Annual Review of Law and Social Science - Volume 15, 2019

Susan Silbey began her academic training in political science and in the course of her studies became a sociologist of law, the last two decades as a member of the Massachusetts Institute of Technology's anthropology department and management school. The disciplinary transformations ground, in part, her attention to the ways in which the everyday life of scholarship has led her to study the everyday life of the law. In this article, she describes her scholarly life through seven chapters of relatively distinct challenges and themes. Across the arc of her life, she identifies the recurrent influence of both serendipity and theoretical inference acting within the immediate constraints of family and personal capacity. Reading across descriptions of her work on regulatory enforcement, dispute negotiation and mediation, and popular legal culture and consciousness, she points to the necessity of reconciling on-the-ground vicissitudes of doing legal work with the theories and narratives social scientists construct to make sense of institutions and history. She muses on theoretical attempts to align the particular and the general, the micro and macro forces working in legal cultures, and concludes by celebrating the ubiquity of social ordering whose own momentum both seduces and frustrates social scientists.

Cepeda Espinosa reflects on how the social sciences, especially the theories of Philip Selznick on responsive law, influenced his approach to constitution making and institutional design, when he worked as presidential advisor to two Colombian presidents, as well as to constitutional adjudication, when he was a justice of the Constitutional Court. He also discusses how responsive constitutionalism has had a transformative impact in Colombia on the role of judges, the development of innovative legal notions, the design and implementation of public policies, and society at large.

Populism is Janus-faced. There is not a single form of populism but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: democratic and antiestablishment populism, which combines elements of liberal and democratic convictions. When we examine the relationship between populism and constitutional democracy, populism should not be considered in isolation from its host ideology. Examples of democratic, liberal, socially inclusive forms of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism. However, the paucity of democratic populism also suggests that we have to look at factors other than ideology to understand why nativist and authoritarian populism currently dominates the political scene. Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism and, consequently, to devise an appropriate democratic alternative to authoritarian populism. The ascendancy of right-wing nationalist populism today is a symptom of the failure of progressive politics.

Commentators routinely describe “populism” as vague. Some argue that the early US populists, who coined the modern usage, were not populists. We disagree and identify this common conceptual core: the “people” in a moral battle against “elites.” The core definition fits all cases of populism: those on the left and right, those in the United States, Europe, and elsewhere. In addition to this minimal common core, we identify strongly suggested and frequently correlated non-core characteristics. These include the people's homogeneity and exclusivity, direct rule, and nationalism, as well as a single leader, vilification of vulnerable out-groups, and impatience with deliberation. The US Populist Party and Spain's Podemos Party fit the core definition but have few of the other characteristics. The core can be good for democracy, we argue, while the associated characteristics are often dangerous. Populism in opposition can be good for democracy, while populism in power carries great risks.

The resurgence of populism in Europe and North America is widely thought to have placed the rule of law under pressure. But how many of the relevant developments are indeed associated with populism? And is any such association a contingent or analytic matter: Does populism inevitably threaten the rule of law, or do other conditions intervene to shape its impact? After setting out how I understand the rule of law and populism, I examine the ways in which contemporary populist discourse has challenged the rule of law through a variety of mechanisms—notably agenda setting, policy impact, influence on discretionary decisions, and convention trashing—considering the institutional and social conditions that conduce to strengthen or weaken these mechanisms in particular contexts. Finally, I consider the implications of the analysis for contemporary criminalization, assessing how many of the factors producing penal populism or overcriminalization are truly a product of populism.

During the summer of 2018, the US government detained thousands of migrant parents and their separated children pursuant to its zero-tolerance policy at the United States–Mexico border. The ensuing media storm generated unprecedented public awareness about immigration detention. The recency of this public attention belies a long-standing immigration enforcement practice that has generated a growing body of research in the past couple of decades. I take stock of this research, focusing on the causes, conditions, and consequences of immigration detention in the United States. I also discuss critical tasks for future research, including (a) examining the role of local governments, the private prison industry, and decision makers responsible for release decisions in maintaining the detention system; (b) extending the field of inquiry to less-visible detainee populations and detention facility guards and staff, for a fuller understanding of detention conditions; and (c) investigating not only direct but also indirect consequences of detention.

Socio-legal scholars have long been interested in the relationship between law and morality. This article uses a multilevel approach to understanding this relationship by focusing on health care professionals, key actors in an institution that covers broad swaths of social life and that serves as a key site of moral meaning making and practice. I demonstrate how morality and law interface differently at three levels: through daily social interaction, during which providers assess patients’ deservingness while patients attempt to present themselves as morally worthy; through organizational structures and processes that establish legalistic rules and bring diverse workers into shared space; and through field-level legal and moral infrastructures that shape frontline decision making and that change due to social movement mobilization. The article concludes by describing the benefits of a multilevel approach to examining the interplay between law, morality, and health care work and suggesting strategies for theoretically investigating these relationships more completely.

