Search

This paper takes a critical look at proposals to remedy the tort system by using health courts. The paper analyzes whether health courts will remedy or rather exacerbate challenges in the current health care system. In particular, the paper is concerned with patient pursuit of justice and the availability of juries to hear claims. The presentation will take a particular focus on how health courts used to address crises after disaster. It argues that such attempts will be less equitable and frustrate social justice norms. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the legal consciousness literature and considers it in the context of Russia's exceptional transition in penal punishment, which has taken place over the last 16 years. Russian imprisonment remains a much neglected area of socio-legal scholarship and it is even more surprising to note that the embedding of a rights consciousness in prisons, whereby prisoners and penal actors have become knowing, active and vocal agents of human rights in the penal system, has not been matched by debate and discussion about the doctrinal, legal and socio-cultural mechanisms through which this flows. Moreover, how a rights discourse can co-exist with the closing down of both human rights activism and penal reform under the current President Vladimir Putin requires urgent examination. In this paper, I draw on over ten years of empirical research in some 18 penal colonies across Russia and I examine data from interviews and observations, and from analytical work of both English and Russian language documentation. I offer a limited consideration of the legal consciousness terrain in the Russian penal context, but I aim to raise some questions of how rights consciousness emerges in penal settings. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The general belief is that social norms influence behavior and that the willingness to obey legal norms is to a large degree influenced by beliefs and convictions concerning the behavior of others. Yet the nature of the influence of social norms on legal norms depends to a large extent on contingencies which have not been fully investigated. This paper explores two parameters which influence the degree to which social norms influence the willingness of individuals to conform to the law: the type of social norms (positive and negative social norms) and the type of legal norms (rules or standards). The paper employs experimental techniques to explore the effects of these two parameters on legal compliance and the hypothesized interaction that exists between these two factors. The findings indicate that these parameters are important and may affect the degree to which social norms influence the willingness of individuals to conform to the law. While our findings indicate that in the absence of information concerning social norms, rules and standards have similar effects on deterrence, it also indicates that rules and standards have differential effects on deterrence when they interact with social norms. Furthermore our findings also indicate that negative social norms, namely social norms of disobedience have greater effects on the willingness to obey legal norms than social norms of obedience. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The division of paid and unpaid work between men and women is still unbalanced in the Netherlands and this has an important impact on income and power relations. The employment rate of women is much lower than the employment rate of men. The number of working hours, the kind of work and their positions in the labour market diverge. The gendered division of labour gets even stronger when employees become parents. A great majority of women quits the job (11%) or reduces their working time after the birth of the first child (49%). Only 9% of the fathers quit or reduce the working time (SCP & CBS: Emancipatiemonitor 2006, p. 110).Policies of the Dutch government are aimed at achieving a better work-life balance. Part of this strategy is a better quality of non-standard work such as casual work, part-time work and fixed-term contracts. A right to adjust one's individual working time has been introduced by statutory legislation in 2000. Bills aimed at facilitating the conciliation of work and family life and on childcare have been adopted and been subject to evaluations. A recently adopted Act on lifecycle agreements should facilitate career interruptions. Currently more fundamental questions are being discussed, such as changes to the social security system. This paper will sketch these recent developments in the Netherlands, assessing them from a gender perspective. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper reports preliminary results from a study of a random sample of federal case filings in employment discrimination cases from 1990-2003, as well as qualitative interviews with parties and lawyers involved in a subsample of cases. Statistical analyses examine the nature and outcomes of cases. The qualitative data examine how parties and lawyers viewed the cases and their experience with the discrimination litigation system. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This project is centred on questions concerning research, bioprospecting and technological development related to genetic resources in Brazil and Kenya. It is based on an international and interdisciplinary cooperation on law, sociology and political science. It examines the role of legal and regulatory instruments related to the Provisional Measure 2.186-16 (MP) and Legal Notice No. 160 (2006), which introduces in Brazil and Kenya, respectively, the recommendations of the Convention on Biological Diversity (CBD), and establishes access to genetic heritage and other objects related to it. The CBD introduces a new international law over genetic resources, establishing a mechanism of exchange between countries with biotechnologies and those rich in biological diversity: For the first group of countries, access to genetic resources has to be facilitated (Art. 15(2)); for the second group, a fair sharing of the benefits arising from the utilization of genetic resources must be assured. Nonetheless, the recommendations of the CBD leave a set of problems unresolved. For example, as the CDB recognises the value of knowledge, innovations and practices of indigenous and local communities (Art. 8j), it allows the claim of legal sui generis protection, which competes with intellectual property rights. The methodological approach focuses on the legal-administrative implementation of CDB, including a systematic examination of the bioprospecting projects, a legal analysis, case studies and interviews with the key actors involved, e.g. the CGEN (Genetic Heritage Management Council) in Brazil and NEMA (National Environmental Management Authority) in Kenya, indigenous peoples and representatives of companies. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Literature on sexual assault largely characterizes the sexual assault victim as inevitably alienated from their kinship and care network. This characterization is rooted in a particular emphasis on the sexual victim's relationship with their spouse or partner. This paper contends that sexual violence, and the attendant institutions that mobilize against the intervention, may function to recast the very nature of intimacy between victims and their family members. The reforging of intimacies becomes more visible when the sexual assault victim's relationships are broadly examined. Focusing on the victim's network of care and multiple meaningful relationships therein, I demonstrate how sexual violence becomes an opening for sexual assault victims to renegotiate and realign loyalty, care and intimacy by making legal decisions that weigh the interests of many stakeholders within their social network, including parents, children, aunts and uncles, cousins, friends, and sexual partners past and present. These realignments are contingent on navigating the forensic and legal institutions, in particular, opting to withdraw or forge on at critical moments. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

