Annual Review of Law and Social Science - Volume 4, 2008
Volume 4, 2008
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Home Away from Home: Collaborative Research Networks and Interdisciplinary Socio-Legal Scholarship*
Vol. 4 (2008), pp. 1–12More LessInterdisciplinary research has long been suspect within the disciplines. Because the disciplines control recruitment, tenure, and promotion, it is difficult for interdisciplinary scholarship to gain traction in the academic world. Within socio-legal scholarship, the Law and Society Association has been instrumental in fostering interdisciplinary and, more recently, transnational research. The association's latest and certainly one of its most promising interdisciplinary and international initiatives is the creation of Collaborative Research Networks (CRNs). These CRNs, while of relatively recent origin, have already contributed impressively. On the one hand, they have established structures and processes that provide opportunities, training, and rewards for interdisciplinary scholars. On the other hand, the CRNs have demonstrated the multiplicity of ways in which socio-legal scholarship can bring all manner of research tools to bear on topics that cross disciplinary and national boundaries—incorporating the global and the local as well as the mediating forces and institutions betwixt and between.
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Conditionality: Forms, Function, and History
Vol. 4 (2008), pp. 13–29More LessThe International Monetary Fund (IMF) is famous for its practice of conditionality—making the disbursement of resources to national governments contingent on the performance of certain policies. We survey the history of conditionality and show that the IMF is only one of many organizations that have historically engaged in this practice. Conditionality can be imposed by either private lenders (such as banks) or official organizations (such as international financial institutions), through a range of policy instruments, and to serve different kinds of goals. Over the course of the twentieth century, the conditionality of private lenders came to be replaced by official conditionality and was increasingly applied exclusively to the governments of developing countries. Today, conditionality is being used by more official organizations to address a broader range of goals than ever before. At the same time, however, conditionality is beset by critics who argue that it is illegitimate or ineffective. In response to such criticisms, the IMF and other practitioners of conditionality have developed new techniques and have attempted to bolster their legitimacy by making their operations more transparent and by emphasizing recipient-country participation.
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Organizations, Regulation, and Economic Behavior: Regulatory Dynamics and Forms from the Nineteenth to Twenty-First Century
Vol. 4 (2008), pp. 31–61More LessCurrent scholarship suggests that instead of fueling deregulation and a race to the bottom, globalization and neoliberalism often go hand in hand with the expansion of regulatory rules and agents. We survey efforts to address this paradox. Building on analyses of nineteenth- and twentieth-century regulation, research on the current period has produced two critical analytical advances. It has developed new, multilevel conceptions of globalization, international interdependence, and their effects on regulation. Moreover, in grappling with new regulatory experiments, research has moved beyond command and control to reconceptualize regulation as an institutional form. Yet in its haste to understand the new century, this research has barely begun to produce systematic analyses of whether and how new forms are translated into practice and shape organizational behavior. It also assumes discontinuity between new forms and their bureaucratic predecessors, leaving unexplored how concepts developed for the new century can shed new light on pre-twenty-first-century forms. We propose strategies for future research on both these fronts.
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The Political Economy of American Indian Gaming
Vol. 4 (2008), pp. 63–82More LessSince the late 1980s, the commercial gaming industry has grown rapidly on American Indian reservations. Today, more than 200 Indian nations own more than 400 gaming operations in 28 states, yielding revenues in 2006 of more than $25 billion. How did this come about and what are the effects on Indian nations and on non-Native communities? The organization of contemporary Indian gaming operations has its roots in tribal-state conflicts dating to the late 1970s. It is a governmental activity, carried out by tribal governments on the basis of the preexisting rights of Indian nations, although it has been substantially constrained by congressional legislation and federal court decisions. While gaming's effects are unevenly distributed across tribes, its political, economic, and social impacts on many Indian reservations have been significant and positive, and it has had positive economic effects on many non-Native communities as well, particularly in distressed areas. But our understanding of gaming's effects is hindered by a lack of comprehensive case studies of gaming-related tribal decision making and of gaming's effects on both Native and non-Native communities.
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After Inclusion
Vol. 4 (2008), pp. 83–102More LessWhat forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to antidiscrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment. They include a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these “after inclusion” workplace difficulties theoretically, empirically, and doctrinally.
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Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences
Vol. 4 (2008), pp. 103–122More LessLegal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a “perpetrator” model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that documents the pervasiveness of unintentional bias and the persistence of organizational processes that generate workplace discrimination. This narrow legal conception, coupled with a system of employment discrimination litigation that emphasizes individual claims and individual remedies, fails to support the organizational approaches that are most promising for redressing workplace discrimination. We review the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination, and the impact of equal employment law on organizations. We conclude by discussing the reasons for and implications of this divergence between law and social science.
