Annual Review of Law and Social Science - Volume 5, 2009

Evidence from a number of research methods converges to suggest that when a person registers a transgression against self or others, the person experiences an intuitively produced, emotionally tinged reaction of moral outrage. The reaction is driven by the just deserts–based retributive reactions of the person to the transgression rather than, for instance, considerations of the deterrent force of the punishment. In experimental games arranged so that trust and fairness transgressions occur, participants punish transgressors and experience rewarding brain states while doing so, and they punish even if they were not themselves the target of the violation. What, if any, implications does this have for the punishment component of societal systems of justice? Would it be possible to construct sentencing practices that, to some extent, incorporated citizens’ sense of just punishments? What would be gained by doing so? And what would be lost?

Over the past 30 years, experimental economics has grown as a specialization and is now viewed as an appropriate methodology with which to study economics questions. This methodology has been applied to law and economics as well. This article reviews three streams of research in experimental law and economics: the Coase Theorem, Legal Institutions, and the Foundations of Law. The hope is to provide some examples of how experimental research can inform law and economics and to highlight avenues for future research.

Regulatory capitalism—a social, political, and economic order characterized by a proliferation of both markets and state and nonstate attempts to regulate markets and business conduct—creates the opportunity for theoretically and politically significant research on compliance. The plural and decentered nature of regulation, and therefore of compliance, in regulatory capitalism creates significant complexity and difficulty for social scientists in the conceptual definition and operationalization of regulatory compliance, however. We survey the different ways in which empirical researchers have studied business compliance with regulation, and their strengths and weaknesses. In doing so, we review and interrogate the literature on regulatory compliance to understand what it is that researchers study when we study business compliance with regulation, and what we might have been missing or assuming.

This review discusses the changes in welfare policies and the role of law in those changes in the United States and the developed world. In 1996, the U.S. Congress and President Clinton committed to “ending welfare as we know it” and changed welfare to workfare. Under the “work first” strategy, recipients are pressured to take the first entry-level job they are offered. Caseworkers, overworked and undertrained, are under pressure to produce favorable statistical results. They concentrate on those who are the most employable or take the least amount of time to become employable. Left out are those who have significant barriers to employment. There has been a rapid decline in welfare caseloads. Most who left the rolls have been sanctioned, have been denied entry to welfare, have taken low-paid work, and remain in poverty. This welfare-to-work strategy has spread to other parts of the developed world. Faced with sluggish economies and growing unemployment, welfare states have been changed from passive to active. Welfare has become targeted and conditional, in what is now termed active labor market policy. Management of welfare programs has devolved to local governments and private organizations, termed marketization.

People often act in ways that are inconsistent with their own stated desires. What, if anything, can or should legal policy do about this disjunction? In recent years, legal and social science scholarship has increasingly examined self-control and related concepts. In this review, I discuss the policy implications of this work. I begin by defining willpower, disaggregating it from other, related problems, and considering the terms of the intraself conflict it implies. Drawing on ideas that are well recognized in the literature, I divide the costs of willpower lapses and their prevention into the failure costs of bad decisions, the exercise costs associated with exerting willpower effort, and the erosion costs that individuals and society as a whole might incur over time if willpower is not regularly exercised. After surveying a variety of possible policy responses to self-control problems, I offer some suggestions for future research.

In recent decades, as politicians and journalists have paid greater attention to religion, social scientists have too. Much attention has focused on religion in relation to various indices of social and civic well-being. There are now four different schools of thought, two academic and two popular, regarding the relationship between religion and crime. While much worthwhile scientific research has been done, religion remains a neglected variable in criminology and in criminal justice studies. The popular view that “religion reduces crime” is neither without empirical foundation nor without need for far more refined and intensive testing. This article offers a simple algorithm for future social science research on crime and religion in relation to three different faith factors, three different species of religious nonprofit organizations, three different categories of crime, and three different types of empirical research.