During the 19th and early 20th centuries, Latin America fiercely defended equality as one of the pillars of the world order. In times when diplomatic protection of citizens and investors by the north hemisphere powers included military self-help, the so-called Calvo Doctrineâ??wrongly attributed to the Argentinean jurist Carlos Calvoâ??embodied the principle of equality of treatment between aliens and nationals (also known as the "national treatment" standard or the "equality as the maximum" standard). This paper analyzes the historical and normative foundations of the Calvo Doctrine, and argues that an updated version is needed in the context of international investment law. Contrary to what is usually assumed, the Calvo Doctrine was an instrument created to foster foreign investment, not to deter it. Latin America offered equality of treatment to Europeans and Americansâ??a concession not granted by customary international lawâ??in order to encourage immigration to the unpopulated new continent. The Calvo Doctrine is not a museum piece. With a proper update, it can provide us a valuable normative guide in the present era of thousands of bilateral investment treaties. The updated Calvo Doctrine defended here makes two claims based on equality: first, that international investment law should not go beyond the protection afforded to property in mature regulatory capitalist countries; and second, that the same levels of protection should be extended to host state citizens to avoid "reverse discrimination". ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Colombian indigenous movements tend to make claims very differently from those in other Latin American countries. Instead of resorting to protests and other large-scale disruption they rely on more institutional tactics like litigation. However, despite having panoply of legal tools, the U'wa indigenous people near the border with Venezuela deviated from the traditional tactical repertoire of indigenous movements. Only four years after a new 'multicultural' constitution was in force, the U'wa campaigned against oil exploration in their ancestral territory. Although they initially relied on legal tools to make their claims, they soon changed their form of mobilization, and legal tools became just marginal in their campaign. Instead of using legal institutions, the U'wa forged alliances with activists and organizations abroad. This allowed them to create a transnational network and confront the oil companies directly by using tools of economic pressure in the U.S. and Europe where the oil companies had their headquarters. My paper explains why the U'wa departed from their initial law-centered strategy. I claim that the U'wa and their supporters deviated from this strategy because of the combined effect of the following factors: 1) Neoliberal reforms attracted transnational mining and hydrocarbon corporations to indigenous territories, increasing conflicts and aggravating power asymmetries between the parties to such conflicts. However, 2) Indigenous groups could not use legal tools to resolve these conflicts because after neoliberal reforms and multiculturalism courts started incentivizing direct, unmediated exchanges between these companies and indigenous groups instead of deciding the outcomes of the conflicts between them. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Access to justice may mean different things to different people, but it seems clear that it refers to an aspiration of providing access to a goal called justice. Traditionally in the Netherlands, as in other countries, access to justice focused on providing access to courts and, to ensure equality of arms and a fair trial, to legal representation. But due to the length of court procedures and high costs of legal aid schemes, to name but a few of the problems the Dutch legal system faces, there is growing attention for alternative dispute resolution mechanisms. Following the successful introduction in the Netherlands of alternative dispute resolution, in particular mediation, in civil law cases (e.g. family matters and neighbour disputes), it is now also applied in administrative law disputes between citizens and the government. At different stages in the procedure the use of mediation has been introduced to speed up dispute resolution, but also to provide a more responsive handling of complaints and objections. At the same time however, the procedural rules in Dutch administrative law (continue to) contain a number of formal requirements that when not complied with automatically deny people access to justice. This paper will assess to what extent there is room for manoeuvre for mediation, being a more responsive approach to justice, within in Dutch administrative law disputes, and where it clashes with the rigid and restrictive regime of Dutch administrative procedural law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will explore the concept of legal pluralism through the lens of legal history. It will first offer a critique of history's capacity to acknowledge plural legal orders. Then it will reverse the polarity of the critique by examining the concept of legal pluralism from an historical standpoint. In this way, both history as theory and method and legal pluralism as concept become objects of critical attention — the goal of the paper is to determine exactly what each can tell us in light of the other. Examples will be drawn mostly but not exclusively from American legal history. [ABSTRACT FROM AUTHOR]

The paper summarizes the development of the "Law and Cinema Movement" over the past 20 years. Its beginning was marked by LSA president Stewart Macaulay among others. In his Presidential Address he highlighted the importance of the popular legal culture. The paper applies Harold Lasswell's five questions: Who says what to whom by which means to what effect first to movies and films on law. By this, research results of the Law and Cinema Movement are reviewed. Then, the paper applies these five questions to the Movement itself identifying its protagonists, its messages, its audience, its means of communication and finally assessing its effects. The paper concludes with thoughts on the future development. American, British and Continental-European films and scholars are equally represented in the paper. [ABSTRACT FROM AUTHOR]

This paper compares the legal thought of Eugen Ehrlich and Roscoe Pound and specifically, the emergence of a distinction between law in the books and law in action, a distinction which was central to the work of both thinkers. It argues that one way to understand the roots of this distinction is to see it as a product of the fact that Pound and Ehrlich shared a similar personal background. When they began actively advocating the study of informal law, both Pound and Ehrlich were teaching law in provincial towns (Czernowitz in the Austrian province of Bukovina and Lincoln, Nebraska) situated on the frontiers of empires. Both towns were marginal places where different cultures clashed and where the legal culture of the center of the empire had only a tenuous hold. Scholars working in such an environment, it is argued, would tend to be more aware of the gap between formal state law and the actual norms governing the daily lives of people than scholars working at the center of an empire. The paper ends with a call for an intellectual history of jurisprudential thought that would be informed by comparative insights and that would seek to study the effect of center-periphery, empire-province structures on legal thought. [ABSTRACT FROM AUTHOR]

