Past Issue Highlights
Check out the following articles from our Fall 2014 issue, Volume 39.4.
Is Alternative Dispute Resolution a Good Alternative?
As authors Oren Gazal-Ayal and Ronen Perry note, alternative dispute resolution (ADR) has grown popular in recent decades by offering the choice between litigation and options such as mediation and settlement conferences. Some scholars have explored the advantages of ADR-- more satisfactory outcomes, reduced judicial caseloads-- while others have noted its disadvantages, like disparities between wealthier and poorer plaintiffs due to unequal access to resources. Gazal-Ayal and Perry aim to find the middle ground between these sets of scholarly opinions by empirically examining representation patterns and dispute resolution methods in their article "Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes." They use small claims settlement conferences in Israeli labor courts as a case study to find that representation increases the success of a settlement conference but reduces the ratio between sums obtained and claimed by plaintiffs. Additionally, they find that a greater formality of process leads to a greater ratio between sums obtained and claimed. Read more here.
For more in LSI on ADR and mediation, please see "Internal Contradictions of Judicial Mediation in China" (Ng and He, 39.2) and "Current Illusions and Delusions about Conflict Management-- In Africa and Elsewhere" (Nader and Grande, 27.3).
China's Courts and Constitutional Bodies: Hawks, or Doves?
Eric Ip utilizes the Hawk/Dove paradigm to analyze the interactions between the Hong Kong Court of Final Appeal (CFA) and the National People's Congress Standing Committee (NPCSC) in his article "Constitutional Competition Between the Hong Kong Court of Final Appeal and the Chinese National People's Congress Standing Committee: A Game Theory Perspective." Although the CFA has the ability to invalidate unconstitutional laws and executive decisions in Hong Kong, its legitimacy to do so has been questioned, leading scholars to wonder why the NPCSC, as the principal interpreters of China's Basic Law, does not limit the scope of the CFA. Ip argues that the two constitutional bodies have been able to co-exist relatively peacefully despite differing legal perspectives results from shifting aggressive (Hawk) and passive (Dove) strategies deployed from one toward the other. He theorizes that this occurs because of the desire of both to avoid constitutional crises and related this interplay to development in the larger field of comparative judicial politics. Read more here.
For more in LSI on game theory, please see "Interdisciplinary Gap Filling: Game Theory and the Law" (Talley, 22.4) and "Game Theory, Procedure, and Consent: Focusing on Fair Division" (Stinchcombe, 22.4).
Stability Through Law: A Look at Social Protests in China
In his article, "Maintaining Stability by Law: Protest-Supported Housing Demolition Litigation and Social Change in China," Xin He cites Chinese social protest movements against housing developers as an example of how authoritarian regimes utilize courts and the rule of law to consolidate their rules and maintain social stability. He reveals that 180,00 collective actions taken in China in 2010 were directly related to displacement caused by forced eviction, and 70 percent of the 1,730 petitions presented in 2002 to the Ministry of Construction were due to housing demolition. Protestors have turned to litigation as a form of resistance against housing policies, creating pressure for Chinese courts to reinforce governance while also serving as an open space for activists to mobilize. Through court documents and interviews with judges and officials, He determined that while Chinese courts generally favor housing developers in settlements to prevent further litigation and maintain social order, they have also employed strategies to limit the behavior of housing authorities to appeal to social movement groups. Read more here.
For more in LSI on Chinese courts, please see "The 'Production' of Corruption in China's Courts: Judicial Politics and Decision Making in a One-Party State" (Li, 37.4) and "Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court" (Liu, 31.1).
Two Claims to One Land: The Slippery Slope of Land Reparations
Gregory Alexander begins his article "The Complexities of Land Reparations" with a narrative of a customer getting a ring appraised by a jeweler. If the jeweler refuses to return the ring rightfully owned by the customer, the law is clearly on the side of the customer. However, if the jeweler not only refuses to return the ring but also sells it to another customer who is not aware of its true ownership, the situation becomes more difficult to assess. Alexander uses this analogy as a springboard to discuss the complexities of land reparations in areas such as South Africa and Gaza. He argues that while the full return of property and land to dispossessed populations presents itself as the most fair and just answer, there are a number of factors that complicate this process and call for alternative solutions to be sought and agreed upon by the two innocent parities. Alexander's article aims to summarize the claims that are unique to land reparations, to prove that problems facing land reparations and problems with reparations in general should be discussed separately, and to make a case for a skeptical outlook toward backward-looking reparations in all cases. Read more here.
For more in LSI on reparations, please see "Colonial Traditions, Co-optations, and Mi'kmaq Legal Consciousness" (McMillan, 36.1) and "'There Is Something in The Water': Race, Nationalism, and Legal Violence" (Murdocca, 35.2).
