Annual Review of Law and Social Science - Volume 2, 2006

Law and social science took shape as a field of inquiry in the third quarter of the past century, an era of expanding rights and remedies and optimism about the capacity of law, government, and social science to address intractable social problems. It put down vigorous institutional roots in organizations, publications, teaching, and research that enabled it to survive the erosion of the reformist soil that nurtured it and to adapt to a new era in which the prevailing common sense is a jaundiced view that emphasizes the weaknesses, costs, and dangers of law. A significant body of research has rebutted many of the components of the jaundiced view, but with little effect on the prevailing folklore. The legal system's distinctive susceptibility to such misreadings and misrepresentations is aggravated by a late and weak development of empirical knowledge and a lack of credible guardians of its knowledge base.

Social movement scholars have long seemed little interested in law, and traditional legal scholars were little interested in social movement analysis by social scientists. However, recent years have seen growth of interest in the topic of law and social movements, with inquiry led by political scientists and law and society scholars. This review surveys that diverse literature, beginning with general theory regarding core concepts and then moving to a review of empirical studies organized around the multi-stage model derived from political process approaches and legal mobilization frameworks. The primary argument of the review is that law is contingent, and how it matters for social movements varies with the context and character of struggle. Most analysts agree that law generally works to support status quo conventions and hierarchical relationships, but sometimes law can be mobilized to challenge and even reconstitute the terms of institutional order.

DNA profiling and searchable databases enhance the ability of policing organizations to search for criminal suspects. In many respects, these technologies are incorporated within traditions of police work, supplementing familiar “subjective” methods of constructing suspects. In other ways, however, the construction of DNA databases in Britain, the United States, and elsewhere shifts criminal investigation toward suspect populations and statistical suspects. Not only is DNA evidence used to confirm that a criminal suspect is the source of crime scene evidence, it can be used to search freely through a suspect population for a possible source of such evidence. This method, commonly known as database trawling, comprises a new way of constructing suspects, one that bears close connections with new data mining technologies for prospectively identifying terrorist suspects.

During recent years, a few scholars have advocated that more attention be paid to the intersection of law, economics, and sociology—what may be called the economic sociology of law. This review suggests that a theoretical foundation for such a field of study, or parts of such a foundation, may be found in the work of Max Weber. It also provides an introduction to those parts of Weber's work that are relevant in this context. Weber especially emphasizes the role that law plays in raising the probability that actions will take place, in the economy and elsewhere, and that this probability has to be established while taking the motives of the actors into account. The main contribution of the legal system to modern capitalism, Weber also argues, is to make economic life more calculable. This review also discusses which factors account for the increasing rationalization of law, including economic factors.

This review surveys the development of Michel Foucault's analysis of political power in terms of governmentality and outlines its key characteristics. It examines the spread of this perspective, focusing in particular on how this genealogical approach to the analysis of the conduct of each and of all has been taken up and developed in the English-speaking world. It evaluates some of the key criticisms that have been made of the analytics of governmentality and argues for the continuing productivity and creativity of these ways of analyzing the emergence, nature, and consequences of the arts of government.

This review tells three interlocking tales of decline, each with its respective prognosis for recovery: the declines of labor law scholarship, labor law, and organized labor. The relationship between the latter two and the role that a reformed labor law might play in reviving organized labor are matters of continuing controversy. In the meantime, two developments on the ground suggest a way forward for organized labor, labor law, and labor law scholars. Activist unions have found success with a new organizing model: neutrality and card-check agreements. Elsewhere, antisweatshop activists are developing increasingly sophisticated supplier codes and monitoring schemes to improve labor standards in developing countries. Both strategies, with their basically contractual architecture, exemplify what regulatory scholars are calling new governance. These strategies suggest a potential way around the roadblocks that meet labor law reform proposals and toward more agile and responsive forms of workplace governance.

Violent crime in the United States has traveled a striking path in the past 20 years, from a sharp spike in the late 1980s to a dramatic drop beginning around 1993 that lasted until a flattening occurred at the beginning of the new century. The upturn of the 1980s was driven almost exclusively by a sharp increase in gun violence among young people, whereas the downturn was a joint product of a turndown in youth violence and a steady drop in violence among adults over 30 that has been ongoing for at least 25 years. These trends have intrigued lay observers and students of crime alike, with advocates of various explanations of crime arguing that the key for the rise, fall, or both lies with one or another favored determinant: prisons, drugs, guns, policing, economics, or demography, including abortion. In this review, we discuss both the crime trends and their candidate explanations, concluding that the most reasonable accounts involve a complex interaction among several of these factors.