From the attacks on the subway infrastructure in Madrid to those on the banking and financial infrastructure in New York, to the anthrax scare on the US postal infrastructure, infrastructure projects are sites of contestation in the War on Terror. This paper seeks to shed light on why infrastructure projects figure prominently in the War on Terror. So important are they that nations have established agencies and initiatives devoted to protecting their critical national infrastructures. This paper argues that present attempts to safeguard these infrastructures are too limited in their approach, suggesting a need for a more expansive response to the terrorist threat. [ABSTRACT FROM AUTHOR]

This paper presents a comprehensive, context-based theory which both places cross burning in its proper doctrinal framework and recognizes the history of cross burning as one of Ku Klux Klan inspired terrorism directed at African Americans. Critical commentary on the Supreme Court's decision in Virginia v. Black prefaces an analysis of the full landscape of cross burning cases including another issue to which others have paid little attention- the ways in which state courts have negotiated First Amendment challenges to cross burning statutes. Thoroughly examining cross burning from each of these perspectives, the paper argues that cross burning should be treated as hate crime, which may be prosecuted, rather than as constitutionally protected hate speech. [ABSTRACT FROM AUTHOR]

This paper presents a model for understanding how technology regulates. The notion that technology serves as a form of regulation is widely recognized in the scholarship on information technologies (Lessig 1999). For example, information technologies affect societal concerns such as accessibility, privacy, and security in online environments. While scholars have recognized that technology regulates, the theoretical understanding of technology as a form of regulation is immature. In this paper, we present a model, the Recursive Regulatory Model for Technology (RRMT) that seeks to understand how technology regulates. This model is largely based upon Giddens structuration theory with some insights from Actor-Network Theory. It theorizes how technology develops, evolves, and acts as a regulatory mechanism. Our model contains three elements — institutional settings, humans, and technology, which are related recursively. Part of the model considers the recursive relationship between individuals and institutional settings, which is widely recognized in the literature on organizational behavior. The second part of the model is more novel, and focuses on the recursive relationship between humans and technology. Aspects of this relationship include how technologies are inscribed with norms and values, that users have a degree of agency in using technologies, and how technologies can be reconfigured and modified. To support this thesis, we synthesize the existing literature within communications, law, and science and technology studies. Finally, we highlight the usefulness of this model by employing it to study the evolution of cookies technology. The cookies technology allows web sites to maintain information on their users, and therefore, has implications for privacy. Its development was shaped by a number of institutions, including universities, firms, and consortia. The recursive nature of how cookies regulates is evident in how the cookies technology changed over time to include features that allowed users to better manage the cookies technology. These changes only came about after individuals both collectively, through government and public interest groups, as well as individually pressured Netscape to reconfigure the cookies technology. Our paper analyzes this process using the RRMT and shows how RRMT allows us to better understand how the cookies technology affected, i.e., regulated, individuals. [ABSTRACT FROM AUTHOR]

This paper considers the relationship between law and voluntary employer behavior in redressing structural exclusion through an examination of procedural protection for disadvantaged workers. In the last decade several courts interpreting the ADA have held that employers are statutorily required to engage in an interactive process with workers to identify means of accommodating their disabilities. In so doing, they have created what in effect is a procedural right of workers that is distinguishable from and supplemental to the substantive right to reasonable accommodation afforded by the statute. This move resonates with both the history of employment law as vehicle for conferring bargaining rights and recent developments in the discrimination regime, such as the creation of an affirmative defense to harassment liability for employers who implement preventative policies. Drawing on courts' development of the ADA 'interactive process' requirement, this Article queries whether a comparable approach might be useful in redressing forms of structural exclusion other than disability. It suggests that emphasis on procedural protection for workers may incentivize the development of positive voluntary procedures for preventing and correcting exclusion. In so doing, the paper aims to further refine the relationship between public regulation and private behavior in reaching the goal of true workplace equality. [ABSTRACT FROM AUTHOR]

This paper reports early findings from a study of the proliferation of rules in the medical world. Drawing on fieldwork in an HIV clinic, the paper examines rules, particularly externally-imposed ones, as attempts to reshape attention. Because compliance with rules (including formal regulations, standard operating procedures, guidelines, protocols, and the like) is so time consuming, clinic workers worry about the displacement of important matters by less important ones. Ironically, they often conclude that if they are to conserve attention for the really important things, they must think hard about how not to think about trivial matters. The paper considers the full range of clinic workers' responses to regulation and discusses how these responses vary with who and what is being regulated. [ABSTRACT FROM AUTHOR]

This paper focuses on the impact of new technology on citizen participation in the rulemaking process. It argues that the centralization of rulemaking practice on the web and the shift to point-and-click commenting is as likely to transform citizen participation into "notice-and-spam" as to democratize it. The paper argues, in the wake of technological change, for a shift away from an emphasis on the mere right to participation and toward examination of actual participative practices, the how-tos of participation, and how they might be successfully mapped onto new technical architectures. The paper offers concrete technical, methodological and policy innovations to render citizen participation more manageable and effective at providing information and, at the same time, to give rise to deliberative civic communities of interest around regulatory issues. [ABSTRACT FROM AUTHOR]

