Annual Review of Law and Social Science - Volume 18, 2022

Although epidemics are generally understood as lying within the domain of biomedicine, legal and social arrangements play crucial roles in determining whether or not infectious disease outbreaks grow into epidemics and even pandemics. Yet epidemics are challenging terrain for legal regulation. Because epidemics cross political borders and span jurisdictional boundaries, funding for epidemic prevention, preparedness, and response is always inadequate and coordination is difficult. Because epidemics require rapid and nimble responses, governments and international organizations often declare states of emergency, thereby evading some of the usual strictures of law. And because they involve massive uncertainty and rapidly evolving health crises, they require legal actors to work more quickly and with lower standards of proof than is common in law and to intrude on the turf of medical and scientific professionals. Legal contributions to pandemic management could be improved if legal measures such as global treaties and domestic public health law took account of these special features of epidemics.

Researchers have launched a new era of studies exploring relationships between legal services regulation and access to justice. These scholarly developments respond to recent changes in how Anglo-American jurisdictions regulate the practice of law, changing who can make money from the practice of law, who can engage in it, and who can direct and control it. Often described as projects of deregulation, most are actually acts of reregulation. This article reviews empirical evidence of the relationship between these changes and access to justice. While evidence suggests some promise for increasing access, particularly through lawyerless legal services, most of these projects are in early stages and their impacts on access to justice will take some time to understand. Because much remains to explore, we also offer a research agenda for this emerging subfield.

The phenomenon Marc Galanter famously termed the vanishing trial has been widely explored by scholars of law and politics, particularly as the continued decrease of trials in court raises concerns about access to justice and legal recourse in the United States. But a lingering question remains: Where have trials gone? This article argues that we need to diversify the potential range of explanations for the vanishing trial by taking an interbranch perspective that brings to bear the ongoing tension between legal and other forms of dispute resolution and governance. Given that courts are but one venue in which disputes are resolved, this approach expands upon the thesis that disputes have not disappeared but rather have been diverted elsewhere. I argue that reframing the conversation in this way stands to generate a revised set of explanations for this trend that are worthy of future research.

This article reviews the fate of truth and falsehood outside of the courtroom, largely—but not exclusively—in the United States. Describing opportunities and techniques to mislead or deceive on and off the Internet and social media, it focuses on the evolving social control response undertaken by institutions and increasingly by distributed networks: government regulators, private actors, self-regulators, crowds, third parties, platform architecture, and technology. The review highlights the turbulent legal and regulatory challenges encountered as existing rules do not quite fit the virtual world, free speech protections tie the hands of legislators and regulators in some parts of the world, and massive private corporations—whose profitability is maximized by user engagement with inflammatory and often false messages—control much of what can and cannot be said. Competing media, platforms, and regulators usher in a post-truth era with contested arbiters of truth and dire warnings of an epistemological crisis.

Global scripts—the rules, norms, and standards in international texts, and the tacit assumptions that surround and give meaning to them—exist on numerous issues (finance, trade, economic development, climate change, education, human rights, and gender equality), at every level of engagement (international, national, local), and at every phase of recursive norm construction and contestation. Case studies involving global scripts appear across a wide range of scholarship—considering sociological, anthropological, or sociolegal perspectives, or on international political economy, international organizations, international relations, or law and development—but because they are focused on one piece of the puzzle at a time, variation exists regarding the definition of global scripts, the distinction between legal and policy scripts, and how explicitly scripts get articulated through and with reference to law. Enhanced theorization of global scripts holds promise for connecting legal to sociolegal scholarship precisely because global scripts and scriptwriting extend beyond the realm of law and lawmaking; it would enable deeper exploration of whether, how, and why a broad range of texts and practices influence behaviors.

