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Article

There is a growing body of research on law and policy concerning lesbian, gay, bisexual, transgender, and queer (LGBTQ) family law and policy. LGBTQ families have existed for centuries despite laws and policies that criminalize their relational practices. However, the legal landscape has shifted a great deal over the past few decades, in large part due to the increased visibility of LGBTQ kinship networks and new constitutional protections for same-sex marriage. With this said, legal protections for LGBTQ families vary widely by state, especially parental, adoption, and foster care rights. Historically, family law and policy has fallen within the realm of state power, with some important exceptions (e.g., the Supreme Court has recognized a fundamental right to parent for legal parents). For this reason, there are broad protections afforded to LGBTQ kinship networks in some states, especially those with large urban and more liberal populations, and barriers that stand in the way of LGBTQ parental rights in other states that are more conservative or rural. The legalization of marriage equality in Obergefell v. Hodges did standardize some protections for same-sex couples in traditional relationships across the United States. Yet the case also presents new problems both for LGBTQ families that are more heteronormative and those that are not because it fails to recognize a fundamental right to parent for LGBTQ people who create non-biological families and live non-traditional lives. In addition to these legal and policy changes, social scientists have used both qualitative and quantitative methodologies to shed light on the problems faced by LGBTQ families politically and legally. Researchers have examined how LGBTQ families attempt to protect their ability to parent in family court, how LGBTQ kinship networks identify innovative legal and political strategies aimed at overcoming barriers to legal recognition, and how LGBTQ identity is both constituted and made invisible through family law. Furthermore, scholars have produced a wealth of research refuting the myth that LGBTQ people are inadequate parents since the late 1980s and this research has been used in court cases across the United States to facilitate the legal recognition of LGBTQ families. Despite this research, gaps in both scholarship and legal recognition remain. Scholarship remains startlingly sparse given the legal and political barriers that stand in the way of LGBTQ family recognition, especially for LGBTQ people of color and trans and queer people. In order to address this gap, scholars should devote more resources to research on families that include LGBTQ people of color and trans and queer people, research on non-traditional queer kinship networks, and research on the unique ways that LGBTQ families are responding to political and legal barriers at the local level.

Article

Francis Kuriakose and Deepa Kylasam Iyer

The question of LGBT rights was first examined as part of gender and sexuality studies in the 1980s, predominantly in the United States. This was a result of the LGBT movement that had articulated the demand for equal rights and freedom of sexual and gender minorities a decade before. Since then, the examination of LGBT rights has traversed multiple theoretical and methodological approaches and breached many disciplinary frontiers. Initially, gay and lesbian studies (GLS) emerged as an approach to understand the notion of LGBT identity using historical evidence. GLS emphasized the objectives of the LGBT movement in articulating its identity as an issue of minority rights within the ambit of litigation and case law. However, the definition of LGBT identity as a homogeneous and fixed category, and the conceptualization of equality rights as the ultimate project of emancipation, was critiqued on grounds of its normative and assimilationist tendencies. Queer theory emerged in the 1990s as a counter-discourse to GLS, using the individual-centric postmodern technique of deconstruction as the method of analysis. This approach opened up scope for multiple identities within the LGBT community to articulate their positionality, and reclaim the possibilities of sexual liberation that GLS had previously obscured. Subsequent scholarship has critiqued GLS and queer theory for incomplete theorization and inadequate representation, based on four types of counter-argument. The first argument is that queer theory, with its emphasis on self as an alternative for wider social interaction, concealed constitutive macrostructures such as neoliberal capitalism, as well as the social basis of identity and power relations. The second argument highlights the incomplete theorization of bisexual and transgender identities within the LGBT community. For example, understanding bisexuality involves questioning the universalism of monosexuality and postmodern notions of linear sexuality, and acknowledging the possibility of an integrated axis of gender and sexuality. Theorization of transgender and transsexual rights requires a grounded approach incorporating new variables such as work and violence in the historiography of transgender life. The third critique comes from decolonial scholarship that argues that intersectionality of race, gender, class, caste, and nationality brings out multiple concerns of social justice that have been rendered invisible by existing theory. The fourth critique emerged from family studies and clinical psychology, that used queer theory to ask questions about definitions of all family structures outside the couple norm, including non-reproductive heterosexuality, polyamorous relationships, and non-marital sexual unions. These critiques have allowed new questions to emerge as part of LGBT rights within the existing traditions, and enabled the question of LGBT rights to be considered across new disciplinary fronts. For example, the incorporation of the “queer” variable in hitherto technical disciplines such as economics, finance, and management is a development of the early-21st-century scholarship. In particular, the introduction of LGBT rights in economics to expand human capabilities has policy implications as it widens and mainstreams access of opportunities for LGBT communities through consumption, trade, education, employment, and social benefits, thereby expanding the actualization of LGBT rights.

