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- Volume 19, 2023
Annual Review of Law and Social Science - Volume 19, 2023
Volume 19, 2023
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Whither Legitimacy? Legal Authority in the Twenty-First Century
Vol. 19 (2023), pp. 1–17More LessMy scholarly career has centered around articulating and testing a model of legitimacy-based law and governance. In recent decades, that model has achieved considerable success in shaping the way legal authority is understood and exercised. At the same time the legitimacy of legal, political, and social institutions and authorities has declined, raising questions about the future viability of a legitimacy-based model. In this review, I discuss the ascension and potential decline of legitimacy-based governance and outline alternative models of authority that may emerge in the twenty-first century. Three issues are addressed: whether there are ways to reinvigorate legitimacy-based law and governance; whether social norms, moral values, or ideologies are viable alternative forms of authority; and whether it is better to accept that no single form of authority works best in all situations and theories should focus on identifying the contingencies under which different forms of authority are most desirable.
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Civil Litigants’ Evaluations of Their Legal Experiences
Vol. 19 (2023), pp. 19–36More LessHow do litigants evaluate their experiences with the civil justice system? What we know about this important subject has grown out of foundational academic research in procedural justice and studies of litigant involvement in court programs. The volume of projects dedicated to understanding litigant experiences falls short in relation to the magnitude of civil justice system encounters handled by the legal system. Nevertheless, the extant research converges on some surprising insights into the factors that shape litigants’ perspectives and the contextual variables that affect their experiences. This article synthesizes the major findings, discusses some of their law and policy implications, and highlights areas that beg for further investigation at the intersection of law and psychology.
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Cultivating Equal Minds: Laws and Policies as (De)biasing Social Interventions
Vol. 19 (2023), pp. 37–52More LessTo address issues of bias and discrimination in many areas of social life, scientists have developed a variety of strategies to debias people's minds and reduce discrimination and the disparities that stem from it. A large body of research has documented, however, that debias trainings have short-lived effects on changing patterns of thinking (i.e., they last less than 24 hours) and minimal effects on behaviors. In this article, I argue that such limited effects of one-time trainings are to be expected, given the segregated and stratified social structure we live in that was created by historic and contemporary laws and policies. After explaining the mechanisms through which laws and policies create biased people, I then explain how laws and policies can instead be used as levers to create long-lasting changes in biases.
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Guantánamo's Legacy
Vol. 19 (2023), pp. 53–74More LessThe military detention facility at the Guantánamo Bay naval base is the most enduring manifestation of the US “war on terror.” It is also materially and symbolically central to US torture, war crimes, and other egregious violations of law in the post-9/11 era. Since the first detainees arrived in 2002, Guantánamo has been the subject of controversy and debate, as well as a key setting for legal challenges to government policies. This article traces the legacy of the prison and the military commissions across four administrations. It demonstrates that the lack of a common understanding or shared narrative about what Guantánamo means or has meant is a product of entrenched partisanship that characterizes contemporary US politics more broadly. Guantánamo's confounding legacy reflects the lack of a national consensus about the role of laws and courts as guarantors of even the most basic rights.
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The Ever-Shifting Ground of Pretrial Detention Reform
Vol. 19 (2023), pp. 75–91More LessIn the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.
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Police Go to Court: Police Officers as Witnesses/Defendants
Vol. 19 (2023), pp. 93–107More LessPolice officers regularly serve as government witnesses in criminal cases. In recent years, they have also increasingly found themselves as defendants facing criminal charges, civil lawsuits, or both. This article surveys scholarly literature on police officers as both witnesses and defendants, with a focus on sociological and legal barriers to understanding officer deception, assessing officer testimony, and holding officers accountable for misconduct. With respect to officers as witnesses, these barriers include the prevalence of police officer perjury, judicial deference to officers’ testimony, and laws and policies that prevent defendants from learning about or exposing officer misconduct and unreliability. Charging and suing officers present additional logistical and substantive questions. These questions include who should be responsible for investigating and deciding whether to prosecute police, what protocols should guide those investigations, whether police prosecutions meaningfully improve policing or ensure accountability, and what role the civil legal system should play in addressing police misconduct.