Environmental enforcement in Brazil and other developing countries has often been regarded as weak and ineffective, particularly with regard to powerful political and economic actors. While there may be strong laws on the books, enforcement agencies tend to lack resources and be subject to political pressures that favor economic development. Strategies to improve environmental enforcement generally involve strengthening the legal instruments of enforcement, particularly the usage of civil penalties and criminal prosecution. Brazil serves as a case study of the involvement of public prosecutors, and more generally of increasing the use of legal actors and instruments, to address environmental problems. Granted strong powers during the democratization of the 1980s to defend diffuse and collective interests using civil investigations and lawsuits, prosecutorial institutions became active in the enforcement of environmental laws. My research focuses on how their involvement has reshaped environmental enforcement in Brazil. The paper that I propose to present, based on a chapter of my dissertation, shows how the involvement of prosecutors has made environmental enforcement in Brazil more legalistic and sanction-based. Rigid interpretation of the law and formal legal penalties characterize the new style of environmental enforcement. While the legalistic enforcement style harbors some of the inefficiencies noted in the sociolegal literature on environmental regulation, it increases the legitimacy of environmental law in Brazil by publicizing the subjection of powerful political and economic actors to the rule of law. The paper contributes to the literature by advancing the understanding of the relationship between enforcement style and outcomes in different political, economic, and cultural contexts. In the Brazilian context, the new legalistic enforcement significantly strengthens mechanisms of deterrence, agency accountability and citizen participation. While it shares the inefficiencies of legalism apparent in other contexts, it is highly valued for its contribution to rule of law. [ABSTRACT FROM AUTHOR]

Over the last century, American society has witnessed an explosion of statutory prohibitions. While this trend may be a natural reaction to an increasingly complex world, the sheer number of crimes and the resulting prolixity of the criminal code has serious costs: Overcriminalization has sapped the law of its educative and stigmatizing power; the widespread flaunting of the new legal mandates has created opportunities for pretextual, arbitrary, and discriminatory enforcement; and the law has suffered an overall loss of respect. This paper examines the problem of legally prohibiting conduct in the face of contrary social norms. It argues that bald prohibitions, while often the easiest and seemingly most obvious response to an undesired activity, are often also the least effective and most socially costly. Legal prohibitions require accompanying physical and/or structural constraints to help them alter existing norms. The paper first uses speeding as an illustrative example of the bizarre practices and costs that result when legislatures attempt to change social behavior by fiat alone. Here, dissonance between substantive law and social norms has led not only to low compliance, but widespread evasion tactics and a view of enforcement as a game. The paper then explores how a greater emphasis on structural mechanisms, such as mechanical governors or innovative road designs, could have more successfully addressed the speeding problem. Using the lessons learned from speeding, the paper then turns to the current music piracy debate, concluding that once again attention has centered on enforcement, penalties, and other misguided, solely fiat-driven solutions. It argues that only through greater attention to structure-copy protection and other technologies-can the law hope to change social norms and stem the seemingly intractable piracy problem. [ABSTRACT FROM AUTHOR]

The proposed paper addresses the issue of legal identity as it is constituted in and through the practice of legal filing. The key thesis of the paper is that legal identity is a narrative concept introduced, developed and specified in the course of legal casework whose manifestations travel into the defendant's file by way of recordable legal actions. The movement from the non-legal narrative to the legal narrative sphere is temporally stipulated and, as such, is restricted on two levels: a) by way of non-legal stories becoming legal (tending toward a certain pragmatic resolution) and b) by way of various legal documents relating to each other in a procedurally compliant way. Both levels are bound together by narrative temporalization, i.e., non-linear ordering of events into a coherent - for legal purposes - narrative. The investigation is done in the ethnomethodological register with the focus on the actual practices of legal professionals (defence attorney, in this particular case). Ethnographic practice assists this investigation by providing multiple sources of data (participation observation, interviews, recordings as well as physical documents) related, albeit to a various degree, to a legal file. A specific case collected in this file will be used as an illustration of the key thesis. Legal ethnographic studies along with the theories that deal with narrative identity construction will provide a framework for the analysis and a conceptual basis for its findings. The main objective of this investigation is to trace the development of a case in terms of its reliance on procedural rules and ethnomethods toward building a new, explicitly legal, identity. [ABSTRACT FROM AUTHOR]

In a landmark 1988 essay, Rogers M. Smith suggests that there were two different roads leading to New Institutionalism: the struggle by some political scientists against behavioralist explanations of law, and the struggle within Critical Legal Studies (CLS) against Marxist explanations of law. Since these roads eventually converged, most New Institutionalists have tended to emphasize the first road at the expense of the second. However, New Institutionalism now finds itself at an impasse in its debate with behavioralist-inspired explanations, like Attitudinalism, over the extent to which institutional practices and norms affect judicial decisions. In order to resolve this impasse, this paper argues, New Institutionalist scholars should reexamine their intellectual debt to CLS's constitutive theory of law. This paper conducts such a reexamination by showing the relevance of early CLS scholarship to current New Institutionalist questions about the relationship between the law and politics. I describe and explain CLS's development and abandonment of the so-called 'constitutive' theory of law. Ultimately, I argue that this theory has the capacity to guide New Institutionalist scholars to a better empirical explanation of the relationship between law and politics than that of their Attitudinalist critics. [ABSTRACT FROM AUTHOR]

This paper addresses legal consciousness and inequalities through the analysis of the implementation of the recent laws reducing working time in France (the famous '35 hour laws' adopted in 1998 and 2000, which have been frozen in 2002 by the new right-government). It has already been shown in empirical studies how these laws have increased inequalities at workplace between the skilled and unskilled or female and male workers. Here, I want to explore in this paper how narratives of 'time' could be a key point to analyze 'legal consciousness' and inequalities at the workplace. Varieties of time and legal consciousness could be analyzed, as well as the ways they are connected, via the vocabulary used by employees from several companies. Importantly, legal consciousness must be linked to resources, constraints and power relations peculiar to workplaces and their employees. Because organizations determine role, power relations and social and professional integrations, 'narratives' on the implementation of law by employees reveal the constitution as well as the contestation of social inequalities. [ABSTRACT FROM AUTHOR]

