Annual Review of Law and Social Science - Volume 12, 2016

Considered as regimes of interpellation, history and law separately and jointly observe and insist upon realities often antagonistic to distinct realities that arise from their alternate incarnation as memory and right. Because it exists at the intersection of history and law, legal history has a responsibility to resolve, or at least reveal, these cross-purposes. This essay summarizes the development of the field of legal history and reviews the origins of its current leading sector, critical historicism. Using examples from Australian Native title jurisprudence, it argues that critical historicism cannot meet its responsibilities. The essay points elsewhere, to philosophies of history that may perform better.

This article compares sociopolitical perspectives about the law in three regions of the world: the United States, France, and Latin America. Despite their heterogeneity, these sociolegal perspectives share many practical and theoretical similarities. For this reason, this article proposes grouping them under the more general title of sociopolitical legal studies (SLS). This general label includes a collection of transdisciplinary research, theories, and studies that view law as a sociopolitical phenomenon central to the understanding of power and society. The concept of SLS reveals the existence of a transversal ground between three academic disciplines: sociology of law, legal theory, and sociolegal studies, which, in spite of multiple connections, rarely communicate with one another. Additionally, the term studies is used in a broad sense, including not just legal theories but also empirical analyses of the law.

This article seeks to provide an overview of how the controversial concept of legal culture has been used so as to clarify its potential role in further developing comparative studies of law in society. It shows that the term is currently given a variety of meanings, ranging from treating it as a variable that explains the turn to law, to exploring law as culture in different settings. As a way of moving forward, attention should be given to what is assumed or asserted by given authors with respect to three key issues: the kind of facts that are thought to make up legal culture, the chosen approach within which the concept is deployed, and the normative aspects of the enquiry. It ends by revisiting Chanock's The Making of South African Legal Culture so as to show how this framework can help reveal the theoretical underpinnings and contribution of a leading case study.

Two literatures—business and human rights and transitional justice—can be usefully combined to consider the issue of corporate complicity in past human rights violations in dictatorships and armed conflicts. But although the transitional justice literature emphasizes the positive role that international pressure plays in advancing justice, the business and human rights literature identifies international constraints in the area of corporate abuses. These include the lack of settled law establishing businesses' human rights responsibilities, the absence of courts to adjudicate corporate human rights violation cases, and the international focus on voluntary principles over legal obligations. Despite this unpropitious international climate, civil society mobilization and judicial innovation have advanced accountability efforts and overcome the strong veto power of business in some countries, often creatively blending international and domestic law. These efforts from below provide access to justice for victims and potential models for overcoming the current accountability gap.

Scholars of law and social science have challenged conventional wisdom that law and courts in authoritarian states are, at best, the tools of dictators and that law fails to matter in places riven by violence or warfare. Less discussed is how this expansive body of research is being carried out in conflict zones and authoritarian states. This article takes on that challenge: to describe the state of the study of field research on law by paying close attention to those unlikely places—conflict-affected and authoritarian states—that illuminate law's power in unexpected ways and to those close-to-the-ground methods—ethnographic, interview-based, and archival—that generate new hypotheses for law and social science research.

Law and settler colonialism is not a self-evident, contained, or straightforward field of inquiry. Rather, it uneasily straddles two overlapping bodies of scholarship: legal histories of colonialism and settler colonial studies. In part one, I place these literatures into conversation to trace their contributions, overlaps, and incommensurabilities. In part two, I turn to maritime worlds as a method of speaking across their analytic divides. Here, I consider the Torrens as a system of land registry inaugurated in the colony of South Australia (1858) and as the last clipper ship to be built in Britain (1875). In its recurring and double life, the Torrens offers an illuminating nineteenth-century example of the interconnection and interdependence of land and sea that serves as a useful lesson today. The global exigencies that arise from the past, organize the present, and impinge on the future demand a shift from terrestrial thinking toward the aqueous and amphibian legalities of settler colonial power.

