Annual Review of Law and Social Science - Volume 3, 2007

This review examines the scholarship at the intersection of immigration law, race, and identity. Historically, much of the literature has focused on the ways immigration law has constructed, and been constructed by, racial categories. I argue that African American racialization has been a central component of immigrant exclusion and that immigrant racialization has paradoxically hardened images of blackness. Whereas this literature emphasizes the role of law in this process, much of the more recent literature decenters law. This scholarship privileges issues of identity construction, with the fluidity and contingency of racial identity taking center stage. Despite this decentering, law clearly still matters. Examining the reference to Hurricane Katrina victims as “refugees” and the vehement reaction against that reference, we can see the complexities of the connection between racial construction and immigration and the implications for future scholarship.

Accountability can mean many things, but increasingly it is linked to quantification. This is true in many fields, including law. This review considers how the recent emphasis on quantitative accountability has influenced law and legal practices. Rather than offering a broad survey of quantitative techniques deployed in law, the article examines three legal contexts in which quantification has shaped how actors are held accountable: sentencing guidelines, cost-benefit analysis in regulation, and law school rankings. The conditions that promote rigorous quantification, its effects on professional discretion, relations of authority, and resistance are examined. The article suggests fruitful questions and strategies for analyzing more broadly the effects of quantification in law.

Socio-legal scholars forever debate whether law is the product of internally constructed rules, procedures, and rationales or an effect of external social forces and interests. Traditionally, the debate pitted formalists who defended law's actual autonomy against instrumentalists who claimed law was a creature of exogenous circumstance. The debate was transformed in the later twentieth century, first by fundamental refinements in Marxist theory that produced structuralist accounts of law's relative autonomy, then by poststructural innovations in critical theory which held that all discourses (including law) were epistemically autonomous. Parallel formulations claimed not only that law was autonomous but also that law was in fact constitutive of the very social circumstances once held to determine its development. This article reviews the highlights of the debate while adopting a perspective outside it. It treats the autonomy question as relational—if law is autonomous it must still be autonomous in relation to something—and asks in relation to what? All sides in the debate assume the answer is society, so the article asks how the social became law's relational other and what other relationalities might be brought into play.

Reviewing research on organizational compliance, the politics of law, law and social movements, law and inequality, and law and social change, this article examines conditions under which legal institutions have more or less capacity to promote inequality-reducing social change in democratic capitalism. Law produces social change through a combination of rational adaptation to legal incentive structures, cultural meaning making and institutional diffusion, and political mobilization and counter-mobilization. Substantive effects-oriented administrative, adjudicative, and organizational interpretations of welfare-oriented legislation maximizes inequality reduction. These interpretations are most likely to be achieved through a combination of collective mobilization for strategic litigation in conjunction with sustained political mobilization from below both in society and in organizations, accompanied by the influence in implementation and also active monitoring by law and social science–savvy reformers representing the interests of disadvantaged classes and groups.

Rule of Law rhetoric is increasingly common, both in U.S. legal literature and in the realm of international governance. In the field of law and economic development, the Rule of Law revival is lead by the international financial institutions (IFIs). Rule of Law discourse has also come to play an important role in the fields of comparative politics and comparative law, particularly with respect to East Asia. This review begins with a discussion of Rule of Law rhetoric in the Anglo-American tradition. It then discusses the international Rule of Law renaissance, focusing on the roles that Rule of Law rhetoric plays in the development activities of the IFIs. Because the claim is that the Rule of Law is key to economic development, this review explores the extent to which Northeast Asia's outstanding economic development conformed to the Rule of Law. An exploration follows of how the Rule of Law–economic development literature has evolved over time, in line with changing ideas about economics and about development itself. Finally, this review explores how Rule of Law is used in the literatures of comparative politics and comparative law.

As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government—this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.