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Centering Race in Studies of Low-Wage Immigrant Labor
Vol. 19 (2023), pp. 109–129More LessThis review examines the historical and contemporary factors driving immigrant worker precarity and the central role of race in achieving worker justice. We build from the framework of racial capitalism and historicize the legacies of African enslavement and Indigenous dispossession, which have cemented an exclusionary economic system in the United States and globally. We consider how racism and colonial legacies create migrant displacement and shape the experiences of immigrant workers. We also detail how racism permeates the immigration bureaucracy, driving migrant worker precarity. The traditional labor movement has played an important role in closing this gap, but increasingly so have worker centers and the immigrant rights movement as a whole. These partnerships have had to navigate coalitional tensions as they build new strategies for realizing immigrant worker rights.
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Mandatory Employment Arbitration
Vol. 19 (2023), pp. 131–144More LessThis article offers a comprehensive overview of the academic literature concerning mandatory employment arbitration and existing empirical evidence. Proponents of mandatory employment arbitration contend mandatory arbitration provides access to justice to those excluded from the traditional civil litigation system. Conversely, opponents of mandatory employment arbitration assert that it is a coercive system that disproportionately benefits employers and disadvantages employees. Although these entrenched perceptions of mandatory employment arbitration are not new, an expanding body of recent empirical research provides fresh insights. The empirical literature reveals lower employee success rates and financial awards, longer case resolution times, and evidence of a repeat player effect in arbitration relative to civil litigation and, as a whole, tends to support arguments made by opponents of the forum. This article reviews the literature on the major debates surrounding employment arbitration and corresponding empirical evidence.
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Laws of Social Reproduction
Vol. 19 (2023), pp. 145–164More LessFeminists have long demonstrated the invisibility of women's reproductive labor, performed in bearing and raising children, maintaining households, and socially sustaining male labor. Every wave of feminist struggle from the late nineteenth century onward has actively queried the inequalities that characterize women's performance of such work, variously referred to as unpaid domestic and care work, domestic labor, or care work. Robust traditions of scholarship on women's unpaid work animate various disciplines, often spilling into political struggles for adequate recognition of this work. As the pandemic has rendered visible once again the reproductive labor of women the world over, this article offers an overview of social reproduction theory, feminist legal theorizations of reproductive labor, and how we might recuperate a rich tradition of theorizing on social reproduction to develop a materialist approach to law's regulation of reproductive labor across the marriage-market spectrum with a view to social and economic justice.
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Firearms Law and Scholarship Beyond Bullets and Bodies
Vol. 19 (2023), pp. 165–177More LessAcademic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, intimidation, and social trauma; deter civic participation and the exercise of constitutional rights; and further entrench racial inequality.
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Beyond Law as a Tool of Public Health: Vaccines in Interdisciplinary Sociolegal and Science Studies
Vol. 19 (2023), pp. 179–194More LessResearch on vaccines in the law and social sciences skews heavily toward an instrumentalist approach to knowledge in service of vaccine promotion. Overcoming hesitancy and promoting vaccine acceptance have been major goals, but successful levers for behavioral change remain elusive. Research with constructivist approaches to vaccines from feminist sociology and anthropology has uncovered ethnographic richness to describe how vaccine debates illuminate inequalities in parenting and re-entrench patterns of racism and colonialism. There is considerable potential in science and technology studies approaches that take seriously the materiality and movement of vaccines in networks of production, finance, and global politics, though there are considerable methodological challenges for these research designs. This review charts the lopsided bibliography of law and social science research on vaccines, asking why scholars rarely move away from instrumentalist conceptions of law in the service of public health and, when they do, explaining what theoretical tools enable it.
