Annual Review of Law and Social Science - Volume 1, 2005

Law and society, though not a field in itself, is the object of a growing movement that studies legal systems using tools of social science. Founded by sociologists, the movement now includes representatives of all the social sciences. It has developed strong organizations in the United States and in a number of other countries. Its adherents share a number of basic assumptions; they reject extreme ideas of legal autonomy and stress instead the dependence of law on its social context. Key components of the legal order, and thus key objects of study, are substance, procedures, structures, and legal culture. Scholars focus on the actual forces that produce law and on the impact of legal interventions. Sanctions, the peer group, and the internal moral sense are among the factors that determine actual impact. Much has been accomplished in the field, although much remains to be done, and translating findings into policy is often quite problematic.

This article reviews some of the literature on comparative criminal punishment and suggests possible directions for future research. It focuses on four topics. First is the sociology of modernity found in such authors as Foucault, Durkheim, Garland, Feeley and Simon, and others. While studies of modernity tend to downplay differences in modern societies, the work of these sociologists offer many starting points for valuable research. Second, the article discusses possible approaches to explaining differing degrees of harshness in criminal punishment. Third, the article surveys some of the approaches to the problem of explaining differing rates of violence in different cultures. Fourth, it explores some issues in the intersection between comparative criminal law and the comparative sociology of punishment. The article is intended to be suggestive rather than exhaustive.

We briefly review two basic models of settlement bargaining based on concepts from information economics and game theory. We then discuss how these models have been generalized to address issues that arise when there are more than two litigants with related cases. Linkages between cases can arise because of exogenous factors such as correlated culpability or damages, or they can be generated by discretionary choices on the part of the litigants themselves or by legal doctrine and rules of procedure.

Corporate governance concerns three sets of issues: property rights, relationships between firms and financial markets, and labor relations. Our literature review shows that the system of corporate governance that emerges within a particular country reflects the outcome of political, social, and economic struggles in that country and that it does not reflect efficiency considerations focused on managing agency relations between owners and managers. Despite these facts, much research has been done in recent years attempting to analyze whether a superior matrix of institutional arrangements or a set of best practices of corporate governance exists to produce greater economic growth. Our review shows that there does not appear to be a single set of best practices, but rather that what is important are stable institutions that are legitimate and prevent extreme rent seeking on the part of governments and capitalists.

This review considers how a socio-legal approach may be used to explore the relationship between human rights and law in the new century. Drawing on the classic traditions of law and society research, including gap studies, rights consciousness, public interest lawyering, and legal resource mobilization, as well as more recent approaches to legal globalization and epistemic communities or nongovernment networks, this paper begins to define a field of transnational human rights. The review traces the idea of transnational human rights to the struggles between social movements, in national and international fora, and the impact these struggles have had on the relationship between state power or sovereignty and the quest for legitimate and effective forms of governance. A key element of this endeavor, the paper concludes, is the need to integrate and understand the interaction between three traditionally separate domains of rights: international human rights, humanitarian law, and constitutional rights. It is this focus that defines the emerging field of transnational human rights.

Daubert stands for a trilogy of Supreme Court cases as well as revisions of the Federal Rules of Evidence. Together they represent American law's most recent effort to filter expert evidence offered at trial. This review begins by placing the Daubert trilogy in the context of earlier judicial efforts to solve the screening problem, which began well before the twentieth century, and then provides a brief explication of evidence law under Daubert. Next, we discuss several aspects of the jurisprudence of expert evidence: its connection to debates in the philosophy of science, the practical legal problems courts are trying to solve, and procedural implications. Then we review and discuss varied impacts of Daubert: changes in law, marked increases in cases and scholarship relating to expert evidence, and research examining judicial gatekeeping under Daubert (civil defendants appear to benefit greatly and criminal defendants hardly at all). We conclude by offering several predictions and prescriptions for the future of expert evidence.

