Annual Review of Law and Social Science - Volume 14, 2018

For more than four decades, I have been studying the malleable nature of human memory. For most of this time period, I have also played a role as a consultant or expert in many legal cases that hinged on eyewitness testimony or other memory evidence. Here I describe some of the science that reveals how error prone eyewitnesses can be. Getting the legal field to recognize potential problems with memory evidence, and taking steps to solve those problems, has been a continuing struggle. It is a success story worth sharing.

Campaign finance disclosure is the last (somewhat) robust regulation we have in American campaign finance, and it is under threat. We urgently need more research on disclosure. Regulatory complexity makes studying campaign finance disclosure daunting. It also creates so-called dark money and anonymous speech online. Scholars must understand the existing regulatory loopholes as they plan studies to avoid biased estimates and understand the conditions in which their results generalize to a broader population. The court's disclosure jurisprudence is thin and based on largely unproven assumptions. As the research on campaign finance disclosure matures, scholars should take a broad view of the costs and benefits of disclosure, rather than the narrow, court-led focus many studies have had until now. We must also take seriously the ways in which cognitive limitations can limit the benefits of disclosure. I explain the doctrine and review existing studies, highlighting opportunities to expand the literature.

Research on the consequences of incarceration for inmates and ex-inmates, their families, and their communities has proliferated in just the last 20 years. Yet little of this research has documented variation across facilities in conditions of confinement or how these variations in conditions of confinement shape the consequences of incarceration for inmates and ex-inmates, their families, and their communities. Also, the conditions of confinement that have to this point been considered represent a very incomplete portrait of the range of conditions of confinement inmates could face. In this review, we fill this gap in four ways. First, we provide a partial overview of possible variations in conditions of confinement. Second, we use data from multiple years of the Survey of Inmates in Local Jails and the Survey of Inmates in State and Federal Correctional Facilities to provide an assessment of how much conditions of confinement vary across American jails, state prisons, and federal prisons, with an emphasis on variation within as well as between facility types. Third, we briefly review research on conditions of confinement in the United States and, as appropriate, other developed democracies. Finally, we conclude by providing a road map for future research to further enliven this research area.

Much of the literature explaining both mass incarceration and increasingly harsh punishment policies has been dominated by a focus on factors external to prisons, such as macrolevel explanations that point to political factors (like a popular rhetoric of governing through crime) or social structures (like the presence or absence of a strong welfare state). Where scholarship has focused on factors internal to prisons, explanations have often focused less on individual actors or correctional influence and more on processes, such as routinization, legalization, and risk management. This article argues for the importance of an additional explanatory factor in understanding the phenomenon of mass incarceration: the internal and relatively individualized influence of correctional officials, especially mid-level bureaucrats, who exercise autonomy and authority not only over prisoners and prison policy implementation but over policy initiation.

Empirical critiques of human rights have reached a crescendo. Despite their centrality in late modernity, human rights face claims of irrelevance and predictions of demise. These social science–inflected assessments follow a familiar repertoire of critique. Concerns surrounding sociological legitimacy, material effectiveness, and distributive equality are foregrounded and undergirded by a growing body of empirical evidence, especially in sociology, political science, and anthropology but also in economics and social psychology. However, the critique has also catalyzed a counter-critique. A contending body of evidence accompanied by mid-level theorizing suggests that the turn to human rights has been more successful than imagined. This paper argues that it is difficult to reach any definitive conclusion given the role of normative biases in the research and a failure to agree on common benchmarks for evaluation. Nonetheless, with an emerging postliberal order, and a deepened concern over respect for human rights in both democracies and autocracies, critiques and counter-critiques deserve consideration in ensuring that the political project of human rights is both effective and equitable.

The range of organizational responses to regulatory requirements is often explained by describing the organization as a monolithic actor interacting with external agents. We look inside regulated organizations, recognizing them as a web of transactions and norms, to examine how formal and informal organizational practices transform regulatory requirements into normalized activity. This article identifies four levers used at the coalface—or frontline—of the organization to encourage compliance in organizations: nudge (individual), bureaucracy (roles, rules, and procedures), relational governance (network), and organizational culture (assumptions, values, and artifacts). We map the range of research on coalface governance while displaying the assumptions and implications of each lever often embedded in recommendations to policy makers or organizational managers. We offer this continuum of techniques to invite a richer conversation about ways of pursuing compliance in organizations.

