Annual Review of Law and Social Science - Volume 17, 2021

The human rights movement is increasingly using interdisciplinary, multidisciplinary, mixed-methods, and quantitative factfinding. There has been too little analysis of these shifts. This article examines some of the opportunities and challenges of these methods, focusing on the investigation of socio-economic human rights. By potentially expanding the amount and types of evidence available, factfinding's accuracy and persuasiveness can be strengthened, bolstering rights claims. However, such methods can also present significant challenges and may pose risks in individual cases and to the human rights movement generally. Interdisciplinary methods can be costly in human, financial, and technical resources; are sometimes challengingto implement; may divert limited resources from other work; can reify inequalities; may produce “expertise” that disempowers rightsholders; and could raise investigation standards to an infeasible or counterproductive level. This article includes lessons learned and questions to guide researchers and human rights advocates considering mixed-methods human rights factfinding.

This article discusses the rise of an approach to philanthropic giving known as philanthrocapitalism. I relate it to a new paradigm in management theory that has claimed that private profit making naturally aligns with improved public welfare. I show how growing belief in the inherent “compatibility” of corporate missions and public benefits has led to new laws and contributed to major shifts in how giving practices are structured and legitimated. The original point made in this article is that the philanthrocapitalist turn is more than simply an organizational change in the structure of different philanthropic institutions. Rather, the belief that profit-making and public welfare are naturally aligned also has significant, undertheorized implications for different principles in European-American legal traditions. The ascendancy of the philanthrocapitalist approach represents a subtle but profound displacement of belief in the need for democratic checks and balances on the use of public funds for private enrichment.

In this article, I use the concept of constitutional dictatorship as a heuristic, as a way of thinking more explicitly about constitutional violence than is customary in comparative constitutional law. Constitutional dictatorship is an epic concept. It is capable of illuminating—and retelling—epic histories of constitutional law, of alerting us to commonalities in constitutional practices of domination—and thus of violence—that would otherwise remain shrouded in legal orientalism. The analysis aspires to make constitutional law strange again. To this end, I trace nomoi and narratives of constitutional dictatorship from colonialism to the coronavirus pandemic. Arguing against emergency scripts, I relate the idea of “emergency” to the everyday and both to coloniality. Mine is a rudimentary conceptual history—a Begriffsgeschichte—of constitutional dictatorship. I think of the empirical vignettes about crisis government in the colony/postcolony on which my comparative historical analysis is based as prolegomena to a critical theory of constitutional dictatorship.

This review examines the Black Lives Matter movement. Despite a growing body of literature focused on explaining the formation and activities of the present Black Lives Matter movement, less attention is given to the historical antecedents. What are earlier Black-led movements centered on ending state-sanctioned violence? This article situates Black Lives Matter in a much longer lens and examines the long struggle to protect Black lives from state-sanctioned violence. We draw from existing research to provide a historical genealogy of the movement that traces the beginnings of a movement to protect Black lives to the work of Ida B. Wells and follows it up to the work of the Mississippi Freedom Democratic Party and the urban rebellions that have followed.

Postwar recovery efforts foreground gender equality as a key component of building more liberal democracies. This review explores the burgeoning scholarship on women's rights after war, first grappling with war as a period of possibility for building new gender-inclusive institutions. We review efforts in three arenas: increasing women's political representation in postwar democratic transitions; improving access to justice for women through the extension of property rights and bodily autonomy within systems of carceral justice; and integrating women into labor markets and security sectors through various components of the Women, Peace, and Security agenda. Yet these inclusionary efforts have too often sought to dismantle one form of oppression (gender inequality) without challenging others. We document how projects to center women in liberal democratic reforms following war inadvertently overlook other manifestations of violence at the core of these institutions.

Scholars conventionally distinguish between liberal and illiberal, or authoritarian, legal orders. Such distinctions are useful but often simplistic and misleading, as many regimes are governed by plural, dual, or hybrid legal institutions, principles, and practices. This is no less true for the United States, which often is misidentified as the paradigmatic liberal constitutional order. Historical and critical scholarship, including recent studies of law under racial capitalism, provide reason to identify American law as a dual state in which legal forms that govern property ownership, contract relations, and civil liberties of free citizens differ from the more illiberal, authoritarian legal forms that rule over subaltern populations, particularly racialized, low-wage workers, Indigenous populations, the poor, immigrants, and women. This dual state, we argue, did undergo changes to adopt more procedurally liberal, professional, overtly deracialized legal forms after World War II, but these changes masked more than tamed the continuing illiberal, authoritarian violence that targeted marginalized citizens. While constantly changing, the American legal system is best understood not as a singular liberal order but instead as a hybrid system of mutually constitutive liberal and illiberal and authoritarian legal practices.