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Providing Expert Knowledge in an Adversarial Context: Social Cognitive Science in Employment Discrimination Cases
Vol. 4 (2008), pp. 123–148More LessQuality science provides the foundation for expert testimony in court, a claim illustrated here by three established principles of social cognition frequently applied to litigation in employment discrimination cases. First, dual processes, automatic and controlled, underlie “hidden” bias. The Implicit Association Test exemplifies one controversial but scientifically tractable application of such automaticity principles. Second, encoding and attention reveal incredibly early bias. Their potential application via neuroscience in the courtroom will challenge both science and the law. Third, mental construal produces categorical representation. Legal applications show categories’ tenacity despite commonsense expectations about the impact of individuating information. Psychological scientists, expert witnesses, legal scholars, legal practitioners, and organizational managers each benefit when quality science is imported into legal contexts. Normal science disagreements should not mistakenly tarnish the credibility of quality science.
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Failed Forensics: How Forensic Science Lost Its Way and How It Might Yet Find It
Vol. 4 (2008), pp. 149–171More LessA group of nonscience forensic sciences has developed over the past century. These are fields within the broader forensic sciences that have little or no basis in actual science. They are not applications of established basic sciences, they have not systematically tested their own hypotheses, and they make unsupported assumptions and exaggerated claims. This review explains the nature and origins of those nonscience forensic fields, which include the forensic individualization sciences and certain other areas, such as fire and arson investigation. We explore the role of the courts in maintaining the underdeveloped state of these fields and consider suggestions for improving this state of affairs (addressing the potential role that could be played by these fields themselves, by the courts, and by normal sciences).
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Convicting the Innocent
Vol. 4 (2008), pp. 173–192More LessAlmost everything we know about false convictions is based on exonerations in rape and murder cases, which together account for only 2% of felony convictions. Within that important but limited sphere we have learned a lot in the past 30 years; outside it, our ignorance is nearly complete. This review describes what we now know about convicting the innocent: estimates of the rate of false convictions among death sentences; common causes of false conviction for rape or murder; demographic and procedural predictors of such errors. It also explores some of the types of false convictions that almost never come to light—innocent defendants who plead guilty rather than go to trial, who receive comparatively light sentences, who are convicted of crimes that did not occur (as opposed to crimes committed by other people), who are sentenced in juvenile court—in fact, almost all innocent defendants who are convicted of any crimes other than rape or murder. Judging from what we can piece together, the vast majority of false convictions fall in these categories. They are commonplace events, inconspicuous mistakes in ordinary criminal investigations that never get anything close to the level of attention that sometimes leads to exoneration.
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The Psychology of Confessions
Vol. 4 (2008), pp. 193–217More LessDespite the potency of confession evidence in criminal law, recent DNA exonerations indicate that false confessions are a contributing factor in numerous wrongful convictions. After distinguishing between voluntary, compliant, and internalized false confessions, this article reviews research implicating a sequence of three processes responsible for false confessions and the adverse consequences of these confessions. First, police often target innocent people for interrogation because of erroneous judgments of truth and deception made during preinterrogation interviews. Second, innocent people are sometimes induced to confess as a function of certain police interrogation tactics, dispositional suspect vulnerabilities, and naive mental state that accompanies innocence. Third, people cannot readily distinguish between true and false confessions and often fail to discount those confessions they perceive to be coerced. At present, researchers are seeking ways to improve the accuracy of confession evidence and its evaluation in the courtroom.
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Forecasting Methods in Crime and Justice
Vol. 4 (2008), pp. 219–238More LessResearchers who study crime and justice have been forecasting a variety of outcomes for nearly a century. Perhaps the most well known are forecasts of behavior after release from prison. Other examples include forecasts of prison populations and time trends in crime. However, it is very difficult to determine how accurate such forecasts have been because few forecasts have been properly evaluated. In the hope of improving crime and justice forecasts in the future, this article reviews modern forecasting methods and their applications to crime and justice questions. Among the key challenges for researchers are how best to arrive at useful forecasting models, taking the costs of forecasting errors into account, and estimating nonlinear relationships.
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Undercover Policing and the Shifting Terms of Scholarly Debate: The United States and Europe in Counterpoint
Vol. 4 (2008), pp. 239–273More LessAmong investigative tactics, undercover policing is unique in the extent to which it allows the police to shape the events they investigate. Yet this shared feature of undercover investigations produces very different academic controversies in the United States and Europe. European scholars fear the implications of legalizing tactics that had previously been tolerated, if at all, at the margins of legality. By contrast, American commentators seek to unsettle what they view as complacency about a tactic that is used far more widely in the United States than in Europe. In Italy and Germany, a long tradition of scholarship in criminal law treats police infiltration as a problem of government law-breaking. In France, a distinguished sociological tradition views undercover tactics as a privileged terrain of turf warfare between competing government agencies. Because of their interest in the entrapment defense, American academics focus largely on the criminal responsibility of targets, not operatives. More recently, American and European scholars have shifted their interest away from the criminal law, with its emphasis on the individual criminal liability of targets and undercover operatives, toward the exploration of new means for distributing responsibility among complementary institutional actors like police, prosecutors, and judges. Undercover policing has thus increasingly become a problem of criminal procedure, in which undercover tactics have come to be framed as threats to privacy, freedom of association, trial rights, and other civil liberties. As criminal investigations become increasingly transnational, criminal procedure has provided a shared framework of criticism and a familiar repertoire of solutions, facilitating national comparisons and sometimes muting national differences in regulatory norms and approach.