Contemporary advances in the field of political economy, particularly those concerning the subject of delegated authority, can provide a unifying framework for analyzing the behavior and political context of criminal prosecutors in the United States. This perspective, which focuses on the extent of conflict between an official's motives and those of other actors, and the degree to which information is unevenly distributed among those actors, is well suited for studying prosecutors—the vast majority of whom are elected but whose accountability is frequently called into question. We apply this perspective to three areas in the existing literature on prosecutors: plea bargaining, courtroom communities, and public corruption prosecution.

Research on eyewitnesses has led to the development of a knowledge base about the factors that influence eyewitness identification accuracy and to changes to criminal justice policies concerning the collection of eyewitness identification evidence. In this review, we provide an overview of the field of eyewitness identifications and suggest future directions for research. First, we provide the context for the study of eyewitness identifications. Second, we review a sample of factors that affect the accuracy of eyewitness identifications, with attention to both the conditions under which crimes occur and the manner in which identification tests are conducted. Third, we review several findings about which there is some contemporary debate or controversy. Finally, we highlight opportunities for further research on eyewitness identifications by drawing upon basic research in social and cognitive psychology and lessons from actual cases.

Punitive damages is a controversial topic in American law. Defenders of punitive damages see these awards as a useful mechanism for sanctioning and deterring egregious conduct, particularly the conduct of corporations not subject to the sanctions of the criminal law but still harmful to society. Opponents of punitive damages argue that they are capriciously and unfairly awarded by juries and that the threats of large punitive awards stifle the invention of new products and harm America's business competitiveness in the world. Much of the focus of the controversy involves the role of the jury in awarding punitive damages. This article presents the historical and doctrinal background to punitive damages and then reviews the empirical evidence bearing on the subject. It concludes by presenting future research issues.

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications and both are amenable to straightforward social scientific analysis. This article surveys the relevant research on constitution-making, describes the conceptual issues involved in understanding constitution-making, reviews the various claims regarding variation in constitution-making processes, and presents a set of baseline empirical results from a new set of data on the content and process of constitution-making.

Scholars studying interactions among multiple communities have often used the term legal pluralism to describe the inevitable intermingling of normative systems that results from these interactions. In recent years, a new application of pluralist insights has emerged in the international and transnational realm. This review aims to survey and help define this emerging field of global legal pluralism. I begin by briefly describing sites for pluralism research, both old and new. Then I discuss how pluralism has come to be seen as an attractive analytical framework for those interested in studying law on the world stage. Finally, I identify advantages of a pluralist approach and respond to criticisms, and I suggest ways in which pluralism can help both in reframing old conceptual debates and in generating useful normative insights for designing procedural mechanisms, institutions, and discursive practices for managing hybrid legal/cultural spaces.

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law.

This review proposes that the recursivity of law offers a promising framework for sociolegal and interdisciplinary research on global norm-making. The recursivity approach is systematic, generates hypotheses and questions about global actors and mechanisms, takes seriously historical contingency, and is inherently comparative across issue areas and different levels of governance. In global lawmaking, recursivity proceeds principally through the intersection of three interacting cycles of global normmaking, national lawmaking, and the interaction between the two. With particular focus on genocide and war crimes, violence against women, trade law, and climate change, the review demonstrates how four mechanisms—actor mismatch, diagnostic struggles, contradictions, and indeterminacy—drive forward these cycles of reform until the inherent tensions within them are resolved and normmaking settles. A sociolegal approach to the recursivity of global normmaking emphasizes (a) the politics of the legal complex, (b) the constitutive power of legal concepts, (c) the structure and dynamics of global regulatory institutions, and (d) the formal properties of global law. The review concludes with generalizations about global normmaking and particularly promising topics for sociolegal scholarship.