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Medical Aid in Dying: New Frontiers in Medicine, Law, and Culture
Vol. 19 (2023), pp. 195–214More LessMedical aid in dying (MAID) has been a productive target for social scientific inquiry at the intersections of law and medicine over the past two decades. Insofar as MAID crystallizes and reflects personal and cultural understandings of key concepts such as individualism, dependency, dignity, and care, it is a rich site for social scientific theorizing. This article reviews and assesses the contributions of social scientific perspectives to research on MAID. We propose that social scientific research on MAID offers four distinctive contributions: its descriptive (rather than normative) orientation, its focus on cultural meanings, its insights into processes of knowledge production, and its comparative lens. The article's major sections describe (a) attitudes toward MAID, (b) MAID-related social movements, (c) legalization approaches, and (d) lived experiences of MAID in permissive jurisdictions. We conclude by reflecting on how MAID scholarship can inform social inquiry into other areas in which law and medicine converge.
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How to Study Global Lawmaking: Lessons from Intellectual Property Rights and International Health Emergencies
Vol. 19 (2023), pp. 215–234More LessInternational agreements on Intellectual Property (IP) have proven to be a good example to study global lawmaking. Beginning by looking at the 1990s Trade-Related Intellectual Property Rights (TRIPS) agreement and into the negotiation and implementation of regional and national trade agreements, this article reflects on the intricate relationship between international IP agreements and public health. The comprehensive analysis of these international rules and their effect provides valuable insights into the dynamic interplay between domestic and international factors in shaping health policies. Building upon the IP case, we categorize existing scholarship on global lawmaking into three methodological approaches: (a) methodological internationalism, (b) methodological nationalism, and (c) the interplay between domestic and international factors. We close with a call for researchers to advocate and integrate into their methods a co-constitutive approach that considers the simultaneous shaping of domestic and international elements.
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COVID-19 and the Data Governance Gap
Vol. 19 (2023), pp. 235–253More LessThe COVID-19 pandemic has highlighted many complexities involved in using data and advanced technologies to help resolve public health emergencies. These complexities highlight the need to embrace a broader framework of data governance with three foundational questions: (a) who decides about data flows, (b) on what basis, and (c) with what accountability and oversight. These questions can accommodate the issues that have arisen in the literature regarding new types of data harms. However, these questions also foreground important issues of power, authority, and legitimacy. Data governance can provide an organizing normative framework to address emerging data themes including access to data, collective decision making, data intermediaries, data sovereignty, design and digital infrastructure, regulatory technologies, the rule of law, and social trust and license. The pandemic experience with contact tracing apps, in particular, showed the many unresolved governance challenges.
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AI and Global Governance: Modalities, Rationales, Tensions
Vol. 19 (2023), pp. 255–275More LessArtificial intelligence (AI) is a salient but polarizing issue of recent times. Actors around the world are engaged in building a governance regime around it. What exactly the “it” is that is being governed, how, by who, and why—these are all less clear. In this review, we attempt to shine some light on those questions, considering literature on AI, the governance of computing, and regulation and governance more broadly. We take critical stock of the different modalities of the global governance of AI that have been emerging, such as ethical councils, industry governance, contracts and licensing, standards, international agreements, and domestic legislation with extraterritorial impact. Considering these, we examine selected rationales and tensions that underpin them, drawing attention to the interests and ideas driving these different modalities. As these regimes become clearer and more stable, we urge those engaging with or studying the global governance of AI to constantly ask the important question of all global governance regimes: Who benefits?
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Regulating Government AI and the Challenge of Sociotechnical Design
Vol. 19 (2023), pp. 277–298More LessArtificial intelligence (AI) is transforming how governments work, from distribution of public benefits, to identifying enforcement targets, to meting out sanctions. But given AI's twin capacity to cause and cure error, bias, and inequity, there is little consensus about how to regulate its use. This review advances debate by lifting up research at the intersection of computer science, organizational behavior, and law. First, pushing past the usual catalogs of algorithmic harms and benefits, we argue that what makes government AI most concerning is its steady advance into discretion-laden policy spaces where we have long tolerated less-than-full legal accountability. The challenge is how, but also whether, to fortify existing public law paradigms without hamstringing government or stymieing useful innovation. Second, we argue that sound regulation must connect emerging knowledge about internal agency practices in designing and implementing AI systems to longer-standing lessons about the limits of external legal constraints in inducing organizations to adopt desired practices. Meaningful accountability requires a more robust understanding of organizational behavior and law as AI permeates bureaucratic routines.
