Annual Review of Law and Social Science - Volume 10, 2014

What are the virtues of institutions we take for granted—universities, the study of the social sciences and humanities, and scholarship on professions such as law? What are the vices of the disciplinary structure of the social sciences, even in the law and society movement and criminology that started as interdisciplinary projects? Research on regulation within an interdisciplinary structure, the Regulatory Institutions Network, is used to illustrate the difficulties of attempts to change direction in the social sciences. The article advocates the creative destruction of disciplinary structures by organizing in tents that study institutionalization (rather than buildings that study categories of institutions). To keep pace with social change, pulling tents down and endlessly pegging out new ones is a path forward. A politics of defending universities and opposing the disciplines that have captured them does not mean advocacy of restructuring. If more interesting work issues from poorly funded tents than from disciplinary edifices, reformers can advance creative destruction.

State disinvestment in higher education has been a notable characteristic of neoliberalism all over the world, and the corporatization of universities has been the typical response. It has led to a proliferation of law schools with students paying high fees. Corporatization has also engendered a culture of relentless competition between universities, which manifests itself in league tables and rankings. The pursuit of prestige has compelled law schools to prioritize research over teaching, which poses a dilemma for what is taught and how it is taught. The contradictions of the corporatization thesis are graphically illustrated by the experiences of Australia, which might be described as the canary in the mine shaft. Although corporatization plays out differently in decentralized regimes with a substantial private sector, such as the United States, its impact on the legal academy in those places has been similarly profound. It is apparent that the dilemmas posed by corporatization for the legal academy require considered scholarly attention.

Legal indicators, sometimes known as rule of law indicators, governance indicators, or indicators of public service performance, are quantitative measures of the performance of legal systems. They are used both as sources of knowledge about societies and as means of governing them (technologies of governance). As a result, these indicators have begun to attract considerable attention from scholars, policy makers, and other actors. Key issues include the following: When, why, and by whom are various kinds of legal indicators produced? Are they reliable and valid? How influential are they? Given their influence, should they be regulated, and if so, how? This article reviews recent efforts to answer these questions. The overarching theme is that all of these questions are related to one another.

Field experiments are randomized experiments that take place under naturalistic conditions. This research method is experiencing rapid growth throughout the social sciences and especially in legal studies, where it is used to rigorously evaluate policies and programs. We begin by charting the growth of field experimentation in law and legal studies, describing the statistical properties of experiments and discussing the practical threats that may undermine experiments conducted in field settings. Next, we review the experimental research literature in a variety of domains: legal institutions, including the judiciary, legislature, and legal profession; incentives, especially as they apply to tax compliance and business law; and laws and obligations, including legal code, policy, and legal theory. We conclude by highlighting some of the challenges that the experimental literature must confront if it is to speak convincingly to issues of law and policy.

This article reviews best practice for interviewing child witnesses. In most officially recognized abuse cases, the child previously disclosed abuse, making it possible to elicit disclosures without asking closed-ended questions. Interviewers nevertheless overuse closed-ended questions, which lead to short unelaborated responses, privilege the limited perspective of the interviewer, maximize the potential for linguistic difficulties, increase children's tendency to guess, and risk response biases. Interviewers can avoid closed-ended questions through narrative practice, in which interviewers ask children to narrate a recent innocuous event before introducing the abuse topic; cued invitations, in which interviewers repeat details reported by children and ask for elaboration; open-ended wh- questions; and interview instructions, including asking children to promise to tell the truth. A remaining challenge is how to elicit disclosures from reluctant children. Better understanding of the dynamics of abuse disclosure and optimal interviewing strategies can assist the legal system in assessing the veracity of children's reports.

This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.

Since the Civil Litigation Research Project in the 1980s, sociolegal researchers have referenced the metaphor of the dispute pyramid to understand dispute resolution. The pyramid focuses on formal legal dispute resolution and represents disputes as a linear process of attrition in which only a small proportion of perceived injuries proceed to adjudication. Although a fertile metaphor, the dispute pyramid approach left important processes undertheorized and understudied. We propose a new metaphor: the dispute tree. The dispute tree has many branches, both legal and nonlegal, through which grievances may be resolved. Grievances may move along several branches simultaneously, and dispute resolution may be a nonlinear process. Branches represent the evolving nature of disputes as living organisms that may bear flowers and fruit or may wither and die. Not only dispute trees but also their forests are subjects for study. Dispute trees exist in social environments that may foster or inhibit healthy growth; they may grow within public or privately governed forests. We argue that the dispute tree metaphor better represents decades of research on disputing, which has identified myriad disputing channels outside of courts, as well as both individual and collective mobilization. We also believe that this new metaphor for disputes and the dispute process will open new avenues of inquiry.

