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

With the rise of the #MeToo movement, there has been a groundswell of attention to sex-based harassment. Organizations have pressured high-level personnel accused of harassment to resign, or fired them outright, and they have created or revised their anti-harassment policies, complaint procedures, and training programs. This article reviews social science and legal scholarship on sex-based harassment, focusing on definitions and understandings of sexual (and sex-based) harassment, statistics on its prevalence, the consequences of harassment both for those who are subjected to it and for organizations, and explanations for why sex-based harassment persists. We then discuss the various steps that organizations have taken to reduce sex-based harassment and the social science literature on the effectiveness of those steps. We conclude that many organizational policies prevent liability more than they prevent harassment, in part because courts often fail to distinguish between meaningful compliance and the merely symbolic policies and procedures that do little to protect employees from harassment.

Because attorneys are essential to a fair legal process, it is important to understand the experience of a legal career. This article first reviews research on the influence of attorneys on the legal system, focusing on the effect on the influence of trial attorneys on (a) juries, with a particular focus on attorney skill, behavior, trial decisions (i.e., joinder/severance, jury selection, opening arguments, witness selection, questioning style, cross-examination, objections, closing arguments), and characteristics (gender, race/ethnicity, attractiveness), and (b) clients. The article then reviews the limited research on the role and impact of attorneys outside the litigation context, followed by the influence of the legal system on attorneys, with a focus on attorney distress (prevalence, causes, and consequences). The review concludes with a discussion of the overall relationship between attorneys and the legal system.

This article evaluates the effects of medical malpractice reform on claiming, malpractice premiums, physician supply, and defensive medicine. We conclude that damage caps materially reduce claim frequency, payouts per claim, and total payouts. The effects of damage caps on malpractice premiums, physician supply, and defensive medicine are more modest. It is difficult to quantify the impact of reforms other than damage caps—partly because reforms are typically adopted as a package deal, and partly because of the limitations of the available data. We close by identifying three areas that would benefit from more research.

With respect to African Americans, the history of racial discrimination in the imposition of the death penalty is well-known, and the persistence of racial disparities in the modern era of capital punishment is well-documented. In contrast, the influence of Latino ethnicity on the imposition of the death penalty has been studied very little. A review of the limited literature reveals evidence of discrimination against Latinos. Archival studies generally find ethnicity-of-victim discrimination, and some of those studies find ethnicity-of-defendant discrimination disadvantaging Latino defendants; these findings parallel the findings of the much more robust literature investigating bias against African American defendants and victims. The controlled experimental studies generally show both ethnicity-of-defendant and ethnicity-of-victim discrimination disadvantaging Latinos. Related literature investigating stereotypes, animosity, and discrimination in other criminal justice decisions further suggests the likelihood of ethnicity discrimination in the imposition of capital punishment, as well as the need for further research.

This article examines the origins of US mass incarceration. Although it is clear that changes in policy and practice are the proximate drivers of the prison boom, researchers continue to explore—and disagree about—why crime control policy and practice changed in ways that fueled the growth of incarceration in all 50 states. One well-known account emphasizes the centrality of racial and electoral politics. This article more fully explicates the racial politics perspective, describes several friendly amendments to it, and explores a range of arguments that challenge it in more fundamental ways. In the end, we maintain that although mass incarceration has many drivers, it cannot be explained without reference to the centrality of racial politics; the importance of the crime issue to the GOP electoral strategy that emerged in the wake of the civil rights movement; and the nature of the decentralized, two-party electoral system in the United States.

The rise of big data and machine learning is a polarizing force among those studying inequality and the law. Big data and tools like predictive modeling may amplify inequalities in the law, subjecting vulnerable individuals to enhanced surveillance. But these data and tools may also serve an opposite function, shining a spotlight on inequality and subjecting powerful institutions to enhanced oversight. We begin with a typology of the role of big data in inequality and the law. The typology asks questions—Which type of individual or institutional actor holds the data? What problem is the actor trying to use the data to solve?—that help situate the use of big data within existing scholarship on law and inequality. We then highlight the dual uses of big data and computational methods—data for surveillance and data as a spotlight—in three areas of law: rental housing, child welfare, and opioid prescribing. Our review highlights asymmetries where the lack of data infrastructure to measure basic facts about inequality within the law has impeded the spotlight function.

The concept of adversarial legalism has been widely used by scholars of law, public administration, public policy, political science, sociology, and Law and Society, but the varying ways in which the concept has been employed raise concerns that it has become stretched to the point of incoherence. We argue that adversarial legalism entails both a style, an everyday practice of dispute resolution and policy making with distinct attributes, and a structure of governance that can be compared to other structures of authority. Untangling these aspects of adversarial legalism allows us to make sense of its different uses and identify future avenues of inquiry. Despite its wide application, adversarial legalism is in fact underutilized, especially in studies aimed at understanding consequences of judicialization, legalization, and juridification in the United States and abroad.