis: A Reason to Improve Shareholder Protection in the EU?
    Jonathan Mukwiri, Mathias Siems.
    Journal of Law and Society. February 18, 2014
    The global financial crisis of 2008 has stimulated the debate on corporate governance and shareholder protection. The intuitive reason for the topicality of shareholder protection is that insolvencies mainly harm shareholders as the companies' residual claimants. In addition, ideally, shareholder empowerment may ensure better monitoring of management and therefore better‐run companies preventing corporate failures and benefiting the economy as a whole. Yet, it is not self‐evident that shareholder participation has such a positive effect. This article critically examines the discussion about the relationship between the financial crisis, shareholder protection, and law reform. We also develop a central position: while there may be a need to improve shareholder protection, we do not take the view that any increase in shareholder rights is the right way forward; rather, such reforms should aim to encourage shareholder engagement by responsible long‐term investors.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00656.x   open full text
  • Market Discipline and EU Corporate Governance Reform in the Banking Sector: Merits, Fallacies, and Cognitive Boundaries.
    Emilios Avgouleas, Jay Cullen.
    Journal of Law and Society. February 18, 2014
    Much contemporary analysis has concluded that the recent financial crisis and bank failures were, among other things, the result of a breakdown in corporate governance regimes and market discipline. In this context, new regulations advocate such market‐based remedies as tighter investor monitoring and greater control over executives' remuneration, in order to safeguard financial stability. We argue that this approach largely ignores three very important aspects of modern financial markets that cannot be constrained through market discipline: (i) socio‐psychological phenomena; (ii) the epistemological properties of financial market innovation; and (iii) the inherent inability of market participants to predict uncertain risk correlations. Therefore, this article argues that excessive EU focus on corporate governance reforms as a means to improve financial stability detracts attention from much more significant concerns, chiefly, the issue of optimal bank structure.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00655.x   open full text
  • Preventing the Next Financial Crisis? Regulating Bankers' Pay in Europe.
    Andrew Johnston.
    Journal of Law and Society. February 18, 2014
    This article offers a critical appraisal of the way in which executive pay in financial institutions is regulated in the European Union. Despite the widely acknowledged role of executive pay in causing the financial crisis, regulators and policy makers were reluctant to intervene because of the ideology of shareholder primacy and an unjustified belief that this was a matter for companies and their shareholders alone. As a result, the original regulatory scheme which was introduced was very weak. The European Parliament responded to these developments by capping executive pay. The article argues that, while this cap is a crude instrument, it can be justified on economic grounds because it considerably reduces the likelihood of a future financial crisis, with all the social costs that would entail. If it also results in much higher fixed pay, that is a matter of concern for shareholders alone, and might even force them into the activism so long expected of them.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00654.x   open full text
  • Introduction: Exploring Post‐crisis Trajectories of European Corporate Governance.
    Alan Dignam, Michael Galanis.
    Journal of Law and Society. February 18, 2014
    There is no abstract available for this paper.
    February 18, 2014   doi: 10.1111/j.1467-6478.2014.00653.x   open full text
  • ‘Dangerously, Outrageously, Elitist’ – A Solution to Law Graduate Unemployment?
    Sally Wheeler.
    Journal of Law and Society. November 11, 2013
    There is no abstract available for this paper.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00645.x   open full text
  • Northern Lights: From Swedish Realism to Sociology of Law.
    Roger Cotterrell.
    Journal of Law and Society. November 11, 2013
    This article is a contribution to the occasional series dealing with major books that have influenced the authors. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, and Roger Brownsword.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00644.x   open full text
  • Discolouring Democracy? Policing, Sensitive Evidence, and Contentious Deaths in the United Kingdom.
    Greg Martin, Rebecca Scott Bray.
    Journal of Law and Society. November 11, 2013
    This article examines recent United Kingdom government proposals for secret inquests, which, it is argued, are part of a general push for secrecy discernible across common law jurisdictions, and which include developments such as increased recourse to sensitive evidence in forensic settings and the normalization of intelligence‐led policing. While the push for secrecy is justified by national security claims, the article shows that in cases of contentious death involving police, the issue is less about national security and more about the use of intercept evidence, covert surveillance, and intelligence‐led policing, all of which have implications for police trust, accountability, and reputation management.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00643.x   open full text
  • The Influence of Personal Values on Legal Judgments.