The mobilization of law to address the degradation of the environment implicates a wide range of institutions, actors, and materials. This article maps developments in the study of environmental legal mobilization. It examines the different theoretical approaches that account for why and how groups mobilize the law (or do not), including explanations focusing on law; legal opportunity structures; resources; and/or ideas, identities, and knowledge. It then considers some of the methodological challenges of studying environmental legal mobilization and highlights recent efforts to overcome them and broaden the scope of the analysis. The article then identifies four trends that are shaping the mobilization of law: (a) changing forms of environmental law and regulation; (b) shifts in the political landscape, including repression of civil society and the undermining of the rule of law; (c) the growing diversity of the environmental movement; and (d) the cumulative impacts of environmental and climate degradation on the very institutions, processes, and resources available for the mobilization of law.

Manufactured homes provide a critical source of affordable housing and are the primary source of low-income homeownership in the United States. Yet manufactured housing (MH) is both socially stigmatized and spatially marginalized, which translates to significant inequalities for MH residents. The law figures centrally into how MH is perceived and how it is located, segregated, and financed differently from other housing. This review explores how the law has treated MH with legal hybridity, as personal property similar to an automobile rather than real property like other forms of housing. This core legal distinction structures an array of zoning, financing, and policy provisions that together create a gulf between the opportunities available to conventional owners and renters and those available to residents of MH. I explore existing research on the outcomes of this disparate legal treatment to offer an agenda for future research on a broader range of housing insecurities.

The law is permanently under construction. Most legal change is intentional. A legislator, a court, or one of the law's subjects hopes to better achieve a purpose by switching from one rule, one interpretation, or one remedy to the next. Yet empirically, legal innovation tends to be a process that takes time. At the macro level, the diffusion path is often S shaped: It does not start immediately and levels off after a while. This article links legal innovation to diffusion research and discusses micro processes that have the potential to generate the observed diffusion paths.

Interest in psychedelics is booming, heralding a possible psychedelic renaissance in the United States. But policy makers interested in expanding access to psychedelic substances would be wise to heed lessons gleaned from the past 25 years of marijuana law reforms. That experience suggests that it may prove impossible to repeal or narrow the federal ban on psychedelics in the near term, but that states provide an alternative pathway to reform. Still, to blunt the risk of a federal crackdown, policy makers may need to sacrifice certain policy goals. Furthermore, until the public warms to a broader psychedelic renaissance, policy makers may pursue narrow reforms. Policy makers will also need to address thorny questions over how psychedelics will be supplied once legalized.

We review the state of forensic mental health assessment. The field is in much better shape than in the past; however, significant problems of quality remain, with much room for improvement. We provide an overview of forensic psychology's history and discuss its possible future, with multiple audiences in mind. We distill decades of scholarship from and about fundamental basic science and forensic science, clinical and forensic psychology, and the law of expert evidence into eight best practices for the validity of a forensic psychological assessment. We argue these best practices should apply when a psychological assessment relies on the norms, values, and esteem of science to inform legal processes. The eight key considerations include (a) foundational validity of the assessment; (b) validity of the assessment as applied; (c) management and mitigation of bias; (d) attention to quality assurance; (e) appropriate communication of data, results, and opinions; (f) explicit consideration of limitations and assumptions; (g) weighing of alternative views or disagreements; and (h) adherence with ethical obligations, professional guidelines, codes of conduct, and rules of evidence.

In democratic backsliding, threats to democracy no longer come from abrupt, radical ruptures promoted by those who are close to, but outside of, state power. They come from those who win elections and, while in office, systematically undermine accountability institutions and minority rights. Zakaria used the term illiberal democracies to describe these regimes where popularly elected governments are divorced from political freedoms and accountability. Law is not absent from these stories. Rising autocrats seek to make their moves legal and use law—as a weapon or as a shield—in attempts to amass power and suppress opposition. Authors coined the term autocratic legalism to describe these power-grabbing tactics that operate through law. Others use different concepts, such as constitutional retrogression or abusive constitutionalism. I review this growing body of literature and outline a research agenda on the encounters between law and illiberalism.

