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

The United States, like many countries around the world today, is experiencing the disruption of traditional patterns of governance and the breaking of norms of everyday behavior. If we identify the norms of governance with the rule of law, and if we consider the norms of everyday behavior to constitute civility, then we can approach the current state of affairs by asking how law and civility relate to one another. I survey and discuss three different understandings of the law/civility relationship: law and civility, law or civility, and law as civility. Each of these understandings is an analytical resource, and as such, each understanding captures a facet of a complex relationship and provides a way to think about our current age of unrest.

This article identifies points of comparison between legal theory and social theory and possibilities for research communication between them. The current range of both fields is such that each must be seen as a compendium of very diverse intellectual projects. So, the article explores particular contemporary themes around which the interests of juristic scholars and social theorists are converging, albeit that their theoretical aims often differ. Contrasting and complementary juristic and social theoretical perspectives are considered in relation to the following: the future of legal individualism, the identity of law as a social phenomenon, the relations of law and power, the contribution of law to societal integration, and the changing relation of law and the state. The article argues that these five themes reveal major intellectual challenges for both legal theory and social theory and productive future areas for inquiry.

Researchers have written a good deal in the last two decades about the relationship between public education and criminal justice as a pipeline by which public school practices correlate with or cause increased lifetime risk for incarceration for Black and Latinx youth. This article flips the script of the school-to-prison pipeline metaphor by reversing the question. What are the effects of criminal justice on public schooling? Reviewing recent social science research from multiple disciplines on policing and incarceration, this article describes the relationship of criminal justice to public education as hobbling, a social process by which the massification of policing and incarceration systematically compromises the ability of target demographics of American children to enjoy their rights to a free and appropriate public education.

Law and social science scholars have long elucidated ways of governing built around state governance of populations and subjects. Yet many are now grappling with the growing prevalence of practices of governance that depart, to varying degrees, from received models. The profusion of digital data, and the deployment of machine learning in its analysis, are redirecting states’ and international organizations’ attention away from the governance of populations as such and toward the amassing, analysis, and mobilization of hybrid data repositories and real-time data flows for governance. Much of this work does not depend on state data sources or on conventional statistical models. The subjectivities nurtured by these techniques of governance are frequently not those of choosing individuals. Digital objects and mediators are increasingly prevalent at all scales. This article surveys how scholars are beginning to understand the nascent political technologies associated with this shift toward governance by data.

This review surveys the philosophical underpinnings, conceptual frames, and methodological choices informing the scholarship on truth commission impact to examine whether, how, how much, and why truth commissions influence policy, court decisions, and social norms. It focuses on three areas: (a) truth commission impact as the product of complex interactions between politicians, civil society activists, and truth commissions; (b) conceptual and methodological debates and disagreements in studies of impact; and (c) normative visions guiding expectations and assessments. The findings of empirical scholarship range from partial confirmation of bold and at times vague expectations to damning accounts of commissions’ failure to deliver. In addition to conceptual and methodological choices, scholars’ normative assumptions and expectations also explain divergent accounts of truth commission impact. Three sets of normative frameworks set the expectations in particular: building liberal democratic institutions; transforming socioeconomic, gendered, and racialized hierarchies; and reflecting local values, norms, and power dynamics.

The decision of whether to hold someone legally responsible raises both philosophical and psychological questions. Philosophically, legal responsibility derives from either what someone did or who someone is—deed or role responsibility. For both the young and the very old, responsibility for bad actions is intertwined with psychological definitions of competency and capacity. For the young, the law assumes incompetence until a certain chronological age or court determination. For the old, no automatic chronological age is determinative; rather, the law assumes competence until a court determines otherwise. These automatic or court determinations impact legal responsibility in both the civil and criminal law contexts for both the young and the old. Additionally, special circumstances create responsibilities for others in relation to the young and old.

Various forms of inequality, such as the gender, race, and class systems of inequality, operate and intersect in societies and markets. In this review, I discuss specifically the gender system of inequality. I focus on market interactions, conceptualizing them as the building blocks for gender inequalities in markets. My objective is to give an account of the complex interplay between the unequal distributions of resources, stereotypes and cultural beliefs about gender, and the law. I start by describing the persistence of gender inequality in markets. Building on studies in social psychology, I then identify the ways in which stereotypes and cultural beliefs about gender constantly, and unconsciously, frame our market interactions. Lastly, I discuss the limits of the law in altering the ways in which we interact in markets and the potential of the law to bring about lasting change.

