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

This review examines the workings of jurors deciding criminal cases. It seeks not to commend or condemn jury decision making but rather to offer an empathic exploration of the task that jurors face in exercising their fact-finding duty. Reconstructing criminal events in the courtroom amounts to a difficult feat under the best of circumstances. The task becomes especially complicated under the taxing conditions of criminal adjudication: the often substandard evidence presented in court; the paucity of the investigative record; types of evidence that are difficult to decipher; the unruly decision-making environment of the courtroom; and mental gymnastics required to meet the normative demands of criminal adjudication. The critical spotlight is directed not at the jurors but at the conditions under which we expect them to fulfill their duty and at the unverified reverence in which their verdicts are held. The article concludes with a set of recommendations designed to assist our fact-finders in meeting the societal expectations of this solemn task.

Peripheral international legal histories are considered a new subfield of the discipline's historiography, though there is no defined canon, chronology, or accepted set of theoretical questions or conflicts. Despite the absence of an established literature, this review argues that peripheral histories of international law challenge the linear narrative that a European international legal system was unquestioned and easily incorporated by the new non-European states that surged in the nineteenth and twentieth centuries. This overview looks at several forms of approaching the literature that differ in methodology but share a (partial or complete) challenge to a coherent universal international law and a homogeneous forward-looking global project.

This article offers an overview of and commentary on the US approach to corporate prosecution and punishment. Though the United States purports to have a vigorous system of corporate criminal law enforcement, one could reasonably ask whether that system actually takes corporate crime seriously. Corporate prosecutions, convictions, and punishment continue to be rare events. Sanctions leveraged against corporations range from those whose effectiveness remains unproved, to those that are provably ineffective, to those that are conceptually and practically incoherent. One could also reasonably ask to what extent the United States even has a corporate criminal law to enforce. The recent history of corporate criminal law enforcement reflects a discernable shift in discretion from judges to prosecutors. This period is marked by the importance of extralegal prosecutorial guidelines, the absence of controlling case law, large gaps in statutory law, and long-called-for law reforms. One result is a systematic shift from reliance on public enforcement to private self-regulation. Not only are the resulting costs to the private sector substantial and growing, but the problems with relying on corporations to police themselves are plain to see. Amid these challenges, the thirst for private-sector responsibility and accountability should motivate continued debate over the prosecution and punishment of corporations.

Racial innocence is the practice of securing blamelessness for the death-dealing realities of racial capitalism. This article reviews the legal, social scientific, and reformist mechanisms that maintain the racial innocence of one particular site: the US carceral state. With its routine dehumanization, violence, and stunning levels of racial disparity, the carceral state should be a hard test case for the willful unknowing of obvious devastation. Nonetheless, the law presumes “no racism,” condones racial profiling, and interprets racial disparity in policing and imprisonment as evidence of true racial difference in criminality, not discrimination. Prominent social science research too often mimics these practices, producing research that aids in the collective erasure of racism.

Militant organizations and rebel groups are an enduring feature of political life in much of the world. As scholars pay greater attention to rebel governance strategies, the role of law and courts is coming to the fore. We observe a good deal of variation across rebel groups in terms of their legal infrastructure and its organizational differentiation. This article surveys the recent literature and develops a framework for understanding why rebel groups vary in their use of law and also explores the consequences of legal governance for subject populations, for rebels themselves, and for external actors.

The debates about right-to-work (RTW) laws have raged for decades. Conservatives have long argued that a freedom principle prohibits employees from being required to pay dues even when a union represents them. Unions and their allies counter that RTW laws are actually intended to minimize the bargaining and political power of labor unions. This article outlines the ideology and impact of RTW laws in the United States. As constitutional challenges to fair share fees continue and state legislatures gradually pass RTW laws, there are many studies on the impact of RTW laws on wages and unionization, but the impact on politics is more mixed. This article analyzes the data nationally but also points to some conditions in which RTW laws may not have the impact that either their proponents or detractors predict. Literature on the topic has considered the following questions: (a) whether wages and working conditions in RTW states are lower than in non-RTW states, (b) whether such laws have the intent and effect of weakening worker-friendly candidates politically, and (c) whether legal interpretations of agency fees or fair share fees are correct. Drawing on the literature in each of these areas, I explore areas of future research and offer conclusions about the state of the literature, as well as the public perceptions of RTW.

Money has remained closely connected to political sovereignty even as polities changed from empires and kingdoms to dictatorships and democracies, and as money shifted from coin to paper and now to digital currency. Money constitutes a claim on value in exchange and a store and measure of value, so we consider the role law plays in these three articulations between money and value. We examine research on different instances of legal control over official currency, monetary innovations, standards of monetary measurement and valuation, counterfeiting, terror financing, and money laundering to show how the relationship between money and law has evolved in response to changes in international law, national sovereignty, and global markets.

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

Should legal rules be used to redistribute income? Or should income taxation be the exclusive means for reducing income inequality? This article reviews the legal scholarship on this question. First, it traces how the most widely cited argument in favor of using taxes exclusively—Kaplow & Shavell's (1994) double-distortion argument—evolved from previous debates about whether legal rules could even be redistributive and whether law and economics should be concerned exclusively with efficiency or with distribution as well. Next, it surveys the responses to the double-distortion argument. These responses appear to have had only limited success in challenging the sturdy reputation of the double-distortion argument. Finally, it highlights new directions in a debate revived by increasing economic inequality.

In examining how laws and legal institutions move across jurisdictions, comparative law scholars have employed the metaphor of a legal transplant to conceptualize both the hazards and benefits of taking in another legal system's rules. As law and society scholars become increasingly interested in the international domain, they will naturally seek out disciplines that have grappled with issues of law and culture, diffusion of governance structures, and the social processes involved in transnational lawmaking. We can thus learn a great deal from the rich literature on legal transplants. However, we should also be wary of its anemic examination of relations of power and strive to employ empirical methods to measure the social forces and factors involved. This article gives an historical overview of the key developments and debates within the legal transplant literature and suggests new directions for further research intended for a sociology of the movement of law.