Annual Review of Law and Social Science - Volume 16, 2020

We call for a further appreciation of the versatility of concepts and methods that increase the breadth and diversity of work on law and social science. We make our point with a review of legal cynicism. Legal cynicism's value, like other important concepts, lies in its versatility as well as its capacity for replication. Several classic works introduced legal cynicism, but Sampson & Bartusch named it. Kirk & Papachristos used a cultural framework to broaden it and added essential measures of perceived unresponsiveness and incapacity of police to ensure neighborhood safety and security. A structural theory of legal cynicism explains minority residents’ skepticism of, and desperate reliance on, police in the absence of alternative sources of safety. Historical and ethnographic studies play especially important roles in broadening the versatility of legal cynicism for the study of crime and responses to it.

Climate change litigation has grown exponentially in the last decade, paralleled by the emergence of a rich legal and social sciences literature assessing these cases. Building on a recent review in WIRES Climate Change, this article evaluates the growth of this literature and the key themes it highlights. In 2019, climate litigation literature experienced substantial growth, with a focus on multiple novel dimensions: new high-profile judgments; emerging legal avenues, types of actors, litigation objectives, and jurisdictions, especially those in the Global South; and additional interdisciplinary analyses. Just as in the underlying case law, climate litigation scholarship shows evidence of distinct but overlapping waves that build together in a manner similar to a harmonic chord. Even so, this literature has not yet engaged deeply with questions about the effectiveness of climate litigation as a governance tool, particularly in the context of the decentralized system formalized with the 2015 Paris Agreement.

The digitization of legal texts and advances in artificial intelligence, natural language processing, text mining, network analysis, and machine learning have led to new forms of legal analysis by lawyers and law scholars. This article provides an overview of how computational methods are affecting research across the varied landscape of legal scholarship, from the interpretation of legal texts to the quantitative estimation of causal factors that shape the law. As computational tools continue to penetrate legal scholarship, they allow scholars to gain traction on traditional research questions and may engender entirely new research programs. Already, computational methods have facilitated important contributions in a diverse array of law-related research areas. As these tools continue to advance, and law scholars become more familiar with their potential applications, the impact of computational methods is likely to continue to grow.

Extensive urbanization and the consequent rise of megacities are among the most significant demographic phenomena of our time. Our constitutional institutions and constitutional imagination, however, have not even begun to catch up with the new reality. In this article, I address four dimensions of the great constitutional silence concerning the metropolis: (a) the tremendous interest in cities throughout much of the social sciences, as contrasted with the meager attention to the subject in constitutional theory and practice; (b) the right to the city in theory and practice; (c) a brief account of what national constitutions actually say about cities, and more significantly what they do not; and (d) the dominant statist stance embedded in national constitutional orders, in particular as it addresses the sovereignty and spatial governance of the polity, as a main explanatory factor for the lack of vibrant constitutional discourse concerning urbanization in general and the metropolis in particular.

Despite the absence of a right to a healthy environment in the Universal Declaration of Human Rights or any global human rights treaty, environmental human rights law has rapidly developed over the past 25 years along three paths: (a) the widespread adoption of environmental rights in regional treaties and national constitutions; (b) the greening of other human rights, such as the rights to life and health, through their application to environmental issues; and (c) the inclusion in multilateral environmental instruments of rights of access to information, public participation, and access to justice. After describing these developments, this review assesses the possible effects of UN recognition of the human right to a healthy environment, both on the environment and on human rights law itself.

This article uses oral histories of surviving founders to explore the emergence of law and society as a scholarly movement and its transformation to a scholarly field. The oral histories we draw on come from a unique public archive of interviews with founders of law and society titled Conversations in Law and Society, which is maintained by the Center for the Study of Law & Society (CSLS) at the University of California, Berkeley. We supplement and triangulate the CSLS oral histories with published sources that recount the history of law and society research. Our discussion begins with a brief review of the oral history approach and how the CSLS archive was constructed. We draw on the social movements literature to trace the emergence of the law and society field as a scholarly movement, showing how the movement drew strength from the political opportunities of the 1960s and 1970s; the mobilizing structures through which scholars created space for research and training; and the framing processes that crystallized the meanings, identities, and sentiments of the movement. We then present the founders’ perspectives on the characteristics of law and society as it became a scholarly field.While never becoming institutionalized as a discipline in the academy, law and society nonetheless spawned other scholarly movements and continues to influence research and teaching in social science disciplines and in law schools.

This review collects initiatives and legal decisions designed to mitigate discrimination in pretrial decision making, jury selection, jury unanimity, and jury deliberations. It also reviews initiatives to interrupt implicit racial biases. Among these, Washington's new rule for jury selection stands alone in treating racism as the product of both individual actors’ decisions and long-standing legal structures. Washington's rule shows the limits of recent US Supreme Court decisions addressing discrimination in cases with unusual and clearly problematic facts. The court presents these cases as rare remediable aberrations, ignoring the well-documented history of racism in jury selection. The final section juxtaposes limited reforms with the contemporary prison abolitionist movement to illuminate boundaries of incremental reforms. Reforms must reflect cognizance of the extent to which racism exists at multiple levels. Reforms that do not are less likely to make change, because they are either narrow in scope or focused on discrimination by individuals.