The past decade has seen a sharp increase in the application of empirical economic approaches to the study of crime and the criminal justice system. Much of this research has emphasized identifying causal impacts, as opposed to correlations. These studies have generally found that increases in police and greater incarceration lead to reduced crime. The death penalty, as currently used in the United States, does not appear to lower crime. We also review the evidence on three other crime-related debates in which economists have played a central role: racial profiling, concealed weapons laws, and the impact of legalized abortion.

After the events of September 11, 2001, scholars rushed to contribute to the growing public debate about religion and political violence, including to counter stereotypic depictions of Islamic law and to raise questions about its role in the social and political life of Muslim and non-Muslim nations. The same period also witnessed the publication of much scholarship on Muslim personal or family law. This review focuses on these works and highlights their sophisticated theoretical treatments of social theory in critical areas, such as the interaction of normative orders, constructions and intersections of identity, human agency in the legal process, law reform and social movements, state uses of law, and the challenges facing globalizing societies. These theories provide grounding for scholars, activists, and policymakers in addressing the pressing issues emerging after 9/11.

Based on a review of field-based scholarship on law published in English in 2004 and 2005, this review focuses on themes most strongly emergent across the disciplines of law and the social sciences: state regulation of the private sector, rights (individual rights, indigenous rights, and human rights), and security. These developing areas of field research show the impact of neoliberalism on the social fields of law, an impact intensified by the war on terror. They also point to fresh theoretical horizons in relation to issues of identity, hegemony, and the discursivity of state power. Although disciplines retain their distinctive questions and approaches, they reveal common attention to discourse and practice—particularly in relation to critical events in the war on terror and new forms of executive power, especially in the United States. Current literature thus points not only to new terrain for field research on law, but also, correspondingly, to the changing nature of the field itself as a methodological object.

This literature review asks three questions of the scholarship on the regulatory networks that have so transformed global governance. First, what are these networks good for? We summarize the state of the literature on regulatory races, the fit between networks and the process of globalization, and the crucial role of the revolution in communications in the development of networks, introducing the topics with a brief intellectual history of regulatory network analysis in international relations and international law scholarship. Second, we examine how we can make sure that regulatory networks are good by asking this question: How might necessary and appropriate accountability mechanisms for the networks be constructed? The answers to these questions are at the foundation of a global administrative law, which is itself the subject of a burgeoning scholarly literature. Our third question concerns the way regulatory networks fit into a world where traditional intergovernmental relations and formally constituted international organizations are still important. We conclude by identifying different ways in which networks and international organizations can complement each other and by spotlighting questions for future research.

This review explores the creation and transformation of the field of international human rights in the period after World War II. The narrative proceeds through an examination, based on documentary evidence and interviews, of three generations of human rights nongovernmental organizations: the International Commission of Jurists, Amnesty International, and Human Rights Watch. Each was created in part to overcome the limitations of the previous generation, and the process, linked to developments in the U.S. field of state power and U.S. activities abroad—especially in Latin America—gradually produced a field with substantial legal autonomy. At the same time, however, the structure of the field moved increasingly close to U.S. power and the issues and strategies that would gain credibility in the United States. The autonomy is therefore structurally close to U.S. power.

This review considers competing models of emergency legal regulation in the aftermath of the terrorist attacks of September 11, 2001. Drawing on research in political science and political sociology, it criticizes recent debates about emergency powers among legal and constitutional scholars for ignoring the institutional dynamics of modern executive power, especially in presidential regimes. Constitutional relativists (e.g., Harvey Mansfield, Michael Stokes Paulsen, John Yoo), defenders of the extralegal model of emergency action (Oren Gross, Mark Tushnet), and common lawyers (David Cole, David Dyzenhaus) are criticized for failing to consider the pathologies likely generated by their proposals in an institutional context in which the executive possesses incentives for declaring, perpetuating, and exploiting emergency situations. Only a legal formalist perspective on emergency government (e.g., Bruce Ackerman) pays sufficient attention to the institutional dynamics of the contemporary executive.