Using the case study of the Tlaxcalan community in New Spain, this paper examines how native people used the legal system of the Spanish Empire to advocate on their own behalf between 1580 and 1640, and how their persistent activity influenced the evolving imperial system. During this period, the native population fell to its nadir; the Spanish and casta (mixed race) population grew dramatically; and the separate Spanish and Indian jurisdictions (república de indios and república de españoles) broke down. As Spaniards and castas increasingly bought and usurped uncultivated land in the region, the Tlaxcalans used the political and legal system to influence the transfer of land, cultural norms and political jurisdiction. Adjusting to the changing social and political reality, this paper shows how Tlaxcalans adapted their legal strategies and negotiated change in the legal system. Conversely, the paper argues that in the process of acting in the system, Tlaxcalans influenced the application and interpretation of Spanish law and prompted the Crown to promulgate new laws. [ABSTRACT FROM AUTHOR]

This paper will examine why, of all legal areas, property issues are such a popular plot device in children's fiction, and what readers really learn about property 'law' from children's books. It notes that authors commonly offer one message (usually a conventional one according to the political and religious mores of the society), while encouraging or permitting a different, possibly subversive, reading by those who read from less privileged positions. The paper considers whether property has a particular significance for girl readers, who may recognise that women's access to property is more restricted than men's and who may grasp, as a result, the material basis of men's power. This might also explain why, in stories for girls, equitable solutions are often preferred in property disputes to the strictly legal, for equity has the potential (rarely fulfilled, it is true) to do greater justice to women in property disputes than strict law. Feminist legal scholars have noted and chronicled women's absence from property law considerations across the twentieth century and the continuing barriers to fair property division decades after the introduction of supposedly egalitarian laws and remedies in both the UK and the US. Novels are diverse as the Nancy Drew classics, the English 'Abbey' series and William Mayne's surprising story about adverse possession, A Parcel of Trees, will be considered to argue that the focus on property law in children's fiction, whatever it says about the authors, can be, for readers, variously empowering or compensatory, politicising or complacency-inducing, depending on who they are and what message they are able to take from the text. [ABSTRACT FROM AUTHOR]

This paper will discuss the interconnections between dominant scientific strands in Western thought and claims to objectivity in what I refer to as "legal-economic theory". The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labled "law and neoclassical economics"). The law and neoclassical economics movement, as an extension of the neoclassical economics movement, gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. Those philosophical movements in turn were directly affected by Einstein's theories of relativity. In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos. This paper will be an attempt at a brief sketch. The paper is derivative of a larger project I am in the process of completing that engages the same type of analysis covering the historical trajectory of legal-economic theory in American intellectual thought. The book, under the same title as the paper, will be published by Duke University Press. [ABSTRACT FROM AUTHOR]

This paper looks at Israeli disability activism in historical context and examines the changing role of law in that process. It explores the connection between the shift from welfare to right as different legal frameworks to address the needs and interests of people with disabilities (PWD) and the changing forms of disability activism in Israel. I show that the welfare era, despite the state's rhetorical commitment to socialism and relatively progressive welfare policies, was characterized by neglect of the general population of PWD, and legal protection of only privileged groups, the dominant among them are work injured and disabled veterans. Interestingly, the result was on the one hand, blossoming of disability related voluntary associations which represent the very beginning of Israeli civil society; but on the other hand a scattered and divided community in which PWD lacked any solidarity. Later on, as welfare and collectivism declined and individualism and rights have strengthened, so has changed the form of disability activism. Thus, more adversarial relations with the state have developed; law was increasingly used as a terrain of struggle, especially through the importation of disability rights language; and a vibrant disability movement has emerged with complex modes of cooperation and competition among its participants. Following a close examination of the role of law and cause lawyers in that movement building process my paper suggests that law has evolved from a hidden mechanism of division and fragmentation in the welfare period, to a potential platform for coalition building in the rights era. It further maintains that although disability rights cause-lawyers had a significant role in bringing the vision of rights and coalition building, it were grassroots associations that maintained continuity with traditional Israeli type public interest work and remained grounded in PWD's immediate needs and hardships; a combination that made the movement more relevant and dynamic. [ABSTRACT FROM AUTHOR]

How should we understand legal philosophy as a whole? Consider the typical undergraduate textbook. It invariably examines the familiar spread of theories: positivist, analytic, natural-law, liberal, utilitarian, critical. Yet ultimately most of them adopt what will be called the dominant, pluralist approach, whereby no one theory is definitively embraced. The spread of theories is ordinarily presented with a view towards assessing each theory's strengths and weaknesses, each theory examined in historical, political or social context. One assumption of the dominant approach is that the several theories diverge not merely in their answers to questions about law, but also in the very questions they pose; that they are therefore too divergent to be subsumed within any single, overarching framework. Contrary to that assumption, it will be argued in this paper that, for all their differences, the themes that have guided Western legal philosophy can be pinpointed within a broadly unified framework. That framework can be built up from a small and discrete number of concepts shared by all of the various theories. In this paper, it will be argued that some set of non-trivial concepts must already be presupposed insofar as the concept of legal philosophy, as it is understood in the Western tradition, has any meaning at all. The sheer possibility of difference across theories already presupposes something common to them, some meaningful degree of sameness, without which they simply would not be recognisable as philosophies of law. The result is that Western legal philosophies can be understood within a largely coherent framework. That framework will be the object of the analysis. [ABSTRACT FROM AUTHOR]