Article

Jacques Ziller

The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.

Article

Ramūnas Vilpišauskas

For Lithuania, the geopolitical motive to join the European Union (EU) in order to prevent a repetition of the 1940s occupation has been as important as a motive to “return to Europe.” This motivation to become part of the West led the country’s political elites to conceptualize accession into the EU as an important part of the transition reforms which were expected to modernize Lithuania’s economy, public administration, and governance as well as contribute to the country’s security and create conditions for economic catching up. Membership in the EU, accession into NATO, and good neighborly relations became the three cornerstones of Lithuania’s foreign policy since the early 1990s and enjoyed broad political support. It was this support that arguably allowed for the maintenance of political and administrative mobilization and consistency of preparations for the membership during the pre-accession process. Public support for the EU membership remained above the EU average since accession in 2004. Around the time of accession, a new concept of Lithuania as “a regional leader” was formulated by the core of the nation’s foreign policy makers. The concept of a regional leader implied active efforts of mediating between Eastern neighbors and the EU, often in coordination with Poland, which was driven by the desire to stabilize the Eastern neighborhood and advance relations between Eastern neighbors and the EU and NATO. Although coalition building within the EU has been fluctuating between a strategic partnership with Poland and Baltic-Nordic cooperation, also most recently the New Hanseatic league, attention to the Eastern neighborhood and geopolitical concerns originating from perceived aggressive Russian policies remained a defining characteristic of the country’s European policy independent of personalities and political parties, which have been at the forefront of policy making. Completion of integration into the EU, in particular in the fields of energy and transport, as well as dealing with “leftovers” from accession into the EU, such as joining the Schengen area and the euro zone, became the other priorities since 2004. Lithuania has been one of the fastest converging countries in the EU in terms of GDP per capita since its accession. However, membership in the EU Single Market also had controversial side effects. Relatively large flows of emigrants to other EU member states generated political debates about the quality of governance in Lithuania and its long-term demographic trends such as a decreasing and aging population. Introduction of the euro in 2015 was perceived by the public as the main factor behind price rises, making inflation the most important public issue in 2016–2018. High per capita income growth rates as well as the prospect of the United Kingdom exiting the EU triggered discussions about excessive dependency on EU funding, the potential effects of its decline after 2020, and sources of economic growth. There are increasingly divergent opinions regarding further deepening of integration within the EU, especially in regard to alignment of member states’ foreign and security policies as well as tax harmonization. Still, membership in the EU is rarely questioned, even by those who oppose further integration and advocate a “Europe of nations.”