Following the call to focus on law as a set of practices, I develop Michel Callon's concept of framing (which I refer to here as bracketing) in relation to law. Bracketing is the process of delimiting a sphere within which interactions take place more or less independently of a surrounding context. It temporarily rearranges the relations that constitute legal reality. A legal contract, for example, draws certain objects and relationships into sharper focus, ignoring or deliberately excluding others. I offer several examples of legal bracketing—some foundational, others highly routinized—and note several distinctive characteristics. I then use bracketing to think about legal categorization, law as effect (rather than essence), law's success, and the heterogeneity found within a legal frame.

Social science research offers critical race theory (CRT) scholars a useful methodology to advance core CRT claims. Among other things, social science can provide CRT with data and theoretical frameworks to support key empirical claims. Social psychology and sociology in particular can help to explain how race constructs key aspects of social experience—for example, the role of race in suspicion of African Americans as potentially criminal and the use of excessive force by law enforcement. At the same time, a collaboration between CRT and social science risks undermining CRT critiques of objectivity and neutrality and potentially limits the theory's ability to combat structural forms of racial inequality. CRT scholars can mitigate these risks by choosing social science methods carefully and by recognizing that social science is only one among several modes of knowledge production.

Language-and-law research is now an established field for study, with decades of development behind it. And yet the field remains fragmented, with disparate streams of scholarship that, ironically, tend to speak in different languages: linguistic anthropology, discourse studies, semiotics, literary theory and rhetoric, translation studies, sociolinguistics, legal philosophy, and more. On one hand, this broad variety speaks to the robust character of language-and-law studies as a focus for relatively diverse scholarly endeavors. And for a number of reasons, it seems likely that the separate schools of thought in this area will generally continue to pursue their often distinct paths. On the other hand, as this article argues, a careful reading of work in the area reveals the potential for a productive conversation among some very different perspectives. Such a conversation offers the promise of creating exciting bridges among law, the social sciences, and the humanities. It also draws together interest in a variety of kinds of language: spoken, gestural, written, visual. This kind of bridge, we suggest, is one of the gifts of the truly interdisciplinary space opened up by sociolegal research—it permits us to combine quite diverse kinds of knowledge in our quest to more fully understand closely related legal phenomena. In this article, we also combine two different kinds of disciplinary voices, inviting the reader to assess what insights about law arise from these voices separately and, perhaps, together.

The term judicial independence has a range of meanings and applications. It is variously employed in normative and descriptive ways; in absolute and relative terms; as a theoretical construct and a practical safeguard; in regard to judges individually and collectively; as an end in itself and a means to other ends; as a matter of hard law and soft norm; and in relation to the political branches of government, the media, the electorate, litigants, interest groups, and judges themselves. This article creates a structure within which to situate the judicial independence literature, to the end of positioning judicial independence as a useful, if polymorphous, organizing principle that delineates a foundational component of the judicial role.

Research on the legitimacy of the US Supreme Court has blossomed of late, with scholars investigating many different hypotheses derived from legitimacy theory. As the theory has been pushed, a number of new controversies have emerged. Here, we identify four such debates: (a) whether the Court's legitimacy rests on satisfaction with its performance, (b) whether support for the Supreme Court reflects the polarization of politics in the contemporary United States, (c) whether the Court's legitimacy requires belief in the “myth of legality”, and (d) whether judicial decisions can change public opinion. Our analysis of these issues generally concludes that the Supreme Court's legitimacy is reasonably secure, in part because individual rulings have little impact on support for the institution, in part because the Court has access to powerful and influential symbols of judicial authority, and in part because the current Supreme Court issues roughly equal numbers of conservative and liberal decisions.

Human trafficking is an issue that has grabbed the attention of the world over the past 15 years. But meaningful progress and research are still held back by a number of debates between academics, policy makers, and activists. Agreeing upon a consistent definition and methods of measuring trafficking presents a challenge, as does the continued focus on the sex trafficking of women into prostitution to the exclusion of other types of trafficking and genders. Debates over what type of crime trafficking is and what drives it (organized crime, human rights, migration policies) have also had important impacts on the way that the phenomenon is conceptualized and dealt with at the national and international levels. This article outlines these debates and suggests directions for future research that can reveal the complexities of the phenomenon but also clarify our understandings of the lived experiences of people involved and the processes that drive it.