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How Technology Is (or Is Not) Transforming Law Firms
Ian Rodgers, John Armour, and Mari SakoVol. 19 (2023), pp. 299–317More LessIn this review, we explore the impact of technology on US and UK law firms, focusing in particular on the recent machine learning wave of artificial intelligence. Technology has not so far ushered the end of law firms as we know them. Adoption of artificial intelligence/machine learning is in its early stages in the sector, and its impact has been constrained by the scope of use cases for which it is so far well-suited. Technology is nevertheless transforming law firms, in the sense of leading to material changes to their current forms, in the following novel ways: (a) deployment not only in the back office but in the front office, affecting lawyers’ core tasks of advising clients; (b) opportunities for lawyers to pursue alternative career paths with different skill sets across the profession; and (c) emerging options for law firms to adopt business models creating value from nonhuman capital and nonlegal human capital.
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Bankruptcy Law's Knowns and Unknowns
Vol. 19 (2023), pp. 319–335More LessIn 1978, Congress created a new federal bankruptcy law that has since become a key part of the American capital markets. I examine how large companies and their investors contract to make bankruptcy more or less likely, how distressed firms negotiate with creditors outside of bankruptcy, and how companies plan for a Chapter 11 filing and navigate the bankruptcy system. I also survey the strategic moves, ranging from litigation to financing, that activist investors deploy to improve their bargaining power and earn higher returns. The American bankruptcy system is evolving constantly, and prevailing accounts of bankruptcy law quickly become stale, creating a constant need for new empirical research to establish a foundation for policy making.
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Refeudalization and Law: From the Rule of Law to Ties of Allegiance
Vol. 19 (2023), pp. 337–355More LessA significant body of social science research is now working with the concept of refeudalization—as well as related terms such as neo-feudalism and neo-medievalism—to analyze a variety of contemporary developments. The social science scholars who use these terms challenge an oversimplified modernization model that regards power relations such as serfdom, vassalage, suzerainty, and fiefdom as merely historical relics. The refeudalization process has significant legal dimensions, which this review outlines to draw out the central implications of the concept of refeudalization for an adequate understanding of current developments in law, society, and politics. Topics covered include the changing relationship between public and private law; the privatization of public authority and responsibilities; the territorial unbundling of sovereignty and the tendency toward multiple, overlapping authorities and jurisdictions; the contractualization of groups and political units as well as individuals; and the changing relationship between sovereignty and political representation.
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Authoritarian Legality and State Capitalism in China
Vol. 19 (2023), pp. 357–373More LessThis review addresses three questions surrounding authoritarian legality and state capitalism in China. First, what is legality, and does it exist in China's Leninist single-party state? Scholars who characterize the system as order maintenance find the absence of legality. Those employing dual-state and instrumentalist views of law find partial legality. Scholars promoting the notion of bare legality find complete legality. Second, does authoritarian legality strengthen regime legitimacy? Scholars agree that the state seeks legitimation through its embrace of authoritarian legality. Empirical research tests this claim. Third, is China in transition from plan to market, and what is the role of law in state capitalism? The teleology of the transition paradigm overlooks illiberal underpinnings of property rights and factor markets. Answers to these questions help explain regime resilience, economic growth, economic crisis, and inequality in China. Both the institution of the dual state and the perpetuation of plan elements reinforce state power.
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Previous Volumes
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Volume 19 (2023)
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Volume 18 (2022)
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Volume 17 (2021)
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Volume 16 (2020)
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Volume 15 (2019)
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Volume 14 (2018)
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Volume 13 (2017)
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Volume 12 (2016)
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Volume 11 (2015)
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Volume 10 (2014)
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Volume 9 (2013)
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Volume 8 (2012)
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Volume 7 (2011)
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Volume 6 (2010)
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Volume 5 (2009)
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Volume 4 (2008)
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Volume 3 (2007)
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Volume 2 (2006)
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Volume 1 (2005)
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Volume 0 (1932)