Article

Discrimination against transgender or gender nonconforming individuals in the workplace affects hiring, firing, promotions, salaries, and benefits. Most states have no laws prohibiting employment discrimination based on gender identity, and, in the absence of federal law, transgender workers have turned to the courts to seek equal rights on the job. Transgender plaintiffs often file suit under Title VII of the 1964 Civil Rights Act, the law prohibiting sex discrimination in employment. The defendants argue that since the statute does not explicitly ban discrimination on the basis of gender identity, Congress did not intend to include transgender or gender nonconforming individuals as members of a class protected by Title VII. The cases revolve around the question of whether the ban on sex discrimination in the law should be narrowly construed to apply to men and women as determined by their biological status or whether it should be broadly construed to prohibit discrimination against individuals because of their gender identity or gender expression. Prior to 1989, suits brought by transgender plaintiffs were dismissed by judges who agreed with employers that Congress did not intend Title VII to guarantee their employment rights. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that the statute forbids an employer from making a negative employment decision because an employee’s behavior does not conform to stereotypical norms of behavior. Hopkins set the stage for the next several decades of litigation over the employment rights of transgender employees, and, although the courts were initially reluctant to allow transgender plaintiffs to benefit from Title VII, within a few years, most broadened their interpretation of the law. Over time, the courts adopted two theories: first, the gender nonconformity approach in which discrimination based on sex stereotyping violates Title VII; second, the per se approach in which discrimination on the basis of gender identity is equated with discrimination under Title VII. In 2012, the Equal Employment Opportunity Commission (EEOC) adopted both theories of Title VII in Macy v. Holder (2012). In 2014, the Justice Department formally committed itself to interpreting Title VII to apply to gender identity. In October 2017, the department shifted its position on Title VII, negating the per se theory of gender identity and emphasizing that the statute only applies to employer actions based on biological differences between men and women. In addition to Title VII claims, transgender plaintiffs have filed job discrimination actions under the Americans with Disabilities Act (ADA), the law prohibiting discrimination against individuals because of their disabilities. Although the statute explicitly excludes gender identity disorder, two federal district courts have interpreted it to cover transgender persons with disabilities, with a third disagreeing. Tying claims to the ADA has benefits as well as drawbacks.

Article

Helma G. E. de Vries-Jordan

Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.

Article

S.J. Cooper-Knock

Studies of policing go to the heart of debates over public authority, violence, and order. Across the globe, the state cannot be assumed to be at the center of policing practices or their authorization. Across Africa, a diverse mix of individuals, groups, and corporations are involved in policing people’s everyday lives and the spaces in which they live them. Categorizing the different groups and individuals in this varied landscape is no simple task. Even drawing lines between “state” and “non-state” policing is not as easy as it may first appear. In reality, any constructed boundary is likely to be more porous and fluid than imagined. In some cases, this is because the service providers become entangled with the state. State officials, for example, may moonlight for other policing organizations. Conversely, state institutions might collaborate with, or outsource work to, civilian and corporate actors. In other cases, groups who identify as non-state actors may still mimic the symbols, materials and practices of the state in an attempt to bolster their own claims to public authority. Faced with the difficulty of sustaining any simple divide between categories such as “state” or “non-state” policing scholars have taken a variety of analytical routes: refining their definitions; developing “ideal types” against which messy empirical realities can be juxtaposed, or moving away from bounded typologies in an attempt to understand group and individuals on their own terms. Taking the latter course, this article highlights the variety of putatively non-state policing organizations and formations across the continent. In doing so, it highlights that the presence of private security corporations, rebel groups, neighbourhood watches, or so-called mobs are no simple indicator of the absence or weakness of state institutions and imaginaries. Understanding everyday negotiations over statehood and sovereignty requires a more nuanced approach. When this path is taken, and policing landscapes are studied in all their complexity, we gain crucial insights into the ways in which being and belonging, law and order, power and legitimacy, privilege and oppression function in any given context.

Article

Nathan C. Walker

A society’s political and legal treatment of religion is a distinct indicator of the health of a democracy. Consequently, high levels of political and legal contempt for religion in the United States can be an indicator that partners in American democracy may be going through a divorce. By drawing upon studies that measure voter attitudes and behaviors, as well as research that tracks the levels of social hostilities and violence toward religion, students of democracy see into two of society’s most revealing mirrors: political rhetoric and the nation’s laws. These reflections can unveil powerful questions about the true character of a nation: will democracy rule from a place of contempt for the religious other, or from a state of passive political tolerance, or from a constitutional commitment to actively protect the rights of those with whom we disagree? Theories of political tolerance and psychological studies of contempt prove helpful in examining contemporary levels of religious animosity in politics and law. The Religious Contempt Scale, as introduced in this essay, gauges a society’s willingness to tolerate the religious other. When special attention is given to the frequency and degrees of severity of expressions of contempt, it becomes clear that contempt has political utility: to motivate the intolerant to gain access to power and, in turn, to motivate those who are intolerant of intolerance to remove them.