Individual actors want to make their promises enforceable in order to motivate mutually profitable investments. But parties cannot easily design contracts that maximize beneficial investments and also respond appropriately to changing conditions. Although economists have designed theoretical models that maximize joint welfare both ex ante and ex post, these mechanisms depend on a perfectly functioning and costless system of enforcement. In the real world, parties must expend substantial resources to enforce commitments legally, and, in many cases, courts lack information to assess the parties' actions. This review examines one of the main insights of the theory of incomplete contracts: that legal enforcement alone cannot ensure the full realization of jointly beneficial cooperative ventures. Legal enforcement, supported by the coercive power of the state, is only one mechanism for inducing cooperation, and in many relationships it typically has only a limited role to play. Complex contracts do lend themselves to effective formal enforcement. But parties often choose to write simple contracts that look to renegotiation once the future is known. Simple contracts require enforcement by informal mechanisms, such as reputation, repeated dealings, and norms of reciprocity in order to motivate both beneficial investment ex ante and adjustment ex post.

This is a review, from a social scientific perspective, of law-related transformations in the formerly communist parts of Europe. It draws particularly on developments in East Central Europe. The frame of the discussion is a specific and interrelated group of questions: What are the distinctive features of these transformations, to what extent do these features endure, and what would it mean to say that the postcommunist region has entered a new phase? The review discusses the utility of the concepts “postcommunism” and “transition”; the goal of the rule of law, in the name of which many legal reforms have been made; particular problems that have arisen in relation to the judiciary, constitutional courts, and former secret police; and questions about “dealing with the past” as they have been asked about past institutions, people, and property rights. It concludes with a consideration of the likely impact of “joining Europe” on those countries that have been accepted as members of the European Union, on those that have not yet been accepted, and on those that are unlikely ever to be accepted.

This review examines the function of conspiracy in international law, with particular reference to the jurisprudence of international ad hoc tribunals. It compares and contrasts the function of conspiracy law in the prosecution of international crimes before the International Military Tribunal (IMT) at Nuremberg following World War II, where the concept gave rise to a remarkably innovative and highly controversial conspiracy theory that revolved around the concept of “criminal organization,” and the function of conspiracy law in the prosecution of international crimes before the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, where the concept has left a mark on a similarly innovative and equally controversial conspiracy theory that revolves around the concept of “joint criminal enterprise.” By tracing the function of conspiracy, this most controversial of U.S. legal transplants, in the international system, the review illuminates the significance of group dynamics in international law.

Legal rules governing the employer-employee relationship are many and varied. This review is concerned with the economic analysis of such rules. The review focuses on areas of employment regulation that have not been reviewed elsewhere from an economic perspective. Topics considered in the review include workplace safety regulation, privacy protection in the workplace, fringe benefits mandates, targeted mandates such as medical and family leave, and rules requiring that employees receive overtime pay. Both economic theory and empirical evidence are considered.

The organizational logic of the legal rules and institutions of economic globalization treats as suspect economic regulation issuing out of the democratic processes of national and subnational communities. In this way, economic globalization can be likened to state formation: as a cultural project with the object of actively suppressing alternatives. While undermining the regulatory capacity of local publics to tame markets, transnational legality prefers to draw on the normative ideas of comparative advantage, consumer freedom, and the rule of law. These discursive strategies prove an unstable basis for legitimation without the critical supports provided by national states in gaining and maintaining the consent of local publics. As the findings of a recent international arbitration panel indicate (CMS v. Argentina), transnational legality prefers to view the local as a threat to the maintenance of its political-economic order, one of open borders free of rent-seeking public regulation. This will be the case even when states, like Argentina, take measures to mitigate the hardships of a severe economic downturn. Some critical theorists, like Hardt & Negri in Empire, similarly relegate the local to a marginal place without appreciating its contradictory but sustaining role in globalization's future. Such theoretical interventions, operating in conjunction with the disciplining effects of globalization's legal order, help to immobilize, rather than empower, resistance to the monocultures of transnational legality. The question remains whether the shaky foundations upon which the legitimacy of transnational legality are structured will prove less durable than its immobilizing effects.