The last two decades have seen an unprecedented proliferation of ethnographies of policing in many parts of the world. Implicit in the body of this new work is the continuation of an old and perhaps irresolvable debate on what policing is: the extralegal subjugation of subordinate populations or an agency whose authority is highly restricted by the norms of civilian populations. I argue that the best way to tackle this debate is to further develop the incipient practices of global ethnography, that is, to understand local practices via their global histories.

Forensic accounting serves as a regulatory and investment tool that allows interested professionals to predict whether firms are engaged in financial reporting misconduct. Financial reporting misconduct has severe economic and personal consequences. Not only does such misconduct distort the allocation of economic resources, but investors and employees of these firms incur substantial financial and psychological harms. In essence, forensic accounting aims to mitigate these harms by predicting the likelihood a firm has committed financial reporting misconduct—thus allowing for early detection of such misconduct. In this review, I provide an overview of the most popular forensic accounting techniques in the literature and the effectiveness of such techniques. Although traditional forensic models tended to focus on behavioral characteristics of the executives who commit financial misconduct or to take a purely numerical approach based on financial data, more recent models combine big data analysis with psychological intuitions.

Precariously housed people face serious challenges in securing their personal possessions from the actions of both private and public actors. This is despite evidence of widespread destruction, seizure, and theft; associated violations of equality and dignity rights; the significance of the belongings to their owners; and the heightened vulnerability that the loss of their belongings may place people in. Law seems to provide minimal recognition and protection of precariously housed people's possessions. There is a significant lack of scholarly and policy attention given to the issue. We lay out some preliminary concepts for the analysis of this important topic, focusing on critical legal geography, evaluation, governance, and personhood, before introducing our own research project.

This review is about scholarly contributions to a hotly debated issue—gun policy. Teasing apart the politics of evidence within gun politics, it examines both how research agendas shape gun policy and politics as well as how gun policy and politics shape research agendas. To do so, the article maps out two waves of gun research, Gun Studies 1.0 and Gun Studies 2.0. Gun Studies 1.0 emphasizes scientific evidence as a foundation for generating consensus about public policy, and it includes criminological studies aimed at addressing guns as criminogenic tools, public health work aimed at addressing guns as public health problems, and jurisprudential scholarship aimed at adjudicating guns as legal objects. Reviewing how these approaches incited popular debates and public policies that, in turn, shaped subsequent conditions of gun scholarship, the article then turns to Gun Studies 2.0. Instead of taking evidence as self-evident, this body of scholarship tends to prioritize the meaning-making processes that make meaningful—or not—evidence surrounding gun policy. Accordingly, Gun Studies 2.0 unravels the political and cultural conditions of the contemporary US gun debate and broadens inquiries into gun harm and gun security. In addition to discussing areas for future study, this study concludes by encouraging gun researchers to attend to the politics of evidence as they mobilize scholarship not just to inform the gun debate but also to transform it.

Healthy development is a fundamental right of the individual, regardless of race, ethnicity, or social class. Youth require special protections of their rights, in part owing to vulnerabilities related to psychological and brain immaturity. These rights include not only protection against harm but opportunities for building the cognitive, emotional, and social skills necessary for becoming a contributing member of society. They apply to all youth, including those within the adult criminal justice system, which raises the legal question of when adult capacity and responsibility begin and special protections are no longer warranted. This article highlights (a) empirical findings from developmental science on when psychological and neurobiological development reaches maturity; (b) the extent to which this scientific knowledge guides current policies and practices in the treatment of youth in the United States; and (c) emerging policies in the treatment of young people in the justice system based on developmental science.

This review surveys contemporary challenges in the field of technology and human rights. The increased use of artificial intelligence (AI) in decision making in the public and private sectors—e.g., in criminal justice, employment, public service, and financial contexts—poses significant threats to human rights. AI obscures and attenuates responsibility for harms in ways that undermine traditional mechanisms for holding wrongdoers accountable. Further, technologies that scholars and practitioners once thought would democratize human rights fact finding have been weaponized by state and non-state actors. They are now used to surveil and track citizens and spread disinformation that undermines public trust in knowledge. Addressing these challenges requires efforts to ensure that the development and implementation of new technologies respects and promotes human rights. Traditional distinctions between public and private must be updated to remain relevant in the face of deeply enmeshed state and corporate action in connection with technological innovation.