Article

Russell H. Kaschula and Michael M. Kretzer

Language policies in sub-Saharan African nations emerge out of specific political, historical, socioeconomic, and linguistic conditions. Education plays a crucial role for all spheres of language policy. Policies either upgrade or downgrade indigenous languages through their application at various educational institutions. The most significant example is the selection of the language(s) used as languages of learning and teaching at higher-education institutions. The region’s colonial history also influences the language policies of the independent African states. Language policy in Senegal is an example of a francophone country focusing on a linguistic assimilation policy in which minor reforms in favor of indigenous languages have taken place. Rwanda’s language policy is unique as the former francophone nation now uses English as an exoglossic language in a type of hybrid language policy. Botswana is an example of an anglophone country that follows a language policy that is dominated by a very close connection to the notion of nation-building through its concentration on a single language, Setswana, alongside English. Tanzania is an anglophone African country whose policy focuses on Kiswahili, which is one of the very few indigenous and endoglossic languages. Kiswahili is broadly used in Tanzanian educational institutions until the tertiary level, but its use as medium of instruction focuses on the primary level. South Africa demonstrates the very close relationship between general political decisions and language policy and vice versa. Language policy decisions are never neutral and are influenced by the politics of a specific country. As a result, individual and societal language attitudes influence language policies. In addition to this, the overt and official language policy on a macro level may differ from the implementation of such policies on a micro level. At the micro level, practice can include covert language practices by various stakeholders.

Article

Over the past decades, prosecutors have become more and more powerful within criminal justice systems. Yet, there is still relatively little empirical research on prosecutors. Most of the literature focuses on the analysis of the prosecutorial system of a single country. Cross-country analyses are close to nonexistent. From a comparative perspective, the various possible means to establish the independence of prosecutors from government and at the same time securing their accountability to the law are of paramount interest. Regarding the former, appointment procedures, possible career paths, and the degree to which prosecutors are subject to orders both from within the prosecution agency as well as from without (e.g., the ministry of justice) are of special concern. With regard to prosecutorial accountability, it is the legality principle (also known as mandatory prosecution), the issue whether prosecutors enjoy a monopoly in the prosecution of criminals, whether decisions not to prosecute a suspect are subject to judicial review, and the transparency of the behavior of prosecutors that are key. Regarding the organizational design choices of prosecution agencies that have been implemented across countries, four different clusters can be identified. The four clusters perform markedly different in terms of the rule of law levels associated with them. The consequences of institutional design choices are surprisingly small. The de facto organization of prosecutors turns out to be far more relevant for outcomes than what is prescribed de jure. Countries in which prosecutors enjoy a high degree of de facto independence suffer significantly less from corruption than countries in which this is not the case. Given that the institutional design choices of prosecutors are of limited relevance for their de facto situation, the question is: What factors determine the de facto independence and accountability of prosecutors? It turns out that some rather stable and immutable factors are decisive: Common law legal systems do better than those belonging to the civil law legal families. Generalized trust also plays an important role. If most people believe that others can be trusted, very specific rules for the behavior of prosecutors may seem unnecessary. A number of trends regarding the organization of prosecutors can be observed in many countries, among them the increased reliance on trial waiver systems, bonus payments to incentivize prosecutors, the founding of prosecutorial councils, and prosecutorial activism. It is questionable whether the first three of these trends will increase the efficiency of prosecution agencies; rather, they are likely to lead to a deterioration in the overall rule of law score of those countries relying on them.