Public disorder, interpreted as a nuisance by some, is a sign of democratic vitality and innovation for others. Depending on context, it takes many forms. Hooligans, gangs, rioters, and radical groups engage in violent rituals. A breakdown of order allows opportunistic action. Failed negotiations or broken organized social processes, themselves devoid of violence, may lead to coordinated destruction or scattered attacks. Police are an essential piece in the dramaturgy of disorder, and their responses reflect what they have been trained to do and what is institutionally sanctioned. Theories of public disorder and related hypotheses address causes (the relative deprivation theory, the broken windows hypothesis) and dynamics (mobilization of resources, the spark and tinder metaphor, the flashpoint model). The interactionist/comprehensive perspective is also relevant, as it examines how routine relations may be modified by the operation of multiple forces that, in the course of fluid and undetermined situations, come together to produce public disorder in a modified context. In sum, public disorders can make a difference and cause lasting changes; some of them, as signs of democratic vitality, benefit the environments where they occur.

Complex reciprocal relationships between crime, law, and regime change are explored through a review of the literature. The first part of this article examines the stabilizing function of law for political regimes and the risks for regime stability associated with weakened rule of law and state crime. The literature on experiences from state socialist regimes prompts questions regarding the future of Western interventionist states, especially during periods of tightening government control. The second part examines crime and law during and after regime change. The focus is on (a) legal responses to past state crimes (or transitional justice), especially criminal trials, and effects of such responses, partly mediated by collective memories, on human rights and democracy records of new regimes and (b) societal crime rates after transitions to democracy and the role of law in response to rapid increases of crime in posttransition situations.

Once regarded as mere pawns of their regimes, courts in authoritarian states are now the subject of considerable attention within the field of comparative judicial politics. New research examines the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance. This new body of research constitutes an emergent field of inquiry, while simultaneously contributing to a number of related research agendas, including authoritarian durability and regime transition, human rights, transitional justice, law and development, and rule-of-law promotion. Moreover, this research offers important insights into the erosion of rights and liberties in “consolidated democracies.”

Cause lawyers are powerful gatekeepers to the political and legal institutions where the dynamics between law and social change get played out. Yet, after years of research, we still seem far from a settled picture of cause lawyering and cause lawyers. In this article, we first describe the social and cultural practices that constitute cause lawyering. Second, we link cause lawyering to the clients served—from sophisticated social movement organizations to ordinary people. We show that cause lawyering is powerfully shaped by the clients served and by the contexts in which that lawyer–client relationship is situated. Finally, we examine the political context of cause lawyering. We also address larger questions in this research tradition: Is cause lawyering different from other forms of lawyering? How and why does cause lawyering produce tension between the lawyers and their clients? Does cause lawyering generate different kinds of professional and political identities?

By conceptualizing street-level bureaucrats (SLBs) as the ultimate policy makers, Michael Lipsky (1980) focused attention on the interaction between citizens and the state at the organizational front lines. In subsequent years, research on SLBs provided significant insight into the interactions of SLBs and citizens. In particular, scholarship has focused on the inherently autonomous nature of street-level work and the discretion these agents of the state possess. Work in this area has traditionally relied on teachers, social workers, and police officers as sources for empirical study of how formal and informal social structures influence the use of discretion by SLBs. Recent scholarship, and coverage of New York City's stop and frisk policy, has renewed interest in the role that SLBs play in constructing justice for the citizens they encounter. In this review, we consider the street-level-bureaucracy scholarship and articulate how insights from this literature inform our current understanding of investigatory police stops, such as those stemming from the stop and frisk policy in place in New York.

In 1968, almost 50 years ago, the Supreme Court validated, in a case called Terry v. Ohio (1968), a common police practice known as stop and frisk, so long as an officer could justify the action on the basis of a newly developed standard: reasonable suspicion. Today, policing agencies use stop and frisk prophylactically, stopping in some cities tens or even hundreds of thousands of people annually. These developments and the litigation around the strategy in New York City and elsewhere provide an opportunity to revisit Terry and to consider recent research in law and social science regarding stop and frisk. This review focuses on three issues: the evolution of legal doctrine pertaining to stop and frisk, arguments regarding the effectiveness of stop and frisk as a mechanism to control and reduce crime, and a delineation of the relevance of the theory of procedural justice to our understanding of the interleaving of the law and social science of stop and frisk.

This review focuses on the enactment of borders beyond the physical demarcation of the nation, to encompass the entire migratory process, with particular attention to practices in the United States and the European Union. It addresses the twin processes of the externalization (outsourcing) and internalization (insourcing) of border controls, both of which rest on the securitization of migration management. Outsourcing involves a series of extraterritorial activities in sending and in transit countries at the request of the more powerful receiving state. Insourcing includes the policing of immigrants and enforcement controls within the interior, such as the detection, detention, and deportation of immigrants. This multipronged strategy that extends beyond the edges of a territory highlights the spaciality of enforcement and the buttressing of power imbalances between sending countries, on one hand, and transit and receiving countries, on the other, as well as inequalities within national territories with respect to legal status.