This article assesses the usefulness of Fraenkel's concept of the dual state for understanding the role of law under authoritarianism. The concept, reframed as legal dualism, helps make sense of legal systems in which law matters most, but not all, of the time. A review of other analytical frameworks social scientists use to study authoritarian law reveals that they focus on the predilection of authoritarian leaders to manipulate law and courts to advance their interests. They pay little attention to how mundane disputes are handled. Only legal dualism contemplates multiple narratives of law that are a reality in contemporary authoritarian regimes.

Social movements are critical sources of change in both democratic and undemocratic contexts, leading authorities and others to attempt to prevent, constrain, or otherwise control them. In this review, we argue that research relevant to a comprehensive understanding of social movement repression is scattered across disciplines, including sociology, political science, law and society, and area studies, with each discipline focusing on different aspects. We introduce a layered framework that positions social movement repression within a larger field of political repression, connecting these unproductively siloed areas. This provides diverse researchers a map for locating one another and situating their work in relation to other disciplines. It also highlights the importance of sociolegal concepts and expertise (i.e., on understanding how illegality is defined, how legal systems may be used to suppress minoritized groups, diverse motivations for legal action) to deepening the study of political repression generally and social movement repression specifically.

The American legal academy has witnessed intense ideological assaults in recent decades, as political conservatives have sought to recast legal education and produce a different kind of legal professional. However, the paths by which conservatives have approached the law schools differ. Some conservative campaigns to remake American legal education have highlighted their ideological agenda, whereas other campaigns have taken steps to keep their ideological goals hidden. This review illustrates both strategies but dedicates special attention to conservative forces that have pursued the latter strategy of ideological concealment.

Law and order denotes a negative form of peace secured among the members of a given social or political order. Minimally, it is an appeal to restore public order to conditions classed as disorderly, or to defend it against potential or articulated threats. But what counts as public disorder, and why is it a problem for any given social or political order? Although social and political scientists tend to concur that it is determined by tradition and convention, for some, the fact of disorder is sufficient for them to back projects for law enforcement and order maintenance. Others emphasize that facts about disorder are themselves socially made. Law and order is not a neutral category for interpretation of disorder, let alone for intervention. It is an ideological or discursive construct that itself warrants scrutiny. For still others, it is not just an element of ideology but a component in the technology of neoliberal government, which needs to be studied in terms of its functions and structural effects. And there are those who query whether law ought to be conjoined with order at all. They argue that no stable or necessary relation exists between the two and that the very idea of law and order is incongruous; that law and disorder or law or order is apposite.

Corporate purpose should be at the heart of corporate law. This article addresses objections that corporate law already permits firms to determine their purposes, and companies would not in any event do more than at present in formulating their purposes. It argues, first, that critics of the law of corporate purpose have failed to recognize that purpose can address divergences of private interests of corporations from public interests of society and the natural world. Second, the law provides a means of commitment to delivery of long-term prosperity. At present, the law fails to protect companies seeking to create long-term prosperity through committing to other parties’ interests. It can and should ensure alignment of corporations’ incentives with individual, societal, and planetary interests and enable firms to commit credibly to resolution of their problems.

This article examines the implications of Distributed Ledger Technology (a.k.a. blockchain) for several areas of law. While cryptocurrencies have received much attention, the implications of DLT are potentially far reaching. DLT raises interesting and important questions relating to rules of evidence, surrounding issues like hearsay and authentication. The advent of initial coin offerings has implications not only for how firms are financed but also for securities law in regulating such offerings. Cryptocurrencies themselves (e.g., Bitcoin) have raised serious issues for tax avoidance and taxation law. Relatedly, the rise of cryptocurrencies raises issues regarding the relationship between private and nationally issued currencies, and even the role and efficacy of monetary policy. Finally, DLT has practical implications for election law and voter turnout, with such technology already begun to be used for security purposes in online voting and permitted in 32 US states.