    Rachel J. Cahill‐O'Callaghan.
    Journal of Law and Society. November 11, 2013
    The non‐legal factors that influence judicial decisions have been the subject of extensive debate. Theoretical and empirical work has focused on factors including political ideology, activism, attitudes, and demographics. Personal values are related to these factors and are central to decision making. The study described in this article translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in legal opinions revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. An empirical study of legal academics extended this analysis and highlighted the significant influence of personal values on legal decisions. The value:decision paradigm provides a new framework to analyse judicial decision making, judicial division, and judicial discretion and has significant implications for judicial diversity.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00642.x   open full text
  • Popular Music and Copyright Law in the Sixties.
    Jose Bellido.
    Journal of Law and Society. November 11, 2013
    Copyright and its relationship with popular music is one of the most disputed issues amongst music and copyright scholars. While some have accused copyright of being blind (or deaf) to the particularities of popular music, others have defended its significance within the industry. This article contributes to this debate by tracing the networks of connections between lawyers, musicians, and clerks that emerged in a formative period in British pop music (the Sixties). It considers how their collaborative efforts and strategies to present evidence in copyright infringement trials were articulated in an attempt to influence music copyright infringement tests in Britain. By highlighting the concrete geographical and temporal contexts from which these networks emerged and their particular contingencies, the article also casts a new light on the impact of the legal profession on copyright, showing a practice‐oriented and historically situated way of observing differences between French and British copyright systems.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00641.x   open full text
  • Identifying Points of Contact and Engagement Between Legal and Environmental Education.
    Jane Holder.
    Journal of Law and Society. November 11, 2013
    This article explores the shaping and possibly reforming potential of ideas about sustainability in legal education by drawing up a scale of environmental education theories, arranged according to their propensity to transform radically university education. The article offers a critical analysis of current individualist strategies aimed at developing students' environmental skills, in particular that these hamper opportunities for universities to develop a broader and more creative agenda of social change. Applying ideas about how environmental education communities of practice develop, this article identifies some pockets of activity seeking to integrate ideas of sustainability into the law curriculum, including via environmental law and teaching Wild Law or Earth Jurisprudence. These issues form part of an on‐going debate about how well law students are being prepared for work in highly challenging social, environmental, and financial circumstances, against the backdrop of a broader question about ‘what are universities for?’
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00640.x   open full text
  • Second‐hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context.
    Helen Baillot, Sharon Cowan, Vanessa E. Munro.
    Journal of Law and Society. November 11, 2013
    Applicants' accounts of experiences of fear, trauma, violence, and persecution are central to the process of claiming asylum. These narratives are, at a human level, primed to provoke emotional responses, not only in the narrator but also in those to whom the account is relayed. In this article, we explore the vectors of emotionality that permeate asylum decision‐making in the United Kingdom, focusing particularly on the risk faced by the professionals involved of suffering vicarious trauma. More specifically, based on a series of 104 semi‐structured interviews with asylum stakeholders and observation of 48 appeals to the Immigration and Asylum Chamber of the First‐tier Tribunal, this article identifies the adoption by legal and quasi‐legal professionals of emotional coping strategies – of detachment and denial of responsibility – that risk being deployed in maladaptive ways that jeopardize the prospects for justice.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00639.x   open full text
  • The Political Origins of English Private Law.
    Dan Priel.
    Journal of Law and Society. November 11, 2013
    The article seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. I propose to explain the divide, not as a conceptual distinction, grounded in the internal rationality of law, but as a response to the potential problem of political legitimacy arising from the fact that in the domain of private law courts are constantly engaged in making substantive law. That by itself shows that the divide between public and private law is politically motivated, but I further argue that the prevailing view of law among proponents of the divide revives Dicey's conception of the common law within the narrower domain of private law. Since Dicey's views are widely believed to be motivated by his political views, if I am right, this lends support to the conclusion that the views of defenders of the divide are grounded in similar political positions.
    November 11, 2013   doi: 10.1111/j.1467-6478.2013.00638.x   open full text
  • SLSA E‐Newsletter No. 68.