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Jury Systems Around the World
Vol. 4 (2008), pp. 275–297More LessLay citizens participate as decision makers in the legal systems of many countries. This review describes the different approaches that countries employ to integrate lay decision makers, contrasting in particular the use of juries composed of all citizens with mixed decision-making bodies of lay and law-trained judges. The review discusses research on the benefits and drawbacks of lay legal decision making as well as international support for the use of ordinary citizens as legal decision makers, with an eye to explaining a recent increase in new jury systems around the world. The review calls for more comparative work on diverse approaches to lay participation, examining how different methods of including lay participation promote or detract from fact finding, legal consciousness, civic engagement, and citizen power.
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Women in the Legal Profession
Vol. 4 (2008), pp. 299–332More LessIn recent years, the legal profession has undergone significant change, with rapidly rising numbers of women among its membership. Scholars of legal history, sociology, economics, organizational behavior, and law have examined various dimensions of the feminization of the legal profession. This review traces the parameters of integration and inequality in the careers of women and men in the contemporary legal profession. We document and assess the theoretical explanations of gender inequalities that persist across legal education, hiring, remuneration, promotions, and other professional opportunities in law. We also examine women's responses to their experiences and women's impact on the law and the profession.
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The Reform of Legal Education in East Asia
Vol. 4 (2008), pp. 333–360More LessLegal education in East Asia, particularly in China, Japan, and Korea, is undergoing fundamental changes, both institutionally and pedagogically. A common feature of those changes is the introduction of elements of the American system of legal education. Although traditional legal education in these countries has been provided at an undergraduate level and has not been considered professional legal education, recent and current reforms in those countries are either adding postgraduate professional law schools to existing undergraduate legal education or replacing undergraduate legal education with postgraduate professional law schools. The main parts of this review describe key features of those reforms in the three countries. The conclusion draws some theoretical implications from similarities and differences among the three countries, particularly in terms of the role of the top elite as agents of reform and of the constraints of different local conditions.
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The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order
Vol. 4 (2008), pp. 361–384More LessThis review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and either explain how the political system as a whole might be redesigned to better deliver those goods or accept second-best constitutional goods that can actually be delivered by some attainable combination of political institutions.
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Toward a New Sociology of Rights: A Genealogy of “Buried Bodies” of Citizenship and Human Rights
Vol. 4 (2008), pp. 385–425More LessAlthough a thriving social science literature in citizenship has emerged in the past two decades, to date there exists neither a sociology of rights nor a sociology of human rights. Theoretical obstacles include the association of rights with the philosophical discourse of normativity, the abstraction of universalism, and the individualism attributed to rights-bearers. Parallel historical obstacles dating from the Universal Declaration of Human Rights (UDHR) in 1948 include American exceptionalism and racism, cultural relativism, the institutional primacy of sovereignty, and the privileging of civil rights over socioeconomic rights. Except in the United States, today human rights discourse is the lingua franca of global struggles*; building a sociology of rights as a collective project is now imperative. This article unearths and reconstructs 60 years of political clashes, intellectual debates, and struggles for inclusion and recognition surrounding human rights and citizenship—much of which has been hidden from history (especially African American human rights movements). We introduce a nascent but uncoordinated social science attention to rights and develop criteria for a new sociology of rights. At the nexus of human rights and citizenship rights we identify the public good of a “right to have rights,” which expresses the institutional, social, and moral preconditions for human recognition and inclusion. The concept offers a promising avenue of social science inquiry. [*Erratum]
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Previous Volumes
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Volume 20 (2024)
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Volume 19 (2023)
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Volume 18 (2022)
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Volume 17 (2021)
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Volume 16 (2020)
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Volume 15 (2019)
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Volume 14 (2018)
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Volume 13 (2017)
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Volume 12 (2016)
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Volume 11 (2015)
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Volume 10 (2014)
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Volume 9 (2013)
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Volume 8 (2012)
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Volume 7 (2011)
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Volume 6 (2010)
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Volume 5 (2009)
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Volume 4 (2008)
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Volume 3 (2007)
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Volume 2 (2006)
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Volume 1 (2005)
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Volume 0 (1932)