In criminal cases of self-defense and provocation, and civil cases of negligence, culpability is often decided with reference to how a reasonably prudent person (RPP) would have behaved in similar circumstances. The RPP is said to be an objective standard in that it eschews consideration of a defendant's unique background or characteristics. We discuss theory and evidence suggesting that in morally relevant judgments, including those involving negligence, self-defense, and provocation, the tendency to rely on the self—on one's own values and predilections—dominates considerations of the RPP. We consider subjective standards that have been proposed as alternatives to the RPP and review research on this topic. We conclude by considering avenues for future research, particularly addressing conditions in which self-standards of reasonableness are most likely to prevail.

In recent years, various approaches to transnational regulation of business conduct have evolved as an alternative to the command-and-control model focusing on conduct of domestic businesses and the soft law approach of international human rights law to regulate corporations. On reviewing the potential of five such approaches (i.e., polycentric governance, extraterritorial regulation, proposed international treaty, reform of corporate laws, and rebalancing of trade-investment agreements), this article makes two arguments. First, although polycentric governance is critical to fill regulatory deficits of state-based regulation, this approach should not ignore or weaken further the role and relevance of states in regulating businesses, given the dynamic relation between state-based and other regulatory approaches. Second, greater attention should be paid to nonhuman rights regulatory regimes to change the corporate culture, which tends to externalize human rights issues. The increasing focus on the role of corporate laws and trade-investment agreements should be seen in this context.

With a focus on legal and other organizational actors beyond the state, this article seeks to expand the theory of conditions under which legal occupations will mobilize to fight for basic legal freedoms within states. It elaborates the line of scholarship on legal complexes and political liberalism within states since the 17^th century. First, we catalog harms that international organizations (IOs) of many kinds seek to protect in the more than 190 states in the world. Second, we elaborate the concept of an international legal complex (ILC) as a collective actor in the global struggle for basic legal freedoms. We illustrate these two steps with new data on China drawn from a wider project. We show what harms mobilize the ILC, international human rights organizations (IHROs) and an international governmental organization, the UN Human Rights Council (UNHRC). We focus on accountability devices as tools differentially deployed by the ILC, IOs, and UNHRC in theirefforts to influence the institutionalization of basic legal freedoms, an open civil society, and a moderate state in China. The illustrative case of China provides a framework for research and theory on all other countries.

Judges and jurors are asked to comb through horrific evidence of accidents and crimes when choosing verdicts and punishment. These factfinders are likely to experience and express intense emotions as a result. A review of social, cognitive, moral, and legal psychological science illuminates how experienced and expressed emotions in legal settings can unconsciously bias even the most well-intentioned, diligent factfinder's decision-making processes in prejudicial ways. Experiencing negative emotions creates motivation to blame and punish—instigating blame validation processes to justify guilty/liability verdicts and harsher punishments. The review also examines how emotion expression can impugn legal actors’ credibility when it violates factfinders’ (often unrealistic) expectations for appropriate emotion in legal contexts. It considers misguided and promising interventions to help factfinders regulate emotional responses, advocating limiting emotional evidence as much as possible and, when not possible, helping factfinders reframe how they think about it and remain aware of their potential biases.

Restorative justice may be effective because it is a street-level meta-strategy that is responsive and relational. Nonresponsive, nonrelational strategies that are enacted from desks are less likely to be effective; best-practice strategies may be less likely to be effective than wisely sequenced meta-strategies. Responsive regulation is conceived as a strategy of moving among strategies, as opposed to selection of any best strategy. Restorative justice is a way of selecting strategies to heal the hurts of injustice. Empathic empowerment of stakeholders who take turns to speak in a circle is at the heart of its strategy for strategy selection. Restorative justice can complement responsive regulation; at their best, they are mutually constitutive. Responsive regulation may work best when restorative justice is a first preference at the base of a pyramid of strategies. Responsive regulation involves listening and flexible deliberative choice among strategies arrayed in a pyramid. At the bottom of the pyramid are more frequently used, noncoercive strategies of first choice. Despite encouraging evidence that restorative and responsive regulation can work better than less dynamic top-down enforcement, the effectiveness of restorative justice and responsive regulation depends mainly on the efficacy of the interventions that are responsively chosen. It is time to redirect research and development to improving the quality of restorative-responsive strategy selection and the quality of the diverse strategies on offer.

This article analyzes the different ways in which transitional justice has dealt with demands over property restitution and redistribution. To do this, it presents a review of academic literature regarding how to define reparation, the justifications for restitution, and the debate regarding property redistribution as a part of peace negotiations. The article ends with a synthesis of the different critiques raised to the ways in which restitution and redistribution of property have been legally structured. These critiques include foregrounding neoliberalism (as an economic ideal and a governance project) in transitional justice, unveiling gender biases as well as demands for more comprehensive redistribution in the aftermath of civil war.