David J. Rothman's The Discovery of the Asylum, one of the first major works to critically interrogate the beginning of America's extensive reliance on institutionalization, effectively launched the contemporary field of prison history. Rothman traced the first modern prisons’ (1820s–1850s) roots to the post-Revolution social turmoil and reformers’ desire for perfectly ordered spaces. In the nearly 50 years since his pioneering work, several generations of historians, inspired by Rothman, have amassed a wealth of information about the early prisons, much of it correcting inaccuracies and blind spots in his account. This review examines the knowledge about the rise of the prison, focusing on this post-Rothman work. In particular, this review discusses this newer work organized into three categories: the claim that prisons were an invention of Jacksonian America, reformers’ other motivations for creating and supporting prisons, and the frequently gendered and racialized experiences of prisoners. The review closes by reflecting on the importance of prison history in the contemporary context and suggesting areas for future research.

A growing body of empirical studies has provided important insights into our understanding of the causes and effects of codified human rights. Yet empirical research has treated human rights treaties and constitutional rights as separate domains, even though the two regimes offer many of the same rights protections and can interact and reinforce each other. In this article, we review these two bodies of literature, focusing on two lines of inquiry: studies that (a) treat rights commitments as the outcome to be explained and (b) examine the consequences of these commitments for state behavior. Some broad insights emerge from these literatures. First, the literatures adopt different orientations to explaining why states commit themselves to legal rights. Second, the effect of both human rights treaties and constitutions is usually small and contingent on certain legal and political environments. This review concludes by synthesizing debates over the most effective methods for measuring rights performance and for gauging causal effects.

Field-based research lies at the heart of human rights discourse and practice. Yet, there is a lack of consistency and coherence in the methodologies used and inadequate transparency regarding research methods in most human rights reporting. This situation opens work up to multiple challenges as to quality, veracity, and legitimacy. Although there have been repeated calls for greater methodological rigor through universal standards, general principles, and guidelines, human rights research remains diverse, uncoordinated, and disparate. This article explores these issues in relation to fact-finding, measuring violations, truth commissions, and emerging tools and technologies. It reviews how methodological debates reflect significant divisions among disciplines, differences in goals and objectives, distinct interests among various actors and organizations working on these issues, and the overall complexity of human rights research. The article argues against implementing universal research practices and for creatively and openly engaging debates regarding field-based methods. Such efforts can provide an essential corrective to unquestioned assumptions, enable greater transparency, and improve the overall quality and comparative value of human rights research.

This review addresses food as a topic of sociolegal studies. We show that the divide between production and consumption in law and social science is increasingly untenable in the context of contemporary globalizing, industrializing food chains underpinned by a productivist ideology and supported by a consumptogenic cultural economy. Sociolegal studies of food are well-suited to grappling with the complexity of production–consumption dynamics through regulatory governance studies of hybridized (public and private) supply chain standards. Yet we argue for an expanded focus on the embeddedness of food chains in social, political, and, importantly, ecological food webs. We suggest that sociolegal studies into ecologically based regulation, countermovements, and an expansive version of the human right to food (that includes nature and animals) can particularly contribute to an understanding of the possibilities for regulating capitalism by seeking to constrain globalizing, industrialized food chains.

This review describes the ways in which contemporary forms of prejudice and stereotypes, which are often subtle and unconscious, give rise to critical problems throughout the legal system. This summary highlights dominant themes and understudied issues at the intersection of legal and psychological research. Three areas of focus are considered: law enforcement (policing), legal decision making, and the legal profession. Recommendations for future research and practice are offered.

Intersectionality as a framework and praxis has gathered significance in law and the social sciences over the past 20 years. This article begins by reviewing how intersectionality has been conceptualized, as well as the implications of varying definitions attributed to intersectionality. We then explore applications of intersectionality, first in research that focuses on uncovering processes of differentiation and systems of inequality across a range of topics, including reproductive rights, colonization, religion, immigration, and political behavior. After examining these processes and systems, we turn to a second research approach that focuses on categories of difference and between-category relationships. We find that despite different views on conceptualization, application, and implications, intersectionality may nevertheless open new avenues of inquiry for scholars as well as opportunities for transformative coalition building in social movements and grassroots organizations.