The central puzzle of the law of the dead is that a corpse is both a person and a thing. A dead human body is a material object—a messy, maybe dangerous, perhaps valuable, often useful, and always tangible thing. But a dead human being is also something very different: It is also my father, and my friend, perhaps my child, and some day, me. For even the most secular among us, a human corpse is at the least a very peculiar and particular kind of thing. Scholars generally divide the law of the dead body into the three intertwined realms of defining, using, and disposing of the dead, and debates in each realm center on where and how to draw the line between person and object. The thing-ness of the dead human body is never stable or secure.

Questions pertaining to the role of nonhumans in law shed light on some of the most fundamental assumptions and constructions of contemporary modern law. I start by reviewing the traditions of animal welfare and animal rights in legal studies and by discussing the constitutional frameworks that contend with the animal. Then, I move beyond the individual-based discourse of much existing animal law to contemplate ecological traditions that consider nonhuman populations and species as well as land ethics and ecosystem management. Next, I review the rich literature that has emerged in the last two decades in critical theory, mainly posthumanism and its subtraditions of animal geographies and multispecies ethnography. Finally, I sketch visions of more-than-human legalities that push beyond the limitations of existing (neo)liberal legal traditions, pausing to consider what ocean, or blue, legalities might look like. Throughout, I argue that we need to move toward a dynamic and pluralistic approach that acknowledges the myriad ways of being in the world, their significance to law, and, in turn, law's significance to these other modes of existence.

This article reviews the international evidence on the potential nature, sources, and consequences of police and legal legitimacy. In brief, I find that procedural justice is the strongest predictor of police legitimacy in most of the countries under investigation, although normative judgements about fair process may—in some contexts—be crowded out by public concerns about police effectiveness and corruption, the scale of the crime problem, and the association of the police with a historically oppressive and underperforming state. Legitimacy tends to be linked to people's willingness to cooperate with the police, with only a small number of national exceptions. There is also a fair amount of evidence that people who say they feel a moral duty to obey the law tend also to report complying with the law in the past or intending to comply with the law in the future. The main argument is, however, that international enthusiasm for testing procedural justice theory is outpacing methodological rigor and theoretical clarity. On the one hand, the lack of attention to methodological equivalence is holding back the development of a properly comparative cross-national analysis. On the other hand, the literature would benefit from (a) greater delineation between legitimation (the bases on which citizens judge the rightfulness of an institution) and legitimacy (the acceptance or rejection of the rightfulness of an institution and the normatively grounded duty to obey), (b) stronger differentiation between police and legal legitimacy, and (c) more attention given to isolating the mechanisms through which rightfulness and consent motivate cooperation and compliance.

This review outlines an emerging agenda for ethnographic interpretation of the rule of law. From a survey of studies done on the rule of law in Africa, Asia, Europe, and the Americas, the review identifies four general characteristics of this mode of inquiry, namely, that it is located, relational, and comparative and has extrinsic value. It offers three nonexhaustive reasons for interpreting the rule of law ethnographically, which are as a counterhegemonic practice, in response to counterintuitive observations, and as a means to do constitutive theorizing. Contending that ethnographic work on the rule of law involves some kind of stance toward both research subjects and object of inquiry, the review advocates for the exercise of passionate humility: a conviction about the rule of law tempered by willingness to be proven wrong through inquiries in critical proximity with socially and politically mediated facts. Rule-of-law ethnography's possibility lies in its attending to the relationship between what is claimed in the rule of law's name and what is realized, not to make the idea look foolish, but to show how it emerges and why it persists through struggle.

This article analyzes the implications of the Anthropocene for the governance of security. Drawing on environmental law, green criminology, and international relations, the article examines the development of environmental security scholarship over recent decades and shows similarities and differences in perspectives across the three disciplines. It demonstrates that the Anthropocene represents a significant challenge for thinking about and responding to security and the environment. It argues a rethinking is needed, and this can benefit from reaching across the disciplinary divide in three key areas that have become a shared focus of attention and debate regarding security in the Anthropocene. These are, first, examining the implications of the Anthropocene for our understanding of the environment and security; second, addressing and resolving contests between environmental securities; and third, developing new governance responses that mix polycentric and state-backed regulation to bring safety and security to the planet.

This article focuses on how judges present arguments in written opinions and whether the predominant style of argumentation promotes the legitimacy of the judiciary. Judicial opinions are habitually unequivocal, overstated, and lacking of any doubt that the singularly correct decision was reached. Studies examining the effect of argumentation in judicial opinions are limited but generally suggest that furnishing a monolith of reasons does not have persuasive power. In contrast, opinions that acknowledge the complexity and indeterminacy of the decision do have a salutary effect on legitimacy for those who disagree with the outcome of the decision. However, a much larger and more consistent finding is that legitimacy is determined by whether one agrees or disagrees with the outcome of the decision, not the reasons underlying the outcome. The study of public reactions to judicial opinions is important and in its infancy. Avenues for future empirical research are discussed.