This review provides an overview of the emergence, content, and institutionalization of hate crime law as a unique form of criminal and civil rights law originating in the United States and increasingly finding a home in other countries. From the introduction and politicization of the term hate crime in the late 1970s to the increased enforcement of hate crime law at the beginning of the twenty-first century, social movements have constructed the problem of hate-motivated violence; politicians at the federal and state levels have passed legislation defining the parameters of hate crime; appellate court judges have decided the constitutionality of hate crime law; and law enforcement officials have classified, reported, investigated, and prosecuted incidents as hate crime. At the same time, media attention to hate crime has increased, defining the concept for the masses while leading to and reflecting growing acceptance of the idea that criminal conduct is different when it involves an act motivated by (some types of) bigotry, hatred, or bias and manifested as discrimination against (some types of) minorities. An examination of these changes suggests that lawmaking transcends the moment at which a statute is adopted; it is best understood as a larger process of policy domain formation that is enabled and constrained by a policy community intimately connected to extralegal political processes and the workings of loosely coupled bureaucratic structures comprising the criminal justice system.

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced—criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews—by examining empirical studies of the processes in different settings—how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual practices in a variety of locations—family abuse, juvenile delinquency, criminal violations, problem-solving courts, indigenous-colonial-national disputes, ethnic and religious conflicts, civil wars, and liberation struggles. Restorative justice, which began as an alternative model of criminal justice, seeking healing and reconciliation for offenders, victims, and the communities in which they are embedded, has moved into larger national and international arenas of reintegration in political and ethnic conflicts. This review suggests that there are important and serious questions about whether restorative justice should be supplemental or substitutional of more conventional legal processes and about how its innovations suggest potentially transformative and challenging ideas and “moves” for dealing with both individual and group transgressive conduct, seeking peace as well as justice.

Law and collective memory are reciprocally associated. Law steers collective memory, directly but selectively, as trials produce images of the past through the production and presentation of evidence in ritual practices and public discourse. Law affects collective memory indirectly by regulating the production, accessibility, and dissemination of information about the past. Simultaneously, collective memory is preserved and activated by carrier groups to inform lawmaking and law enforcement; and memories of past atrocities serve as analogical devices that, under certain conditions, influence law. Such institutionalization of collective memory as law partly results from applied commemorations, lawmaking situations that invoke the past. The relevance of the reciprocal relationship between law and collective memory is highlighted by the international community's responses to recent atrocities and regime transitions and by its new openness to intervention in national affairs. This article reviews past research and discusses avenues for future work on law and collective memory.

After an introduction into the paradoxes of the coexistence of a traditional legal order, oppression, and persecution of opponents and minorities under the National Socialist government in Germany (1933–1945), the article explains how deep the National Socialist ideology penetrated several fields (constitutional and administrative law, penal law, tax law, etc.). I conclude with a short reflection concerning the problem of historicizing Nazi law.

Before the collapse of socialism, Western comparative lawyers more or less agreed that socialist law was different from the law of capitalist legal systems. But was it different enough no longer to have a place in the new democracies of Eastern Europe? This review looks at the socialist features of pre-1989 East European law and suggests that Marxist law never existed in the first place; that the Stalinist aspects of socialist law, while not extinct, were not confined to the law of Eastern Europe and thus not necessarily socialist; and that the parental qualities of law in the former Soviet Bloc correspond well not only with the needs of unsettled and impoverished populations in Eastern Europe, but with the modern welfare state in general.

This review considers one of the most prominent methods of combating gang activity in the second half of the last century, namely the deployment of legal strategies to prevent gang formation and intervene in existing gang structures. These include highly formalized strategies, such as the enactment of legislative decrees such as injunctions that limit the association of gang members in public space, as well as informal procedures in which communities create an indigenous and localized set of norms and juridical procedures to fight gang activity. Research on legal tactics and gang control in the past few decades has shown that the formative understanding of the city as a social ecology of distinct and separate communities, in which social institutions and residents are largely attuned to activity occurring within their boundaries, remains at the heart of social policy formulation with respect to youth delinquency. The review addresses these major legal innovations and the debates surrounding them.

In the United States, lawbreakers are treated as social isolates, and the sentences imposed upon them are conceived of as affecting a discrete individual. However, people who commit or are suspected of committing crimes are generally embedded in kinship webs and social networks that draw others into the ambit of the state's punishment apparatus. Through their association with someone convicted of a crime, legally innocent people have firsthand and often intense contact with criminal justice authorities and correctional facilities, they experience variants of the direct and indirect consequences of incarceration, and they are confronted by the paradox of a penal state that has become the primary distributor of social services for the poor in the United States. Collectively, studies investigating punishment beyond the offender contribute to the understanding of the wide and multi-faceted impact of punitive sanctions and spotlight the importance of considering this full range of repercussions when evaluating the scope of the nation's policing, judicial, and correctional policies.