The right to criminal jury trial is protected by the U.S. Constitution and the constitutions of all 50 states. In practice, however, roughly 95% of persons convicted of felonies in America waive their right to trial by jury by entering guilty pleas. Most such pleas derive from plea bargaining, whereby defendants plead guilty in exchange for prosecutorial and judicial concessions. Although plea bargaining has generated an extensive scholarly literature, its history, until recently, has remained obscure. This review examines existing legal-historical scholarship on the origins and expansion of plea bargaining in the nineteenth century and explores the range of factors cited by legal historians for plea bargaining's rise. It reveals that plea bargaining was one of several methods employed by Anglo-American criminal justice administrators to dispose of criminal cases without juries. When compared with these other modes of bypassing trial by jury, plea bargaining appears less distinctive—and less distinctively American—than often considered.

Social science has long played a role in examining the efficacy and fairness of the death penalty. Empirical studies of the deterrent effect of capital punishment were cited by the Supreme Court in its landmark cases in the 1970s; most notable was the 1975 Isaac Ehrlich study, which used multivariate regression analysis and purported to show a significant marginal deterrent effect over life imprisonment, but which was soon roundly criticized for methodological flaws. Decades later, new econometric studies have emerged, using panel data techniques, that report striking findings of marginal deterrence, even up to 18 lives saved per execution. Yet the cycle of debate continues, as these new studies face criticism for omitting key potential variables and for the potential distorting effect of one anomalously high-executing state (Texas). Meanwhile, other empiricists, relying mainly on survey questionnaires, have taken a fresh look at the human dynamics of death penalty trials, especially the attitudes and personal background factors that influence capital jurors.

The procedural justice literature has grown enormously since the early work of Thibaut and Walker in the 1970s. Since then, the finding that citizens care enormously about the process by which outcomes are reached—even unfavorable outcomes—has been replicated a wide range of methodologies (including panel surveys, psychometric work, and experimentation), cultures (throughout North America, Europe, and Asia), and settings (including tort litigation, policing, taxpayer compliance, support for public policies, and organizational citizenship). We have learned a great deal about the antecedents and consequences of these judgments. In particular, the work of Tom Tyler and Allan Lind and their colleagues suggests that people care about voice, dignity, and respect for relational and symbolic reasons rather than (or in addition to) instrumental reasons. This finding has benevolent implications for governance and social cooperation, but also some troubling implications, leaving people susceptible to manipulation and exploitation.

After describing many of the features that structure educational opportunity, and how race interacts with these structures, we briefly relate a set of important orienting perspectives on the law-race relation. We divide issues of education into three categories: (a) inherently racialized aspects of law and education; (b) aspects of education that intersect race and the law; and (c) emerging issues in race, education, and the law. Treating desegregation, affirmative action, special education, gifted and talented education, tracking, high-stakes accountability, school finance, bilingual education, and legacy admissions, we identify key cases and controversies while critically evaluating relevant social science research. We close with a discussion of the law-race relation as revealed through its operation in the field of education.

This review article is not dedicated to a subject matter of research. Instead it outlines various kinds of facts commonly used to analyze the relations of law and society. To illustrate, it gives examples of eight distinct kinds of facts on how action departs from relevant laws on the books: actions in crusades; actions following deep norms when coordination norms are in conflict with them; police culture undermining legal citizen protection; corruption; legal pluralism as in colonies; crucial missing facts on behavior deliberately left out of the law of contract and similar laws to create flexibility; and disagreements between public opinion and the law. Each of these and more are then analyzed in terms of what is distinctive about them and of the kind of law and society theories they bear on.

The elaborate efforts of the legal system to control and channel jury behavior reveal a mistrust of an institution that also attracts extravagant praise. We look at the jury by examining research on real juries drawn from archival studies and post-trial surveys and interviews, as well as from the deliberations of real juries. We show how the methods used by courts to gather and select jurors affect the representativeness and legitimacy of the jury. We also examine the evidence underlying skepticism about jury verdicts and decision making, focusing on cases that pose special challenges to jurors, particularly those involving complex evidence, legal complexity, and the death penalty. We then consider how optimal jury trials can be achieved.