The global law firm has become a significant actor in the provision of legal services in multiple countries. Although this reflects a response to increasing demand for these services by transnational companies, lawyers in these firms also help further the process of globalization that fuels such demand. One arena in which this occurs is the construction of transnational governance regimes that harmonize standards and expectations with respect to a variety of business activities. These regimes may be based on two different visions of the globalization process. One vision is of markets increasingly unfettered by national regulation, while another is of widely accepted human rights that impose common constraints on business activities. This article surveys the literature on transnational governance regimes and the work of transnational corporate lawyers to illuminate these dynamics, and suggests that further research on this topic can provide insight into how lawyers contribute to the globalization process.

After four decades of an expanding carceral state, political leaders are increasingly championing proposals framed as smart—rather than simply tough—on crime. Yet as states increasingly adopt progressive reforms like scaling back the drug war, punishment in other respects continues to grow harsher. This article applies the agonistic perspective to explain these contradictory trends. I argue that the struggles of agonists in the penal field, in the context of socio-structural changes, have produced this pattern of reform. In particular, although the conservative Right on Crime movement has claimed much of the credit, recent policy shifts would not have been possible without the long struggle of progressive and moderate actors throughout the past four decades to challenge the punitive status quo. In addition, the emergent alliances between groups with contrasting political ideologies help explain both the possibilities and limitations of reform.

This review seeks to establish takings as a respected field of sociolegal inquiry. In the legal academy, the term takings has become synonymous with constitutional takings. When defined more broadly, however, a taking is when a person, entity, or state confiscates, destroys, or diminishes rights to property without the informed consent of rights holders. Adopting a more expansive conception of takings lays the groundwork for a robust interdisciplinary conversation about the diverse manifestations and impacts of involuntary property loss, where some of the most valuable contributions are made by people who do not consider themselves property scholars. This review starts the conversation by bringing together the empirical literature on takings published between 2000 and 2015 and scattered in the fields of law, economics, political science, sociology, psychology, geography, and anthropology. Most importantly, a robust understanding of property's multiple values is required to fully comprehend the magnitude of the loss associated with takings, and this creates a space in which scholars can rescue property's political, cultural, emotional, and social value from the sizeable shadow cast by the overly dominant focus on its economic value.

The recent rise of the rule of law, from controversial legal ideal to unopposed international cliché/slogan, has rendered increasingly murky what the concept might mean, what the phenomenon might be, and what it might be worth. This article argues, nevertheless, that the concept engages with fundamental and enduring issues of politics and law, particularly the dangers of arbitrary power, and the value of its institutionalized tempering. The article seeks to support the rule of law ideal, if not all the ways it is invoked, by recovering some past thinking about and experience with and without the rule of law understood this way. The review criticizes current discussions for their temporal parochialism and their inadequate treatment of ideals and of contexts. It concludes with two pleas: a call for a social science that does not exist, and a suggestion that, in order to pursue its own ideals, the time might have come to move beyond the rule of law.

This article categorizes three approaches to theorizing transnational legal ordering that respectively address private legal ordering; provide a framework for the study of the interaction of lawmaking and practice at the transnational, national, and local levels; and reconfigure the concept of law. The first approach develops theories of private legal ordering, involving lawmaking, adjudication, and enforcement through nonstate actors and institutions. The second approach provides a theoretical framework for sociolegal study of the transnational processes through which legal norms are constructed, flow, and settle across national borders. The third develops theory to critique and reformulate the concept of law in transnational terms that include nonstate processes.

This article discusses recent developments in the study of voting and elections. How people end up voting in an election depends on (a) how effective voting power is distributed among voters and (b) the strategic interactions between voters and other interested parties. These are, in turn, affected by institutional arrangements, such as the composition of voting districts, campaign finance laws, and constitutional restrictions on vote dilution. In recent years, new social science–based approaches, both theoretical and empirical, from economists, political scientists, and legal scholars have shed new light on the democratic process.

This article analyzes more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It shows how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved—their most important manifestations being pluralistic regulation, new technologies, compliance, and new governance. It shows how each of the frameworks examined proposes its own solutions and has something valuable to offer, as well as its own limitations. The article concludes by discussing a fundamental challenge confronting the field, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrum.