The effects of correctional interventions on recidivism have important public safety implications when offenders are released from probation or prison. Hundreds of studies have been conducted on those effects, some investigating punitive approaches and some investigating rehabilitation treatments. Systematic reviews (meta-analyses) of those studies, while varying greatly in coverage and technique, display remarkable consistency in their overall findings. Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large. There is, however, considerable variability in those effects associated with the type of treatment, how well it is implemented, and the nature of the offenders to whom it is applied. The specific sources of that variability have not been well explored, but some principles for effective treatment have emerged. The rehabilitation treatments generally found effective in research do not characterize current correctional practice, and bridging the gap between research and practice remains a significant challenge.

This review explores a number of legal-theoretical studies of the encounter between law and biotechnology. Rather than attempt an extensive compilation of scholarship, the review focuses on those studies that have addressed the effects that biotechnologies (understood in the broadest sense) have had on the composition of legal form. Although the relation between law and biotechnology is often seen as being one in which law is applied to biotechnology as a kind of prohibitory limit or regulatory force, this review explores some of the ways in which biotechnological programs have challenged and eroded the conceptual form of law. The hypothesis is that there is an antagonistic relation between law and biotechnology and that this antagonism is brought out in scholarship relating to the key areas in which the encounter between law and biotechnology is played out: intellectual property, governance and regulation, and those domains of law that have incorporated technologies of DNA fingerprinting.

The growing salience of intellectual property (IP) rights has reconfigured U.S. science, shifting it from the formerly separate realms of university and commercial science to an increasingly interconnected field of public and proprietary science. We assess both the magnitude and consequences of these developments, first describing the primary tools of IP and the changing nature of their influence on science, and then examining the effects of IP on the roles, rules, and relations of the scientific enterprise. We also consider the emergence of new models of scientific practice that blend both public and private. We debate whether current changes represent a transition or transformation in the relations between science and property. Finally, we argue that just as the public and private spheres of science may be converging, so must future scholarship if we are to answer harder questions about the appropriate balance between traditional logics of open science and the more recent regimes of proprietary science.

This article reviews and critiques recent scholarship on surveillance and communication technology that involves the crossing of personal information borders. A Sociology of Information framework focusing on the normative elements is proposed as a way to integrate this variegated field. Empirical analysis is particularly needed to test the claims of surveillance scholars, and we suggest some hypotheses. The article concludes with a consideration of conflicting values and empirical trends that make this such a challenging field and suggests some “moral mandates” to guide research in the crossing of personal informational borders, whether this involves individual privacy and accountability or broader social concerns.

Work and family scholarship increasingly focuses on how institutions constrain the choices of families struggling to balance market work with care work. Recent legal reforms, including the Family and Medical Leave Act, also focus on institutional reform to alleviate work/family conflict. This article reviews important empirical questions raised by this institutional turn in both law and social science. How have changes in the institutions of family and work contributed to work/family conflict? Have legal reforms produced more egalitarian sharing of care work between men and women? How do work organizations respond to these legal mandates? How have organizational and cultural institutions hindered or given support to laws that attempt to reform the relationship between work and family? Empirical research indicates that legal reforms have brought about important changes but that entrenched work practices and cultural norms around work, family, and gender continue to generate institutional resistance to social change.

Experimental psychology has provided substantial evidence that the human mind can operate in automatic, uncontrollable fashion as well as without conscious awareness of its workings and the sources of influence on it. With methods available to measure implicit or less conscious aspects of social cognition, especially group-specific attitudes and stereotypes, several aspects of the nature of implicit social cognition are now regarded as well established. Such results primarily include the pervasive and robust implicit favoritism for one's own groups and socially dominant groups, the dissociation between implicit and explicit social cognition, the ability of both to predict behavior, the greater impact of the former on certain discriminatory behaviors, and the sensitivity of seemingly implicit thoughts, feelings, and behaviors to change in response to situational features and experience. Legal scholarship and judicial opinions are beginning to consider how the law can and should adapt to such findings, in particular how they call into question existing assumptions regarding the notion of intent, and their relevance for antidiscrimination law.