Even twelve experienced judges, deliberating together, would probably not function well under the conditions we impose on the twelve inexperienced laymen [Judge Jerome Frank, Courts on Trial (1949), p. 120].

Juror #4 (discussing the testimony of an expert physician in a medical malpractice case): What I would like to have is 40 [specialists] and show them the [test results] and okay, get a survey and is this significant or is this not significant and would they have [done what the defendant did]? [Deliberating juror from the Arizona Filming Project (Diamond et al. 2003)]

In recent years there has been a renewed effort to ground conventional law and economics methodology, with its exclusive focus on efficiency and income redistribution through the tax system, in modern welfare economics (Kaplow & Shavell 1994, 2001). This effort raises a challenge to the possibility of a feminist law and economics: Is it possible to be a good (welfare) economist and still maintain the ethical and political commitments necessary to address feminist concerns with, for example, rights, inequality, and caring labor? In this review, I argue that modern welfare economics, rather than supporting the ethical minimalism of conventional methodology advocated by Kaplow and Shavell, ratifies the need for an ethically and politically informed economic analysis. Feminists can, and should, use the tools of both positive and normative economics to analyze feminist issues in law.

Felon disenfranchisement has recently emerged as an issue of intense public concern and scholarly interest. This review highlights the broad range of socio-legal issues implicated by the practice of denying convicted felons the right to vote by considering the history, impact, and contemporary legal and scholarly debates surrounding the practice. Although race-neutral on their face, many U.S. laws stem from a history of racial discrimination and serve as an example of advantaged groups using the law as a mechanism to control disadvantaged groups. The practice of disenfranchising criminals has survived numerous legal challenges, raising questions about the fundamental nature of the right to vote in the United States and the representativeness of a democracy that systematically excludes a large group of citizens.

Legal consciousness as a theoretical concept and topic of empirical research developed to address issues of legal hegemony, particularly how the law sustains its institutional power despite a persistent gap between the law on the books and the law in action. Why do people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality? Recent studies have both broadened and narrowed the concept's reach, while sacrificing much of the concept's critical edge and theoretical utility. Rather than explaining how the different experiences of law become synthesized into a set of circulating schemas and habits, the literature tracks what particular individuals think and do. Because the relationships among consciousness and processes of ideology and hegemony often go unexplained, legal consciousness as an analytic concept is domesticated within what appear to be policy projects: making specific laws work better for particular groups or interests.

This review shows that a combined law, economics, and organization theory approach leads to different and deeper understandings of the purposes served by complex contract and economic organization. The business firm for these purposes is described not in technological terms (as a production function) but in organizational terms (as an alternative mode of governance). Firm and market are thus examined comparatively with respect to their capacities to organize transactions, which differ in their complexity, so as to economize on transaction costs. The predictive theory of economic organization that results has numerous ramifications for public policy toward business and for teaching and research in the law schools.

During the 1970s, the enterprise of individual risk assessment in the criminal justice system came under sharp attack from a number of angles, including legal, political, and empirical. A particularly acute site of this controversy was the use of psychological expertise to make individual risk assessments of persons with mental illness who found themselves within the criminal justice system. Successful court challenges to the procedures under which such persons were held in custody as dangerous were followed by empirical research on those persons released. The result was something of a paradigm crisis in the use of individual risk assessment in criminal justice and growing calls for its abandonment. By the 1990s, however, risk assessment was becoming more important than ever to the criminal justice system. This resurgence reflected the political demand for strategies to prevent violent crime and led to significant investments in research and policy development. In the new paradigm of risk assessment, psychological expertise is still valuable but mediated by actuarial and quasi-actuarial methods of identifying the dangerous.