The German sociologist Norbert Elias developed a wide-ranging sociological analysis of the interconnections between processes of state formation, institutional dynamics, and individual subjectivity, or habitus, and the logic of their processes of transformation over time. His work has had significant impact on social scientific thought in a wide variety of fields, including the historical sociology of the self, violence, crime and punishment, organizations, emotions, sexuality, social control, and sport. His influence in legal scholarship, however, has concentrated in criminology, with only sporadic use of his ideas in relation to other topics in law and social science research. This review highlights the ways in which Elias can be read as a theorist of regulation by outlining (a) the core elements of Elias's “process-figurational” sociology and his analysis of processes of civilization and decivilization; (b) Elias's observations on law and state formation; (c) a selection of the sociolegal research related to his sociological approach, in fields such as crime and punishment, evolving modes of regulation, and international relations; and (d) the potential future directions in which Elias's process-figurational approach might move in sociolegal research and scholarship. These include the emotional dimensions of family law, human rights and humanitarianism, the intersections of legal evolution and broader processes of social change, legal pluralism and legal culture, tort law, constitutionalism, and the rule of law.

Refugees have an increasing global significance, as their numbers continue to grow and the nature of displacement continues to evolve. Different international, state, and local laws and policies play a part in refugee crises. On the one hand, then, it is important to theorize the role of the law in shaping different formations of displacement; on the other, it is also crucial to address how the people involved in these crises (government officials, street-level bureaucrats, forced migrants, and receiving populations) engage with the law. We highlight and develop three areas of sociolegal inquiry that can push forward the study of the law and politics of refuge: (a) the uneven geography shaping the global humanitarian machine; (b) the local contexts within which such a machine operates, interacting with different actors’ conceptualizations of justice; and (c) the distinct dilemmas that the urban environment poses to both refugees and humanitarians. Advancing these areas of sociolegal inquiry requires enriching established theoretical sources in refugee studies with both neglected ones, such as postcolonial theory and Pierre Bourdieu's sociology of forced displacement, and newer ones, such as Didier Fassin's anthropology of morality and pragmatic sociology of ordinary judgments of fairness.

Despite a long history of reform efforts, college students remain vulnerable to sexual harassment and assault on campus. This article surveys that history from the 1970s to the present, including a flurry of enforcement activity under President Obama and a backlash and reversed course under Trump. Many of the systems—for example law, education, and public health—designed to ameliorate the epidemic of campus sexual assault have failed to do so. These failures have been particularly pronounced for victims who experience multiple intersecting inequalities. The resulting frustration with legal remedies through campus Title IX processes and the criminal and civil justice system has spurred a new interest in strategies to prevent sexual assault in the first place. Recent political developments, including the #MeToo movement, suggest a potential for democratic political accountability to make progress where legal reform efforts and campus prevention programming have thus far been unsuccessful.

Legal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars—identified here as the Identity, Hegemony, and Mobilization schools—are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a monolithic approach. Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples and non-Western settings. Through their findings, and as a result of broader trends across the social sciences, relational legal consciousness has taken on greater importance. Legal consciousness research should be imagined on a continuum ranging from individualistic conceptualizations of thought and action to interactive, co-constitutive approaches.

Studies about authoritarianism build the foundation of legal mobilization scholarship and continue to advance this area of sociolegal research. The contributions of these studies become apparent when we view authoritarianism as a phenomenon found in all societies. Authoritarian regimes exist as nation states and as enclaves, such as subnational territories, institutions, and social spaces. Scholars who examine whether and how people use the law in diverse authoritarian settings bring out the malleable, situational, and plural nature of legal power. Law, in collaboration or complicity with other sources of power, can impede legal mobilization. Nevertheless, individuals and groups can use the law to challenge authoritarianism by carrying out formal, quasi-formal, or nonformal legal actions, an array of strategies and tactics that encompass more than courtroom litigation. Overall, the outcomes of legal mobilization under authoritarianism are mixed and paradoxical. Sometimes law can benefit disadvantaged populations living under authoritarianism. However, law is also criticized for being ineffective, even harmful. Examined in light of the notion that authoritarianism is all over, legal mobilization research offers keen reflections on the study of legal power.

This article surveys recent work on the role of law in determining economic aggregates such as gross domestic product, unemployment, inflation, and productivity growth. We provide a brief overview of macroeconomics and discuss how legal interventions and institutional arrangements such as monetary, fiscal policy, financial regulation, and other legal changes can stabilize business cycles. Finally, we discuss the role of the law in promoting economic growth.

The Ferguson Report became a watershed moment for understanding the costs and consequences of the monetary sanctions system for communities of color. Since that time, myriad reports, studies, and commissions have uncovered evidence that suggests that Ferguson, Missouri, was not an outlier but rather part of a broader set of systems throughout the country that relied on increasingly punitive assessment and collection strategies for revenue. The growth and expansion of these systems continue to have detrimental and widespread consequences. In this article, we aim to shed light on the current state of monetary sanctions as the full scope and damage of the monetary sanctions system come better into focus on the national, state, and local level. We explore the legal challenges and legislative reforms that are attempting to reshape the landscape of monetary sanctions and lessen the burden on economically disadvantaged individuals and communities of color.