As part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review, we summarize the current state of ELR relative to the broader movement toward replicability in the social sciences. As part of that aim, we summarize recent collective replication efforts in ELR and transparency and replicability guidelines adopted by journals that publish ELR. Based on this review, ELR seems to be lagging other fields in implementing reforms. We conclude with suggestions for reforms that might encourage improved replicability.

International law seeks to ensure water security and to prevent or resolve conflicts leading to water insecurity. This relationship is based on a hybrid framework comprising binding and nonbinding instruments. The multi-scalar dimensions of water (in)security are recognized, but further engagement is required. The link between international law and water (in)security is considered primarily through the lens of international water law, which focuses on transboundary (surface) watercourses. Groundwater—the other main source of water and determinant of water (in)security—receives little attention. Further, the traditional state-centric approach, with its emphasis on sovereignty and cooperation, remains the dominant paradigm despite some attempts to redefine it. Several other branches of international law present opportunities for expanding international law's engagement with the water security discourse. Finally, the climate change challenge requires a reconsideration of international law's approach to water (in)security while considering the global dimensions of water.

By all accounts, we currently live in a polarized political state in which virtually every fact is contestable. From climate change to vaccine efficacy, people feel free to choose their own facts to support politically charged arguments. Partisans in every area of American life are unable to agree on the basic assumptions underlying political debate. Research on cultural cognition demonstrates that people's political and cultural commitments shape how they process information from news sources, scientists, and public officials, thereby dictating which policies they support and which ones they oppose. When partisan loyalties determine what evidence people will accept, political compromise becomes difficult or even impossible. All is not lost, however. Cultural cognition has a powerful influence, but facts are stubborn things. In some areas of public debate, facts and evidence have overcome political divides. Furthermore, an understanding of the influence of cultural cognition can facilitate remedies to partisanship. This article examines the research that demonstrates the extent of cultural influences on people's understanding of public debates, identifies the limits of cultural cognition, and describes the extent to which cultural cognition itself provides keys to breaking down partisan divides.

This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one has forfeited rights. Contract schemas should be of interest to legal scholars, because their psychological and behavioral effects often sit at odds with contract doctrine. Laypeople expect the law to find consent in situations where they would prefer it did not, and where it in fact does not. Contract schemas should also be of interest to ordinary consumers, who may find themselves relinquishing legally valid claims, erroneously assuming away rights, and/or blaming themselves. Future research should explore the consequences that flow from the lay perception that the law is rigidly formalistic to the detriment of fairness. Do such attitudes undermine the perceived moral authority of the law?

This article surveys the use of algorithmic systems to support decision-making in the public sector. Governments adopt, procure, and use algorithmic systems to support their functions within several contexts—including criminal justice, education, and benefits provision—with important consequences for accountability, privacy, social inequity, and public participation in decision-making. We explore the social implications of municipal algorithmic systems across a variety of stages, including problem formulation, technology acquisition, deployment, and evaluation. We highlight several open questions that require further empirical research.

Parole board decision making has changed dramatically over the last century, mirroring broader trends in criminal punishment. Even though parole decisions affect the length of prison sentences and the US Supreme Court has safeguarded defendants’ rights during the sentencing phase of criminal proceedings, the court has largely declined to interfere in parole. After briefly surveying the historical evolution of parole in the United States, this article proceeds in two parts. First, the article analyzes Supreme Court cases involving sentencing and parole and discusses questions raised by those decisions. Second, the article examines modern studies of parole board decisions and highlights ethical and legal questions raised by the research.

Infrastructures are technical-social assemblages infused in politics and power relations. They spur public action, prompting increased scholarly reference to the practices of infrastructural publics. This article explores the normative and conceptual meanings of infrastructures, publics, and infrastructural publics. It distills from political theory traditions of Hannah Arendt, Jürgen Habermas, and Nancy Fraser a normative ideal of publics composed of the persons subject to a particular configuration of power relations that may significantly affect their autonomy. Autonomy can be seriously affected not only by existing or planned infrastructures, with their existing or anticipating users and workers and objectors, but also by the lack of an infra-structure or by the terms of infrastructural exclusions, rationings, channelings, and fiscal impositions. Legal-institutional mechanisms provide some of the means for infrastructural publics to act and be heard, and for conflicts between or within different publics to be addressed, operationalizing legal ideas of publicness. These mechanisms are often underprovided or misaligned with infrastructure. One reason is the murkiness and insecurity of relations of infrastructural publics to legal publics constituted or framed as such by institutions and instruments of law and governance. We argue that thoughtful integration of infrastructural and legal scaling and design, accompanied by a normative aspiration to publicness, may have beneficial effects.

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.