Are Fraternity Members "Complicit in Their Own Demise?"
As Gregory Parks, Rashawn Ray, Shayne Jones, and Matthew Hughey state, Black Greek Letter Organizations (BGLOs) are forces in the battle for civil rights and social justice and offer an intriguing site to investigate ideas of masculinity within African American culture. However, hazing among fraternity brothers and sorority sisters and its violent consequences have become an increasingly high-profile issue facing BGLOs. In "Complicit in Their Own Demise?" Parks et al. provide narrative accounts of multiple victims of fraternity hazing to analyze questions of consent regarding hazing and how these ideas of consent translate into the legal sphere. They examine elements of BGLO culture such as chants, greetings, and songs that describe acts of hazing to determine whether or not pledges participating in articulating them understand the potential risks of membership. They question whether or not this understanding translates into the legal sphere into an assumption of risk/contributory negligence in the context of tort defense. Read more here.
For more in LSI on torts and assumption of risk, please see "Distributive Justice through Tort (and Why Sociolegal Scholars Should Care" (Bernstein, 35.4) and "Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States" (McCann, 38.2).
Lemon Laws and Private vs. Public Dispute Resolution: What Happens When an Automobile's Performance Goes Sour?
Shauhin Talesh conducted a quantitative coding and qualitative analysis of twenty-five years of legislative history of consumer warranty and lemon law for his article "Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation." He compares the case of California, one of the states to adopt state consumer warranty laws, with that of Vermont, whose own system developed later in the 1980s. California's laws required consumers to use private resolution systems that afforded fewer consumer rights compared to the state-run systems adopted by Vermont that allowed for both private resolution and public contestation in courts. Talesh compares the two sets of consumer rights laws-- as well as the influence of outside players such as stakeholders, automotive dealers, manufacturers, consumer advocates, and state attorney generals-- to determine the conditions under which business and managerial approaches to law have an effect on the meaning of public legal rights. Read more here.
For more in LSI on law, business and institutions, please see "Competing Normative Frameworks and the Limits of Deterrence Theory: Comments on Baker and Griffith's Ensuring Corporate Misconduct" (Short, 38.2) and "'Funding the Cause: How Public Interest Law Organizations Fund Their Activities and Why it Matters for Social Change" (Albiston and Nielsen, 39.1).
Taking Deterrence Offshore: Australia's Asylum Seekers
In a continuation of the 39.3 LSI symposium "The Negotiated Expansion of Immigrant Control," Sharon Pickering and Leanne Weber study the unique issues facing migrants in Australia in their article "New Deterrence Scripts in Australia's Rejuvenated Offshore Detention Regime for Asylum Seekers." In recent years Australia has experienced an influx in boat arrivals, a phenomenon that has led to overcrowding in detention centers and unfortunate incidents of drowning among asylum seekers. In response, Australian authorities returned to using offshore detention centers in Nauru and Papua New Guinea to hold migrants while launching a media campaign surrounding its new policies. Pickering and Weber analyze the ninety eight media releases from representatives of Australia's major political parties-- the Labor Minister for Immigration, the Liberal Shadow Minister for Immigration, and the Green Spokesperson on Immigration-- from August 13 to December 15,2012 and determine that the rhetoric of the statements fall into three distinct "scripts" that the authors label "neoliberal deterrence," "classical deterrence," and "ethic of care." Read more here.
For more in LSI on immigration, please see other articles in the "Negotiation Expansion of Immigrant Control" Symposium (39.3).
Law as "Genre:" Legal Studies and Literature
Anat Rosenberg reviews Ayalet Ben Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (Oxford UP 2013) in her essay "The History of Genres: Reaching for Reality in Law and Literature" and uses the former's discussion of the differentiations between law and literature as a starting point to make her own claims about viewing law as a genre. Rosenberg conceptualizes law as a genre because it deals with society and human experience and has distinct narrative forms that articulate its understanding of that experience. She argues that while the macrocosmic relationship between law and society is important within legal scholarship, thinking of law as a genre illuminates the idea of law as a historical formation. Rosenberg examines texts from Victorian literature and how they relate to laws of that time to explore differing approaches to probabilistic knowledge and author functions, influences in evidence-law and contract-law scholarship (particularly regarding notions of autonomy), and how the idea of "thinking like a lawyer" has grown. Read more here.
For more in LSI on law and the humanities, please see "Scenes of Execution: Spectatorship, Political Responsibility, and State Killing in American Film" (Sarat et al., 39.3) and "Magical Thinking in Trademark Law" (Assaf, 37.3).