Article

The publication of John Rawls’s Political Liberalism put public reason squarely on the agenda of contemporary political theory. Ever since, it has been a central topic in the field. Although Rawls developed a distinctive account of public reason, his account is but one among many. Indeed, some commentators have insisted that public reason is a very old notion, one that can be found in the political writings of Hobbes, Locke, Rousseau, and Kant, for example. Public reason has a distinctive subject matter. It applies to the common good of a modern political society and the political institutions that serve that common good, and it contrasts with forms of reasoning that apply to less inclusive associations and communities that exist within a modern political society, such as churches, voluntary clubs, or professional associations. Public reason also contrasts with applications of reason that are not transparent and/or acceptable to adult citizens of modern political societies. The demands of transparency and acceptability have proven to be complex and contentious, and rival articulations of these notions have generated rival accounts of public reason. Public reason informs public political justification, and proponents of public reason often hold that public, political justification of at least the fundamental political arrangements of a political society is necessary for its political order to be legitimate. The reasons for insisting on public reason and the reasons for rejecting it are diverse. Common to all defenses of public reason is the thought that it represents a fitting response to the fact of intractable disagreement in modern political societies.

Article

Kristina M. Teater and Laura Dudley Jenkins

Freedom of religion is a constitutional right in India, but this religiously diverse democracy regulates religion in several ways, including enforcing religious personal laws, regulating religious minority educational institutions, monitoring conversions, limiting religious appeals during political campaigns, and outlawing acts that outrage religious feelings. The 42nd constitutional amendment in 1976 added the word “secular” to the Indian constitution, which provides a distinctive model of religion-state relations and regulation that is rooted in historical struggles with colonial rule and abundant religious diversity. The “personal law” system grants major religious communities distinct family laws. Religious minorities have regulated autonomy in the sphere of education based on constitutional commitments to minority colleges and educational institutions. The religious freedom clause in the Indian constitution is one of the most comprehensive in the world, yet several state-level “freedom of religion” acts prohibit “forcible” or “induced” conversions. Affirmative action or “reservation” policies also necessitate regulating conversions, as low castes lose their eligibility upon conversion to Islam or Christianity. Appealing for votes on the basis of religion or caste is a “corrupt practice.” A colonial-era statute continues to outlaw “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” Constitutional and state regulations of cow slaughter also protect the religious beliefs of some Hindus. Whether defending “religious freedom” by limiting conversions, or criminalizing insults to religious beliefs, laws in India to “protect” religions and religious persons at times threaten the practice and expression of diverse religious perspectives.

Article

Barbara A. McGraw and James T. Richardson

Although the United States Constitution presumably was designed to avoid “regulation” of religion, there is an interplay between religious individuals and private organizations, on the one hand, and the state, on the other hand, which has a regulatory effect on religion in some areas of public life. The First Amendment’s “Religious Clauses” prohibit an establishment of religion and preserve the right to free exercise of religion. An important area of contention and development in legislation and Supreme Court jurisprudence involves free exercise accommodations or exemptions to laws and rules that generally apply to everyone. These are particularly at issue in the workplace, in correctional institutions, and in the military. The latter two give rise to establishment issues, which have been resolved in favor of free exercise, as government support of religion has been held to be necessary to preserve the free exercise rights of inmates and service personnel. The enactment of the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) have led to a much greater deference to religious rights, resulting in accommodations that would not have been required under preexisting legislation and judicial interpretation. Another such area involves religious organizations themselves, in particular issues regarding tax-exempt status, land use, and faith-based initiatives. A provision in the tax code known as the Johnson Amendment, which restrains religious (and other tax-exempt organizations) from certain political activities, has been challenged recently as a limitation on free speech, however without success so far. Issues involving local government limitations on religious organizations’ land use through zoning restrictions are now being addressed more favorably for religious organizations through the land-use provisions of RLUIPA, although not without controversy. Faith-based initiatives have promoted religious organizations, or faith-based organizations (FBOs), as important government partners, which are eligible to receive public funds for the delivery of social services. Since the late 20th century, there has been a gradual, but significant shift toward greater respect for individuals’ and groups’ religious rights, especially reflected in recent legislation and Supreme Court decisions. Such trends suggest that, although religion has come into conflict with legal-policy developments in other areas, such as those involving gay marriage and contraception coverage, the right to practice one’s religion and participate in public endeavors alongside nonreligious individuals and groups, is likely to continue to expand for the foreseeable future.

Article

Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class. The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.