Law and sociology often share an interest in and, at times, a commitment to identifying and (re)enforcing disciplinary boundaries. As a result, opportunities to share insights and examine common questions are often overlooked. Drawing upon the work of social theorist Bruno Latour, together with the writings of Max Weber and Dorothy Smith, this paper will examine how methodological practices in sociology might inform (and be informed by) practices of critical lawyering. In particular, Latour's project of "deploying controversies," elaborated in Reassembling the Social: An Introduction to Actor-Network Theory (2005), parallels many practices of reflective lawyering, and his critique of the (sociological) quest for fixity and stasis has value across disciplines. This paper will focus on Latour's use of "uncertainties" - about groups, action, objects, facts, and accounts - to begin to examine some of the commonalities between his "sociology of associations" and critical, reflective lawyering. Controversies, actual or anticipated, are central to law; in fact, lawyers are often criticized for generating unnecessary controversies as a means of ensuring relevance and full employment. Latour offers an alternative view of controversies as significant for understanding the social world and a method for deploying those controversies. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Drawing upon national survey results, the paper discusses on how decisions made in the process of dispute are correlated with the awareness of law. When people are not aware that their problems are legal ones, they would tend not to choose lawyers and court procedures to resolve their problems. But given that most people do not know whether their problems are amenable to legal resolution, people tend to be chanelled into legal or non-legal ways of resolution by their advice agencies. The awareness of law and the legal consciousness can change in the process of dispute. The paper investigate the role of advice agencies in transforming the awareness of law and the choice of disputing behavior. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This working paper, part of a PhD Thesis in progress, presents how (new) law is rooted in and formed from an organisational structure of joint cooperation. The paper builds on preliminary result obtained from the analysis of empirical material such as interviews and document review.In 1998 a joint cooperation between amongst others the European Commission, The European Space Agency and their member states was initiated. The project was set to deal with the implementation of information services for monitoring the environment and acquired the name "Global Monitoring for Environment and Security (GMES)". GMES is not only set to be implemented in Europe but also aims to be the European contribution to a global infrastructure; GEOSS. However, in order for the GMES to be properly implemented, laws which provide joint regulations of the initiative are considered necessary. Today, each institution and member state has their own set of rules which accommodates their particular space activities but nothing joint with regard to GMES activities are put in place i.e. what we are dealing with here is law-formation in progress. In the process of writing my thesis I have worked with the assumption that the content of the future law (regulating the joint initiative) will be decided by the most influential stakeholders. As a preliminary result I have found that law is being rooted in a large and complex organisational structure rather than in traditional authorities (the states) which, in this context, are somewhat subordinate instead. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will connect a series of issues in property law with open questions from the literature about the psychology of home and place. As one example, the paper connects a series of legal issues relating to the possession of homes - including rent control, rights of redemption in foreclosure, and the taking of homes through eminent domain - with the psychological literature on the impact of displacement on homeowners. Legal scholars writing in these areas have often made questionable assumptions about the psychological relationship between people, place and home. Even in those instances where legal scholars have sought guidance from work on the psychology of place, they have been hampered by the absence of relevant literature or ambiguity in the literature that does exist. The paper therefore frames these issues in a manner relevant to both legal scholars and researches in the psychology of place. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper is divided into three parts. The first part analyses the development of social security provisions for the unemployed in the UK and describes the shift from a passive approach, in which the main function of social security is to prevent hardship, to an active approach, in which the main function of social security is to get unemployed people back into work. This shift has involved the integration of social security policies and employment policies, which were formerly relatively autonomous policy areas. This part of the paper concludes by describing the two main elements of the active approach, the Jobseekers Allowance, which was introduced by the Conservatives in 1996, and the New Deal, a set of programmes that have been introduced by New Labour after its return to government in 1997 and are one of its flagship welfare reforms. The second part of the paper focuses on these developments to the macro level. It notes the government's dissatisfaction with the emphasis in the passive approach on rights at the expense of responsibilities and explores the shift from a contribution-based approach to citizenship, in which rights to benefit, which are derived from work and the payment of insurance contributions, are (relatively) unconditional, to a status-based approach to citizenship, in which rights to benefit apply to everyone who qualifies on income grounds but are conditional in that they are dependent on the individual's behaviour, and then goes on to consider some of the dangers inherent in this development. The third part of the paper focuses on these developments to the micro level and explores the shift from a more bureaucratic and legalistic type of decision-making to a more professional and managerial one. Finally, it examines the implications of this shift for rights of redress and accountability. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will examine the problematic location of authenticity in recent court cases that deal with the legacy of Indian Residential Schools in Canada. Between 1876 and 1986 the Canadian government ran a system of boarding schools for aboriginal children. Many of the thousands of aboriginal people who attended these schools have sued the federal government for physical and sexual abuse, negligence, breach of fiduciary duty, and significantly, loss of culture and language. Neither the courts nor the federal government will recognize loss of culture and language as a legal cause of action. While the courts have awarded damages for assault they have done so based on a calculation of what the aboriginal plaintiffs' lives would have been like minus their residential school experience. This is the "original position" that all tort proceedings seek to determine, and the courts have constructed these in ways that present aboriginal lives as already highly damaged and culturally compromised. In this paper I will examine the contradictory implications of arguing culture loss as a basis of legal redress. Aboriginal people are more often required to show that they have retained an authentic culture rather than that they have lost one; taking the loss of culture to court presents certain risks and reverses the burden of proof in problematic ways. I argue, however, that loss of culture and language is one strategy—with costs—for aboriginal people to make claims about the broader but less legally recognizable injuries of race and colonization. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will examine Ewick and Silbey's (1998) application of Sewell's framework of schemas and resources to the study of legal consciousness (Ewick & Silbey: 1998; Sewell: 1997). My central focus will be on the applicability of this approach to the study of legal consciousness amongst immigrant populations involved in the provision of violence against women and immigrant support services in the non-profit sector. This discussion will raise questions about how to interpret the cultural production of law amongst diasporic populations through the framework of schemas and resources. The use of Ewick and Silbey's (1998) methodology to examine the thoughts and words of interviewees who are more informed about the law than ordinary citizens, but who are not certified as legal professionals will also be considered. This paper will draw upon data acquired through interviews with immigrant legal advocates working for community organizations in Toronto, Ontario. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper uses family law as a lens to address the conflicts in the broader American family. A judge was overheard saying that she did not understand why anyone would want to remain in a marriage with physical, emotional, verbal and financial abuse. As I thought over her remarks, I thought about the state of African Americans in the family called America. In many ways, the condition of African Americans is analogous to the condition of a spouse in an abusive relationship. And, an abused partner has four choices: to leave and to change; to leave and not change; to stay and not change; and to stay and change. Most African Americans are not in a position, nor desire, to leave America permanently, which eliminates two of the options. And, if African Americans are going to stay, they need to change the dynamics of their family like relationship with America.In this paper, I will use domestic violence and battered women literature and theories to evaluate whether some of the precepts for abused partners in the traditional family context can be transformed to precepts to help African Americans change their relationship with America and address the family-like race dysfunction. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper presents a general model of the behavior of organizations developing policies in response to complex and ambiguous laws in which they are trying to satisfy multifaceted goals with constrained resources. It predicts that not only will organizations frequently rely on solutions borrowed from others (consistent with other diffusion findings) but that they will do so in targeted, systematic and predictable ways conditional on the specifics of the situation to maximize their chances of implementing a response that satisfies their goals. The model demonstrates that even when responding organizations are behaving rationally, responses to legal changes can wander off in surprising directions and is consistent with others' findings of both minimal compliance and impact as well as "beyond-compliance" behavior. After explicating the theory, the paper presents preliminary evidence from colleges' and universities' responses to recent legal changes demonstrating that they rely heavily on each other for policy ideas but do so in relatively rational and targeted way ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper presents some findings from the early stages of a comparative project looking at how public organisations respond to risks of legal liability. The research focuses on the activities of roads and highways departments of local government authorities in Ireland and Scotland. Our paper presents an analysis of preliminary quantitative data about the incidence of compensation claims against roads authorities and the responses of the public agencies over time. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper is going to examine the relationship between legal pragmatism and the concepts of justice and rights as we grapple with the post September 11, 2001 (9/11) anti-terrorism measures. Better known as the "war on terror" in Canada and the United States.The paper will take as its focal point Canada's recent unsuccessful attempt to legitimize the security certificate system in the Supreme Court of Canada in the Charkaoui decision. The court struck down the security certificate process. This process was riddled with issues of secret evidence, lack of due process and a serious erosion of the rule law, to mention but a few. The system was primarily concerned with preventing acts of terrorism in the future. Thus it adopted a pragmatic approach.As some legal philosophers point out, legal pragmatism denies that past decisions create legal rights that bind judges in future cases. According to Ronald Dworkin, for example, legal rights, on this account, are only the servants of the best future. Pragmatism is forward-looking.The concept of justice, on the other hand, is primarily concerned with backward-looking considerations. Criminal punishment, for instance, is reserved for wrongful acts committed in the past not in the future. Therein lies the conceptual tension.It will be argued that if the State wants to legitimize/justify the war on terror, the court arena is ill-suited to the task precisely because our courts utilize the concepts of justice and rights in adjudicating cases before them.In the final section the paper will explore the issue of whether legal pragmatism is inevitable in our post 9/11 era. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper is driven by the ambivalence of the American public's response to evidence of the use of torture by U.S. officials. In this paper I argue that the use of torture is not purely a response to the attacks of Sept. 11th, 2001, but rather is largely a product of an overall cultural shift in American outlooks on the rights of the suspect in conflict with the needs of society. To show the cultural move towards the use of torture I explore developments in criminal procedure law and theory in the United States, prior to the attacks of Sept. 11, 2001. In particular, I evaluate challenges to the validity of Miranda v. Arizona in the realms of caselaw as well as scholarly legal debate. I compare arguments and concerns reflected in this debate to those expressed in the debate over the use of "aggressive interrogation techniques" in post Sept. 11th counterterrorism efforts. I argue that this evaluation shows an ambivalence towards the use of torture that predates the Sept. 11th attacks. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper is concerned with examining the difference between law and education as ways of looking at the world. However, neither law nor education represents a single perspective from which to see, think or do. A plurality of legal and educational theories competes to capture our imaginations. One identifies something as law based on the something one already identifies law as. The same goes for education. Historical knowledge, societal and personal, undermines all claims to identify the exclusive form law or learning may take. Therefore, in this paper I wish to compare and contrast the respective conceptions of law and education that critical legal pluralist theory and student-centred learning theory advance. Each envisions its proper discipline as projects fundamentally concerned with enabling creative human agency, or, in the words of Lon Fuller, facilitating human beings' "freedom to". At the same time, I acknowledge that it is possible also to recast both law and learning as, at bottom, relating instead to "freedom from". While many would assert that law leans more towards "freedom from" camp, whereas learning lends itself more to "freedom to" camp, I argue that categorizing law and learning along these dichotomous lines represents an unnecessary, indeed harmful, over-simplification. Demonstrating ways to think of law as education, and education as law, I aim to show, not law and education's interchangeability but rather their translatability. Moreover, with particular reference to the secondary school setting, I will trace how differences between law and education slide between matters of purpose and form. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the way two federal systems, the EU and Canada, have undergone a shift to the rights model of disability in their approaches to social policy. It examines how the shift to a rights-model occurred in different ways, from a largely top-down process in the EU and largely bottom-up process in Canada, but resulted in comparable constitutional protections from discrimination. Focusing on disability is useful because, in comparison to other forms of anti-discrimination rights, disability rights would seem to constitute an unlikely (if not 'least likely') case. The paper will consider the implications the shift in the disability policy paradigm has for the spread of 'adversarial legalism' as a form of governance across the developed world. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines women's entry and advancement within French Canada's civil law tradition of a dual system of notaires and avocats within law practice. The two arms of the profession have developed along exclusive legal jurisdictions codified through law, contrasting professional structures, and separate content and styles of legal practice. Yet, this divisive profession shares a common foundation through law school and professional training, and their respective practices of law occasionally overlap and conflict in the competition for clientele, services, and professional status. Women have entered law practice in Quebec at a critical juncture in the transformation of the legal profession, and their entry coincides with the emergence of exclusionary processes both within and across these two corporations of law practitioners. The paper reports findings from a large-scale survey and a smaller sample of in depth interviews with both women avocates and notaires in Quebec. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the current law and geography thoughts through Indigenous lenses and in doing so sees value in turning the gaze from the trouble with wilderness to the trouble with space. Space is a term loaded with colonial connotations. It was used in countries such as Canada, Australia and New Zealand to displace Indigenous peoples. The legal systems of these countries devised the terra nullius doctrine to consolidate the myth that colonists 'discovered' and 'made' place. This paper case-studies lands overlaid with national park labels to query what it ought to mean for place if in law and society we accept that these are unsound fictions? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines the way in which the Quebecois writer and film director Denys Arcand explores the themes of truth and justice in three of his films: Déclin de L'empire Américain, 1986; Jésus de Montréal, 1989; and Les Invasions Barbares, 2003. The paper discusses the way in which Arcand presents questions about truth, equality and social justice both in the context of interpersonal relationships, and in the context of the relationshp between the indivdual, the state, and the community. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines the role played by rule of law norms in contemporary Canadian church sanctuary incidents. These incidents generally involve unsuccessful refugee claimants who assert that their claims were denied in error. To avoid imminent deportation, sanctuary seekers request permission from faith-based communities to reside indefinitely within church buildings. Because the state is reluctant to undertake law enforcement activities within church buildings, sanctuary usually results in de facto stays of deportation. Faith-based communities offering sanctuary then seek to negotiate long-term solutions with immigration officials, often leading to discretionary grants of Canadian permanent residence. In this paper, I argue that Canadian church sanctuary practices can be understood as interventions by faith-based communities to correct errors emerging from a procedurally flawed official refugee determination system. I suggest that these interventions offer a legal pluralist model for effective civil society challenges to "legally exceptional" state border control governance -- i.e. governance that departs from regular rule of law norms. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper does three things. First, it provides a typology and brief assessment of four varieties of international law scholarship: formalist/doctrinal, normative/activist, theoretical/analytical, and empirical. Second, it develops an argument about the particular importance of empirical work from a "new legal realist" orientation. The paper contends that the distinctive features of a new legal realist approach are its commitment to empirical work, in particular of a qualitative nature, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. This translation takes two forms. First, we need to show how abstract law is translated in different institutional environments (a key empirical endeavor in a new legal realist agenda). Second, we need to provide such empirical information within an analytic framework which is useful for decision-makers who must apply these findings in light of the fact that all institutional alternatives are imperfect and thus legal texts will always be translated in different ways through different institutional applications. The paper situates "new legal realism" in relation to both the original legal realist movement in the United States and the predominant theoretical/analytical perspectives on international law that have emerged. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper aims to demonstrate that the modern notion of politics has been developed in a determined space, the nation-state, which engenders wider political participation and the achievement and defense of rights. Economic globalization has produced the growth of global commerce, turning transnational companies into powerful antagonists facing the power of the State by implementing a new international division of work that spreads production to several countries. Neoliberalism, as the globalization operator, conceives a miniaturization of the State, preconizing the reduction of its role in favor of the market producing a gradual erosion of sovereignty, the obsolescence of national boundaries, and, retraction of the public sphere in favor of the market and the loss of the citizen's political rights. This paper proposes the following thesis: the notion of politics loses its reference of manifestation in a territory-defined political space by transcending the boundaries of the nation-state, for instance, in globalization; and, it can be deduced that a considerable decrease in political participation happened, thus, occasioning a loss in the political stage of a privileged locus to conquer, defend and exercise the rights that progressively fade. This new scenario has generated negative consequences in both the political and legal environment, such as the loss of political power of the State, implying the separation of the citizens from the deciding center, the weakness of the local power, the political apathy, the emptiness of the political debate, and, social exclusion, negatively compromising the political-legal levels of participation. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The purpose of this paper is to compare and contrast the development of performance assessment of judicial and executive institutions. Several organizing questions shall be addressed. What are the origins of the performance movement in each of these two sectors? What are their similarities and differences in the course of direction the early contributors charted? Do the two areas of enquiry look alike in their theoretical foundations, comparative perspectives, methodologies and and kinds of conclusions to be drawn? Are there any lessons the study of judicial and legal performance might learn from the larger examination of executive institutional performance? And in what ways is judicial performance connected to the broader issue of the changing role of legal institutions in modern society? By addressing these questions, the paper seeks to clarify the kind of payoffs to be expected from the pursuit of performance assessment of legal institutions and how the possible payoffs might be enhanced. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]