Judicial decisions play an important role in shaping public policy. Recognizing this, interest groups and other entities lobby judges in an attempt to translate their policy preferences into law. One of the primary vehicles for doing so is the amicus curiae brief. Through these legal briefs, amici can attempt to influence judicial outcomes while attending to organizational maintenance concerns. This article examines scholarship on the use of amicus briefs pertaining to five main areas: (a) why amicus briefs are filed, (b) who files amicus briefs and in what venues, (c) the content of amicus briefs, (d) the influence of amicus briefs, and (e) normative issues implicated in the amicus practice. In addition to presenting a critical review of the scholarship in these areas, this article also provides suggestions for future research on amicus briefs.

The contemporary American jury is more inclusive than ever before, although multiple obstacles continue to make racial and ethnic representation a work in progress. Drastic contraction has also occurred: The rate of jury trials is at an all-time low, dampening the signal that jury verdicts provide to the justice system, reducing the opportunity for jury service, and potentially threatening the legitimacy of judgments. At the same time, new areas of jury research have been producing important explanations for how the jury goes about reaching its verdict in response to challenging questions, like how to assess damages. Yet the persistent focus on individual juror judgments as opposed to decision making by the jury as a group leaves unanswered important questions about how jury performance is influenced by a primary distinctive feature of the jury: the deliberation process.

This review starts with a historical overview of trial by jury and then moves to a discussion of media and communication. This is followed by an examination of the advantages and disadvantages associated with jurors and digital technology. The heart of the article is a review of six scholarly studies that attempt to explain why jurors use the Internet, as well as methods for combating such use. The article concludes with recommendations for future areas of research.

Experiments are essential to the practice of democratic deliberation, which itself is an experimental remedy to the problem of self-governance. This field, however, is constrained by the impossibility of conducting ecologically valid experiments that take into account the full complexity of deliberative theory, which spans different levels of analysis and has a multidimensional variable at its core. Nonetheless, informative patterns have emerged from the dozens of lab studies, survey experiments, and quasi-experiments in the field conducted to date. This body of work shows the feasibility of gathering diverse samples of people to deliberate, but it also underscores the difficulties that arise in deliberation, including extreme disagreement, poor conflict management, and how a lack of diversity can forestall meaningful disagreement. When public engagement strategies and discussion formats mitigate those hazards, deliberation can improve participants’ understanding of issues, sharpen their judgments, and change their attitudes toward civic engagement. Well-publicized deliberative minipublics can even influence wider public opinion and voting intentions.

Law enforcement agencies increasingly use big data analytics in their daily operations. This review outlines how police departments leverage big data and new surveillant technologies in patrol and investigations. It distinguishes between directed surveillance—which involves the surveillance of individuals and places under suspicion—and dragnet surveillance—which involves suspicionless, unparticularized data collection. Law enforcement's adoption of big data analytics far outpaces legal responses to the new surveillant landscape. Therefore, this review highlights open legal questions about data collection, suspicion requirements, and police discretion. It concludes by offering suggestions for future directions for researchers and practitioners.

Elite economists and lawyers contend that occupational licensure raises consumer prices and unemployment. Billed as a bipartisan boost to market competition, this technocratic policy agenda rests on thin empirical foundations. Studies of the wage effects of licensing rarely couple this analysis of its putative costs with convincing analysis of the benefits of the professional or vocational education validated via licensure. While some licensing rules may be onerous and excessive, licensing rules are inadequate or underenforced in other labor markets. Furthermore, by limiting labor market entry, occupational licensing rules, like minimum wage and labor laws, can help stabilize working- and middle-class wages. Although current antitrust law provides an ideological framework for technocratic attacks on licensing, it is fundamentally unsuited for evaluation of labor markets. Contemporary antitrust law's arcane concept of efficiency reflects neither the legislative objectives animating the antitrust statutes nor popular understanding of what competition policy should do.

The signature feature of twenty-first-century international cooperation is arguably not the regime but the regime complex. A regime complex is an array of partially overlapping and nonhierarchical institutions that includes more than one international agreement or authority. The institutions and agreements may be functional or territorial in nature. International regime complexity refers to international political systems of global governance that emerge because of the coexistence of rule density and regime complexes. This article highlights insights and questions that emerge from the last 15 years of scholarship on the politics of international regime complexity, explaining why regime complexes arise, what factors sustain them, and the range of political effects regime complexity creates. Our conclusion explains why, in a post-American world order, the trend of greater international regime complexity will likely accelerate.