    Journal of Law and Society. August 12, 2013
    There is no abstract available for this paper.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00637.x   open full text
    Gerry Rubin.
    Journal of Law and Society. August 12, 2013
    There is no abstract available for this paper.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00636.x   open full text
    Ole W. Pedersen.
    Journal of Law and Society. August 12, 2013
    There is no abstract available for this paper.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00635.x   open full text
  • Privatizing the University and the New Political Economy of Socio‐Legal Studies: Remaking the (Legal) Academic Subject.
    Richard Collier.
    Journal of Law and Society. August 12, 2013
    There is no abstract available for this paper.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00634.x   open full text
  • Loan Sharks v. Short‐term Lenders: How Do the Law and Regulators Draw the Line?
    Abdul Karim Aldohni.
    Journal of Law and Society. August 12, 2013
    With the Office of Fair Trading (OFT) having just published its ‘comprehensive review’ of some aspects of the business of short‐term lenders, this article examines the phenomenon of short‐term lenders. It draws on the legal and conceptual changes in the United Kingdom's consumer credit sector that have aided their proliferation. It argues that short‐term lenders in their current form are no different from loan sharks and that the current legal and regulatory framework has failed to provide the required protection for vulnerable credit consumers. It highlights how the United Kingdom's legal approach to consumer protection has been to the detriment of short‐term borrowers.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00633.x   open full text
  • ‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies.
    Robert Home.
    Journal of Law and Society. August 12, 2013
    Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00632.x   open full text
  • The Developing Habitus of the Anti‐Social Behaviour Practitioner: From Expansion in Years of Plenty to Surviving the Age of Austerity.
    Kevin J. Brown.
    Journal of Law and Society. August 12, 2013
    Specialist anti‐social behaviour units are common within social housing providers, with many established in response to the policies of the New Labour governments of 1997–2010. These units now find themselves operating in a different political and financial environment. Following the English riots of 2011, the Coalition government, whilst imposing budgetary cuts across the public sector, called on social housing providers to intensify their role in tackling disorder. This article explores the habitus or working cultures within anti‐social behaviour units post‐New Labour. It does so through empirical research conducted in the aftermath of the English riots. The research finds that practitioners view their work as a core function of social housing provision. They have developed an understanding of human behaviour, which crosses the criminal and social policy fields with a wide skillset to match. A number of factors including national policy, community expectations, and multi‐partnership engagement influence their dynamic working culture.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00631.x   open full text
  • Weber Reading Stammler: What Horizons for the Sociology of Law?
    Michel Coutu.
    Journal of Law and Society. August 12, 2013
    This article asks whether the two studies by Max Weber that form his Critique of Stammler are by now only marginal to a study of Weber's work, of historical interest only, given that Rudolf Stammler has long since been relegated to almost complete obscurity. Or could they still lead to a better understanding of the thought of Max Weber? This article argues that the Critique of Stammler offers a still‐relevant contribution to sociological reflection, particularly about law, and valuable guidance for distinguishing normative legal orders from empirical ones, and measuring the causal influence of the former on the latter.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00630.x   open full text
  • Miscarriages of Justice and the Discourse of Innocence: Perspectives from Appellants, Campaigners, Journalists, and Legal Practitioners.
    Siôn Jenkins.
    Journal of Law and Society. August 12, 2013
    This article problematizes the discourse of innocence in relation to victims of wrongful conviction operating within the criminal justice system. For appellants whose convictions have been quashed by the Court of Appeal, notions of innocence are often at odds with how others perceive and understand the purpose of criminal trials and appeals. This article will examine the views of legal practitioners, journalists, and victims of wrongful conviction and their supporters regarding factual innocence and how misunderstanding can sometimes lead to miscommunication by actors operating within the same system. The article will further examine the issue of compensation in light of the recent ruling by the Supreme Court and conclude that the current debate regarding what constitutes a miscarriage of justice continues to confuse legal practitioners and prolong the anxiety suffered by victims recovering from the trauma of wrongful imprisonment and subsequent losses.
    August 12, 2013   doi: 10.1111/j.1467-6478.2013.00629.x   open full text