This review examines the state of scholarship on the politics of injury law, a relatively neglected field. I argue that injury law is an important site of political contestation, particularly for social and economic minorities, that should receive much more attention from law and social science scholars. Drawing on past research from other areas of legal inquiry, especially rights litigation, I suggest that the political significance of injury law tracks along two key dimensions—the institutional and the symbolic—and that both dimensions deserve greater study. I also argue for collaborative research with legal practitioners, who have significant experiential knowledge to offer about how power operates in this space. The need for this research has perhaps never been greater, as corporate and other interests increasingly move to neutralize this historically important site of political contestation.

In the last few decades, the study of law and religion has undergone considerable reconstruction. Less and less constrained by modern statist construals of rights talk or tied to confessional contexts, the comparative study of the intersection of law and religion by anthropologists, historians, sociologists, and religious studies scholars is undergoing a real renaissance. Exciting new work explores the entanglement of legal and religious ideas, institutions, and material objects across the entire space and time of human history. This article models an engagement between the academic study of religion and sociolegal scholarship by introducing scholars in both fields to contemporary debates in the study of law and religion. These debates examine how and when state law persists as a meaningful arena of contestation; the role of indigenous elites and arrangements of legal pluralism in colonial contexts; and new approaches to economy, race, and sovereignty and citizenship. By mobilizing an understanding of law that does not take for granted the state's alleged monopoly on generating and regulating legal normativity, the article argues that holding law and religion in abeyance as normative traditions invites a far more expansive imaging of these universals in their singularity, in their copresence, and as overlapping domains.

Technology is changing the way we interact with each other, which in turn is changing the way we resolve our disputes. Every society throughout history has crafted social institutions to resolve problems fairly and consistently, and that is true also for the online society we are building on the Internet. Online dispute resolution (ODR) is the study of how to effectively use technology to help parties resolve their disputes. Originally crafted by companies like eBay to promote trust in eCommerce, ODR is now being integrated into the courts to expand access to justice and reduce costs. With the expansion of artificial intelligence and machine learning, ODR has the potential to become the new default for fast and fair resolutions, but there are many questions that still need to be answered, and much potential for fraud and abuse. In this article, I explain the need for ODR, provide a short history of its evolution, outline a rubric for building ODR systems, share some case studies demonstrating its use, and describe some ethical dilemmas that could accompany its expansion.

This article reassesses the relationship between populism, democracy, and constitutionalism in light of the strong tendency toward personalism that populism often carries. Populists who have taken power in recent years have often sought to carry out formal or informal constitutional changes. Whereas some of these changes have been celebrated as constitutional innovations, many have been viewed as threats to democracy. Focusing on examples from Latin America, this article shows that despite the stress populists put on constitutional change, the phenomenon remains tied to the charisma of individual leaders. Populist leaders go to great lengths to remain in office, and succession poses an acute regime crisis. A core task for constitutional design is incentivizing populist leaders to leave power, which is more likely to be achieved by channeling politics than by judicial fiat. If this can be accomplished, the ultimate legacy of populist constitutions may be more beneficial, and less harmful, than commonly thought.

In this article we review the contested effects of traditional payday loans on borrowers and describe recent regulatory changes to the product. We then provide detail on the institutional features and regulation—to the extent that there is any—of new products emerging to fill demand that remains when payday loans are more strictly regulated. Little is known about the effects of these new loan products on borrowers. What is certain is that state restrictions have led lenders to modify their loans to narrowly evade restrictions on interest rates, loan lengths, loan sizes, and repayment procedures like allowing loans to roll over. We focus on the starkest changes to small-dollar credit regulation that have occurred recently, including the development of high-interest installment loans, so-called flex loans offered by payday lenders, and the fintech creation of earned wage advance products.

Regulatory capitalism depends heavily on science, but science faces epi-stemic critiques and crises of research integrity. These critiques and crises are outlined and then located within capitalism's general tragedy of commodification. Drawing on Marx's insights into the relationship between science, commodity production, and the machine age, the general tragedy of commodification is outlined. From here, the article shifts to discussing some well-known global public good problems relating to access to medicines and access to knowledge. The roots of these problems can be traced back to the way the institution of science has been bent toward processes of capital accumulation. The evidence we have from the history of science suggests that too often its research agendas have been set by capital and the demands of war-making capitalist states. The final part of the article considers whether the ideal of responsiveness might help us to reformulate the way in which we think about the responsibilities and duties of science. It focuses on human rights, citizen science, and the intellectual commons as potential sources of responsiveness. Responsiveness has been a fertile ideal for law and society theorists when it has come to theory building in law and regulation. It also has something to offer the debates around the crises of science.

Swencionis & Goff identified five situations that tend to increase the likelihood that an individual police officer may behave in a racially disparate way: discretion, inexperience, salience of crime, cognitive demand, and identity threat. This article applies their framework to the realities of police work, identifying situations and assignments in which these factors are likely to influence officers’ behavior. These insights may identify opportunities for further empirical research into racial disparities in such contexts and may highlight institutional reforms and policy changes that could reduce officers’ vulnerability to risks that can result in racially unjust actions.