We assemble studies within a set that we label randomized control trials (RCTs) in the US legal profession. These studies are field experiments conducted for the purpose of obtaining knowledge in which randomization replaces a decision that would otherwise have been made by a member of the US legal profession. We use our assembly of approximately 50 studies to begin addressing the question of why the US legal profession, in contrast to the US medical profession, has resisted the use of the RCT as a knowledge-generating device.

Neoliberalism represents the revival of economic liberalism that has been taking place since the late 1970s. Its main premise is that the market is morally and practically superior to government and any form of political control intended to improve on market outcomes. Central and Eastern European countries (CEEs) were global leaders in the adoption of neoliberal ideas and policies during the 1990s and 2000s. Almost all CEEs adopted neoliberal ideas and policies at a dramatic rate and are now among the most open economies in Europe. This was particularly true during the early transition period, when neoliberalism emerged as a virtually unchallenged ideology strongly dominating the course of economic and political reforms in the region. CEEs largely followed the script written by the authors of the Washington consensus and implemented monetary stabilization, economic liberalization, and a grand-scale privatization of the largely state-owned economy. This article traces the role of law during the first 25 years of transition and its relationship with neoliberal policies and institutions that were put in place in CEEs. It does so chronologically, through three different periods of transition, which also represent the quite different roles that the law assumed in the process.

This article reviews and analyzes the growing bodies of literature on the regulation of sorcery and witchcraft beliefs and practices. The most visible problems relating to these beliefs and practices are the violent exorcisms, banishment, torture, and killing inflicted upon those accused of practicing sorcery and witchcraft in many parts of the global South. Sorcery and witchcraft are also (once again) becoming a challenge for countries in the global North, mainly within migrant communities in relation to children accused of witchcraft and exorcized and also in the context of claims to refugee status and freedom of religion. The article covers scholarly literature (legal, anthropological, economic, historical), law reform commission reports, nongovernmental organization (NGO) reports, and UN documents over the past 15 years concerning the regulation of the negative societal impacts of sorcery and witchcraft practices and beliefs. It concludes that there is a need for greater empirical study of the impacts of various regulatory initiatives adopted and promoted by national governments, NGOs, and international organizations.

Does the process of judicial selection and retention affect the decisions made by judges? Focusing on retention rather than initial selection, this article examines whether the method of retention directly or indirectly affects decisions. Extant literature shows clear effects related to criminal cases, particularly cases involving the death penalty, but also in criminal sentencing in trial courts. At the trial court level, there are also indications of election cycle effects. At the Supreme Court level, there is also some indication of effects in abortion-related cases and in cases involving government parties. This article also looks at the impact of two process-related features of judicial elections: advertising and campaign contributions. There is little research on the advertising question but substantial research on campaign contributions. That latter literature has struggled to overcome the problem of distinguishing friendly giving from actual effects on decisions; although there are growing indications that there may be some contribution effects in some situations, the research is far from definitive.

This article examines the durability of gender inequality in private law practice since Kay & Gorman published their comprehensive review in the Annual Review of Law and Social Science in 2008. We begin with some of the changes in legal practice that intensified during the Great Recession and help to contextualize women's lack of progress. We turn next to a contemporary profile of women in private practice that demonstrates empirically where women stand. We look at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women's lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. We assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women's contributions. We consider the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes aimed at remedying the problems discussed here.

The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions. In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.

Legal socialization is the process whereby people develop their relationship with the law via the acquisition of law-related values, attitudes, and reasoning capacities. Research on legal socialization distinguishes between two different orientations toward the law: coercive and consensual. Coercive orientations are rooted in the use of force and punishment, ultimately leading to an instrumentally focused relationship built on dominance. Consensual orientations are rooted in the acquisition of values encompassing concerns over treatment, decision making, and boundaries. When authorities embody these values, they promote trust and legitimacy and foster a relationship built on shared values and the voluntary acceptance of legal authority. Despite these findings, the appropriateness of a consensual over a coercive approach is heavily contested across legal and nonlegal contexts. However, research consistently demonstrates that socializing supportive values and encouraging favorable attitudes not only motivates compliance with the law but promotes voluntary deference and willing cooperation with legal authorities.