Article

Reparations are among the most tangible, victim-centric, and personal of processes in the transition from violence to peace, symbolizing the recognition that an individual has been harmed and has rights in the eyes of the state or international community. Reparations are also an inherently political project, transforming official visions of violence, responsibility, and victimization into material and psychological benefit. Despite the power of reparations to shape transitions from violence to peace, they have been too often ignored in practice, leaving most victims of gross violations of human rights and serious violations of international humanitarian law without reparation. Partly as a consequence, research has tended to focus more on “harder” processes, like trials and truth commissions, than on the “stepchild of postconflict justice.” Yet, there have been significant developments in reparations theory and practice that motivate key outstanding questions for researchers. Reparations derive their symbolic power from the law, which is an imperfect tool for responding to the varied forms of violence experienced in conflict and to the diverse, sometimes contradictory, priorities and needs that people hold. In such contexts, there is an inherent tension between expanding reparations programs to be inclusive and adaptable and preserving their fundamental distinction as a justice process. This is a difficult balance to strike, but there are frameworks and questions that can offer useful guidance. In particular, the lenses of economic violence and positive peace are useful for articulating the role of reparations in postconflict transitions, offering conceptual expansion beyond transitional justice’s traditional concern for political violence without delving too far into the customary terrain of development or postconflict reconstruction. Yet, the specific mechanisms through which the inward and outward feelings and attitudes and broader social changes that reparations are expected to produce remain undertheorized in transitional justice scholarship, in large part because of a lack of empirical evidence about how recipients experience them in practice. Does the restoration of civic trust, for example, depend upon recipients of individual reparations telling their neighbors about their payments? Does recognition as a citizen depend upon a beneficiary publicly self-identifying as a victim? Questions like these about the particular variables that drive reparations outcomes represent the next frontier for transitional justice researchers interested in the role of reparations in the transition from violence to peace.

Article

Steve Peers

Abolition of internal border controls—with corresponding harmonization of external border controls and other relevant policies (short-term visas, freedom to travel, control of irregular migration)—has become a cornerstone of the European Union’s (EU) overall integration project, being linked also to harmonisation of asylum policy, external relations issues, and policing and criminal law cooperation, including the ongoing development and extension of justice and home affairs databases such as the Schengen Information System and the Visa Information System. However, the Schengen process has been frequently contested over the past decade, first of all in the context of the Arab Spring in 2011 and subsequently due to the perceived migration crisis of 2015–2016. The EU has responded with a combination of further integration (such as more funding, more harmonization, and more power for EU bodies) along with deference to Member States regarding re-imposing border checks in order to stop flows of asylum-seekers. It may be questioned how well this strategy will work in the long term, but in the medium term it has succeeded in keeping the Schengen policy afloat in this modified form. The research in this field has concentrated on whether the Schengen system has accomplished its objectives and the possible tension between the system and human rights and data protection standards, as well as the overlapping tensions between the attempts to develop a uniform policy at EU level and the divergences in implementation and policy priorities at national level, particularly at times of crisis or intense political debate.

Article

Sex reclassification is a core issue of gender nonconforming legal engagements. Access to proper identification documents for trans and nonbinary people relates to lower levels of exposure to anti-trans violence, discrimination, and suicidality. In the first decades of the 21st century, the majority of global jurisdictions have seen some kind of reform with respect to sex reclassification. Nonbinary classifications, such as the X marker, are also becoming available for those who wish not to be classified as either M or F. Across the globe, five major policy streams can be found: total ban on reclassification, that is, having no law or policy in place that allows for reclassification; reproduction-related prerequisite, that is, requiring applicants to undergo sterilization or genital-related surgery; other medical intervention-based schemes, that is, requiring applicants to provide proof that they have modified their body using some kind of gender-related medical technology; corroboration requirements, that is, requiring that a third party, usually a medical professional, corroborates the identity of the applicant; and the emerging “gold standard,” gender self-determination, that is, laws and policies requiring only an expression of a desire or need to be reclassified. These streams of policy provide varying levels of access to proper identification documents and place different burdens on applicants, some requiring bodily modifications while others rely on autonomous will. Yet all these policies still demand an alignment between the internal truth of the body and external facts, resonating with the logic of birth assignment of sex itself—that is, the idea that the allocation of differentiated legal status of M or F reflects an immutable truth about legal subjects. Current laws and policies fail to address harms caused to gender nonconforming people by state mechanisms themselves. They only provide remedies ex post facto. In the early 21st century, all countries assign a differentiated legal status of either M or F at birth based solely, in almost all cases, on external genitals of newborns. This differentiated legal status is recorded on the birth certificate and becomes a part of one’s legal identity for life. This allocation of status reflects the idea that external genitals of newborns are proof of their owners’ future roles as men or women, that is, an idea that there is a pre-legal alignment between certain bodily configurations, social role, and gender performance. This mundane administrative mechanism not only justifies different treatment for men and women but also marks trans and nonbinary people as others. In order to better address the harm caused by systems of gendered distribution of resources and opportunities, there is a need to go beyond sex reclassification to question birth assignment itself.