Sovereignty has always been a controversial topic in international law. The most prominent attempts to rethink sovereignty in recent times have arisen out of the policies of the Bush administration, particularly its conceptualization of self-defense and its attempts to promote democracy worldwide. This review explores the debates surrounding these initiatives and the larger theoretical issues they raise about the relationship between international law and sovereignty. International law has long struggled with the problem of how sovereign states that make international law can also be bound by it. Self-defense raises this problem in a particularly acute form because it is one of the fundamental rights of sovereignty and because it can be seen to precede the law itself. The review also explores the various ways in which the relationship between democracy and international law has been examined in the recent literature. Many of the analyses of sovereignty rely, either implicitly or explicitly, on distinctions between different types of states—democratic versus nondemocratic or, more broadly, responsible versus irresponsible states. The broad argument of this review is that the Bush administration's policies attempt to create an international legal system that resembles in many ways a return to the imperial international law of the nineteenth century.

Torture is absolutely prohibited and constitutes one of the core crimes under international law. There is a substantial body of sociolegal literature that addresses torture's illegality. But this article tackles the question “does torture work?” The analysis locates the practice of torture in historical and global perspective, accommodating but not constrained by post-9/11 scholarship on American torture. The titular question is treated more critically and comprehensively than a narrowly construed focus on the value and veracity of utterances produced as a result of pain and suffering. Drawing on scholarship from a variety of fields, the article addresses how torture works (i.e., why it has been used and its effects) in order to highlight the role of torture in the mutually constitutive histories of law-state-society relations. The final section uses the American case to offer conclusions about the efficacy and effects of torture.

Social science research on terrorism has grown rapidly in recent years, aided by social and legal studies. In this review, we examine research on the causes of terrorism and the effectiveness of strategies for countering it. We define terrorism as the threatened or actual use of illegal force directed against civilian targets by nonstate actors in order to attain a political goal through fear, coercion, or intimidation. Our review of causes is divided by level of analysis into sections on individual-, group-, and macro-level explanations. Our evaluation of counterterrorism strategies includes reviews of legal, criminal justice, military, and legitimacy campaigns. Psychopathological approaches have been largely discredited; however, evidence suggests that certain experiences, attitudes, and behaviors are overrepresented among terrorists. The potential impact of ideology, leadership, popular support, Diasporic communities, and socialization on group dynamics all provide fertile areas for additional research. Terrorism feeds on the ability of groups to portray governments and their agents as illegitimate. There is also evidence for high rates of terrorism in countries that are in democratic transition or are described as failed states. Research on connections between religious motives and terrorism is mixed. Although research on the efficacy of counterterrorism methods has grown rapidly in recent years, it is still rarely evaluated with strong empirical methods. All of these conclusions are qualified by the fact that both individual- and group-level empirical data on terrorism are in short supply.

Public support for civil liberties has undergone important changes in the past 50 years, as has scholarship on this topic. Whereas the American public was very intolerant of communists, socialists, and atheists in the 1950s and 1960s, current intolerance is now focused more on Muslim Americans and right-wing racists, among other groups. What has remained consistent is the important role played in shaping citizens’ tolerant and intolerant attitudes by their individual characteristics, such as education, authoritarianism, dogmatism, religiosity, and race. Although threat perceptions have always played an important role in explaining citizens’ support for civil liberties, this variable has gained new meaning in the aftermath of the terrorist attacks of September 11, 2001. Meanwhile, improved survey methodology now allows us to understand better the extent of democratic tolerance among Americans. In this article, we review the state of the literature on public support for civil liberties prior to 9/11 and, because we believe the terrorist attacks dramatically changed the political context, after 9/11.

Cultural property is a field of law and politics that has expanded dramatically in the past two decades. The review explores the international legal, political, economic, and technological terrain in which possessive relations to cultural forms have been articulated and incited, as well as the revitalization of human rights claims premised upon cultural grounds. Changing practices, behaviors, attitudes, and protocols regarding cultural heritage both index and reflect transformations in social relationships that are indicative of larger patterns of late modernity and decolonization. This premise is illustrated through considerations of changing practices in cultural heritage preservation, archaeological and curatorial relationships to indigenous heritage properties, development institutions and programs, uses of intellectual property, and the treatment of traditional knowledge and traditional cultural expression. A new body of negotiated proprieties is emerging in a space of unprecedented legal pluralism that constitutes a significant area for sociolegal inquiry.