Current LSR Issue


December 2021


Health Insurance Rights and Access to Health Care for Trans People: The Social Construction of Medical Necessity


Anna Kirkland, Shauhin Talesh, Angela K. Perone


Health care rights for transgender and/or nonbinary people have dramatically expanded in recent years, including in insurance coverage for the treatments and procedures they need. Yet, trans people themselves still identify health insurance problems as a top priority for research and policy change because of significant difficulties gaining and using coverage. Wrangling over coverage determinations happens through multiple types of interactions, bureaucratic, interpersonal, and medical. When these interactions become difficult, it is because key terms such as medical necessity are both powerful and indeterminate. This study examines how trans people and health care intermediaries navigate the health insurance process and contest the meaning of medical necessity in coverage determinations. These disputes constitute the ground-level reality for instantiating health care rights to gender affirming care. Relying on analysis of contract language and 32 interviews with people who sought gender-affirming care and allied professionals, we find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for trans people who attempt to access care. Our study highlights how the contested life of insurance policy terminology produces a reality for rights but also details the mechanisms through which insurance-mediated care is a socially contested and negotiated process.

Between the Constitution and the Clinic: Formal and De Facto Rights to Healthcare


Carol A. Heimer, Arielle W. Tolman


In no domain of global health has there been more talk of rights than in HIV/AIDS, yet little is known about how the right to HIV/AIDS care is mobilized at the clinic level. Drawing on interviews and field observations in the United States, South Africa, Thailand, and Uganda, we analyze the legal consciousness of caregivers in five HIV clinics. We identify three organizational factors—clinics’ focus on the distribution rather than the adequacy of existing resources, the duties for caregivers that patients’ rights create, and the dominant norms of exchange in healthcare—that help to explain the low penetration of formal rights talk into clinics despite its prevalence outside them. However, we also observe that within clinics, rights may accrue differently than public discourse about rights might lead us to expect. We find that patients often benefit from highly localized, tacit de facto rights that develop gradually over time with the support of state health infrastructure, clinic resources, and professional norms and commitments. These rights would be unlikely to stand up in a court of law but nevertheless have substantial impact on patients’ access to care.

Coercion Versus Facilitation: Context and the Implementation of Anti-FGM/C law


Agnes Meroka-Mutua, Daniel Mwanga, Susan L. Ostermann, Joséphine Wouango


A common policy response to female genital mutilation/cutting (“FGM/C”) is the enactment of criminal prohibitions. The implementation of such prohibitions requires significant state capacity, which is often associated with the coercion. We examine compliance with anti-FGM/C law in Burkina Faso and Kenya, two countries which are thought to have markedly different state capacity and where the practice of FGM/C has been widespread. Using a hard-case comparison and both qualitative and quantitative approaches, including a list experiment to elicit accurate responses regarding the current state of FGM/C practice, we find that Burkina Faso and Kenya have achieved comparatively similar compliance with their respective anti-FGM/C laws. We explain this surprising finding by pointing to the different implementation approaches taken by each state, one coercive and one facilitative, and the degree to which those approaches were well-matched to the attitudes of their respective populations. This paired comparison suggests that coercively weak states may still be able to secure compliance with their laws. It also suggests that academics and policymakers alike should consider the numerous other capacities states possess beyond simple coercion.

Women’s Law-Making and Contestations of “Marriage” in African Conflict Situations


Annie Bunting, Heather Tasker, Emily Lockhart


International criminal law has developed significantly over the past 20 years since the establishment of the ad hoc Tribunals and International Criminal Court. Much scholarly attention has focused on the politics and jurisprudence of these courts, with particular focus on the prosecution of sexual and gender-based violence. This article adds to the literature with comparative, qualitative research with survivors of conflict-related forced marriage in Liberia, Sierra Leone, and Uganda, revealing context-specific understandings of marriage, consent and harm. We argue women exercise “tactic agency” in captivity in ways that are, taken together, “law-making” in their contestations over the socio-legal categories of marriage. Their contestations of marriage impact the norms within rebel groups as well as the development of new crimes against humanity in international criminal law. Building on the empirical findings, we argue that prosecution of crimes against humanity and reparation programs ought to be flexible and responsive enough to capture the varied experiences of women and girls abducted in war for purposes of sexual exploitation.

Represented but Unequal: The Contingent Effect of Legal Representation in Removal Proceedings


Emily Ryo, Ian Peacock


Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.

The Chief Justice Versus the Iconoclast: Popular Constitutionalism and Support for Using “Sociological Gobbledygook” in Legal Decisions


Benjamin W. Woodson, Christopher M. Parker


Conventional wisdom assumes that the public wants judges that will simply interpret and apply the law as it is written. However, existing evidence shows a substantial portion of the American population supports the doctrine of popular constitutionalism. Using two experiments involving the use of social science in legal decisions, we show that popular constitutionalists evaluate the judiciary using a different set of criteria than legal traditionalists. For legal traditionalists, using social science in legal decisions is perceived as an undesirable nonlegal influence and reduces acceptance of a court decision. For popular constitutionalists, social science is perceived as objective evidence that can be used to understand the practical effects of a decision and increases acceptance. We conclude by discussing the need for more research on popular constitutionalists, as little is known about how this group evaluates the judiciary and interprets its actions.

Book Reviews

Free justice: A history of the public defender in twentieth-century America. By Mayeux, Sara. Chapel Hill, NC: University of North Carolina Press, 2020. 286 pp. $26.95 paperback


Kate Levine

Pragmatism, logic and law. By Kellogg, Frederick. Washington, DC: Lexington Books, 2020. 204 pp. $45.00 paperback


Charles Barzun

Autopsy of a crime lab: Exposing the flaws in forensics. By Garrett, Brandon L.. Oakland: University of California Press, 2021. 264 pp. $29.95 hardcover


Simon A. Cole

The Neoliberal Republic: Corporate lawyers, statecraft, and the making of public-private France. By France, Pierre and Vauchez, Antoine. Ithaca, NY: Cornell University Press, 2021. 269 pp. $21.95 paperback


Gaëtan Cliquennois

The death penalty and sex murder in Canadian history. By Strange, Carolyn. Toronto: University of Toronto Press, 2020. 381 pp. $60 hardcover


Lisa Kerr


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