Article

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

Article

Suriname is a multiethnic society (from African, Asian, and European countries, and smaller contingents of the original indigenous peoples) formed in colonial times. After 1863, a small colonial army detachment with conscript Dutch soldiers was stationed in Suriname. The colony was provided autonomy in 1954, except for defense and foreign affairs. The same army detachment was now open for Surinamese noncommissioned officers (NCOs). Independence was obtained in 1975; the Dutch transferred all infrastructure of the colonial detachment. Suriname’s political culture was (and partially still is) based on ethnic belonging and clientelism. After independence, the government started spending big money and rumors of corruption arose. The NCOs, headed by Sergeant-Major Bouterse, staged a coup in 1980. They appointed a new civilian government but remained in control though a Military Council overseeing government. After two and a half years it generated a strong civilian opposition, supported by the students, the middle classes, and the trade unions. In December 1982, the military arrested the leaders and tortured and killed them. Between 1980 and 1987, Bouterse, now a colonel, was the de facto president as leader of the Military Council. The generally leftist but zig-zagging military government disrupted the economy. “Colombian entrepreneurs” assisted with financial support. Economic and political bankruptcy prompted the government to organize elections. The “old ethnic parties” won the election in 1987, but the army leadership remained in power. A second coup, in December 1991, was settled by general elections six months thereafter; the same ethnic parties returned to power. Armed opposition had emerged in the Maroon region. The Army, backed by paramilitary forces, organized a counterinsurgency campaign during several years of civil war. The civilian government brokered a preliminary peace agreement, but Army Chief Bouterse continued the war. Eventually the Organisation of American States mediated, resulting in a formal peace. Bouterse and his staff were discharged and became businessmen and politicians. Consecutive civilian government strongly curtailed military budgets, personnel, and equipment. Instead, they strengthened the police. In 2005, Bouterse participated in the elections with a pluriethnic political platform. His party became the largest one in parliament. He won the presidential elections in 2010 and was reelected in 2015. A Military Tribunal initiated a process against the actors of the December 1982 murders. In November 2019, the Tribunal convicted him of murder and sentenced him to 20 years in prison, without ordering his immediate arrest. The National Army, after decades of neglect, was reorganized. It is in fact an infantry battalion equipped with Brazilian armored vehicles. Brazil, Venezuela, and India supplied some assistance and training. The Coast Guard is part of the Army, as well as the Air Force which has a couple of Indian helicopters. Of the 137 countries ranked in military strength by Global Firepower (2019), Suriname is positioned at place 135. On the other hand, the country has no external enemies, although there exists a dormant frontier dispute with Guyana since the late 1960s.

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Subnational policymaking is central to LGBT politics and law, in contrast to other arenas of policymaking for marginalized groups. With barriers to national policymaking in Congress and in the federal courts, LGBT rights activists have leveraged opportunities at the state and local levels to create LGBT-supportive policies. Opponents have also used subnational politics to further their agenda, particularly direct democracy, while LGBT rights activists have used elite politics, such as state courts, effectively. Subnational LGBT politics is also marked by a significant variety in policy outcomes, with a notable urban and suburban versus rural divide in policymaking and in the presence of openly LGBT elected officials. The case of LGBT policy and law has caused scholars to rethink questions such as the role of public opinion in state policymaking, morality politics, and courts and social change.