Annual Review of Law and Social Science - Volume 6, 2010

This review analyzes four decades of law-and-society scholarship by examining and contrasting the first and last 13 years of the Law & Society Review (LSR). It compares the programmatic statements of Law and Society Association presidents and LSR editors with the scholarship published, offering explanations for and critiques of project and practice.

The contingency of legality creates opportunities for individuals and collective associations to oppose its norms and requirements. This article examines the context and dimensions of resistance or opposition to legality, why resistance occurs, the strategies and tactics used to conduct resistance, the outcomes of acts of resistance, and whether resistance is a meaningful social and political activity.

To reflect on how we, in 2010, might make the best use of the analytical tools developed by Michel Foucault, we need first to go back to the 1970s and situate his work in the intellectual history of the European left. We then see that Foucault was extremely careful to avoid developing a new model, a grand social theory that might replace the Marxism that was dominant then. Instead, he cultivated more empirically grounded, historically specific habits of thought, in a series of books that did not follow a consistent plan. In Foucault's work, the basic terms are themselves tactical weapons, and hence do not have fixed meanings. That is, the terms are not concepts. This has gone largely unnoticed in the literature: Most of the scholars who use Foucault adopt the content but use it to prop up old forms. The governmentality literature has been particularly influential in many law and society circles, and it tends to use Foucault to produce an improved sociology of modernity—rather than to question our own desire to call ourselves modern and challenge our yearning for static models. This review examines one attempt to turn Foucault into a legal philosopher, a more novel but equally problematic effort to use Foucault to renovate old disciplines. The key argument of the review is that Foucault's work is most useful when, rather than attempt to “apply” it, we use it as inspiration to ourselves to examine the preconditions and foundations of our own present's intellectual habits.

Law and neuroscience (sometimes neurolaw) has become a recognized field of study. The advances of neuroscience are proving useful in solving some perennial challenges of legal scholarship and are leading to applications in law and policy. While caution is appropriate in considering neurolaw approaches, the new knowledge should—and will—be put to use. Areas of special attention in current neurolaw scholarship include (a) techniques for the objective investigation of subjective states such as pain, memory, and truth-telling; (b) evidentiary issues for admitting neuroscience facts and approaches into a court proceeding; (c) free will, responsibility, moral judgment, and punishment; (d) juvenile offenders; (e) addiction; (f) mental health; (g) bias; (h) emotion; and (i) the neuroeconomics of decision making and cooperation. The future of neurolaw will be more productive if challenges to collaboration between lawyers and scientists can be resolved.

This review examines how advances in neuroscience are affecting civil law, criminal law, and law enforcement. Brain imaging techniques have already been used to detect brain injury, assess pain, and determine mental state and capacity for rational thought. There is also much excitement about using neuroimaging to detect lies and deception in legal and national security contexts. Despite claims of neuroimaging's revolutionary nature, numerous questions should be answered about their validity and reliability before they become widely adopted. Neuroscientists still do not fully understand the link between brain activity and behavior or memory formation. Important legal and ethical questions remain unresolved, particularly around the potential effect on juries and judges of colorful, but scientifically unproven, brain images. Finally, the very impetus behind the use of neuroscience in the legal system—to avoid the subjectivity and uncertainty of more traditional methods for assessing thought and behavior—may be misguided.

In criminal cases, evidence about psychological syndromes is typically introduced by the defense in support of insanity, self-defense, or imperfect self-defense claims and by the prosecution to show that a criminal act occurred. The admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome, or XYY syndrome depends in the first instance on how insanity, self-defense, and other defensive doctrines are defined (the materiality issue). Additionally, this type of testimony, as well as prosecution-proffered evidence about phenomena such as rape trauma syndrome and abused child syndrome, must bear indicia of reliability (the probative value issue), add to the fact finder's knowledge (the helpfulness issue), and avoid distracting or confusing the fact finder (the prejudice issue). The ultimate admissibility decision involves consideration of the scope of the criminal law, the scientific methodology associated with the syndrome, the counter-intuitiveness of the evidence, and the role and capacities of juries.

The great expansion in imprisonments in the United States in the past 35years is puzzling partly because this abrupt growth is completely unprecedented. Changes in the crime rates alone cannot explain this trend, and ideational accounts that focus on penal styles are problematic. Political explanations, however, show promise, given that governments must provide domestic order and candidates can use public concerns about race and street crime to win elections. This review highlights the empirical literature in sociology and also discusses some important findings in political science and economics. Law-and-order campaign appeals combined with a covert emphasis on the links between race and street crime used to overcome Republican electoral disadvantages seem to provide the most plausible explanations for the rapid increase in U.S. imprisonment rates in this racially divided society. Dissimilar political arrangements help explain why imprisonment trends in the United States have sharply departed from these trends in the affluent but less direct democracies in Western Europe.

While traditional criminology has ignored the historical dimension of female crime, social historical literature has examined the interplay between gender and the criminal process in a variety of historical settings. This review examines studies focusing on changes in crime, prosecution, conviction, and punishment patterns over time, as well as studies in particular settings. From these studies we conclude that crime has not always been a predominantly male phenomenon and that female crime rates have changed over time. We also conclude that, within the different categories, women defendants in particular were perceived through a gendered perspective, and their criminalization and punishment, as well as its representation in popular culture, reflected this special perspective.

This review examines the relationship between social science research and domestic violence activism. It explores how the feminist conception of domestic violence, as formulated early in the movement, has had a resounding influence on the development of both theory and practice. The review demonstrates how social science research has often followed uncritically the path set out by anti–domestic violence activists. It provides an examination of how studies of the efficacy of legal sanctions fail to raise questions about the consequences of these interventions into private lives. The review also considers how the feminist conception of domestic violence has led to unresolved scholarly debates about the frequency and attributes of women's violence as compared to men's. In addition, it shows that the failure of feminism's explanatory framework to guide theory and practice has contributed to the triumph of a gender-neutral understanding of the problem and its reformulation as intimate partner violence. Consequently, the field has seen the growth of applied social science that has adopted a gender-neutral framework and relied upon the mechanisms of universal screening and risk management to address domestic violence. Finally, the value of ethnographic approaches are considered, particularly in regard to their potential to open the field to broader issues about social control, local culture, and inequality and their relation to the persistence of domestic violence as a social problem.

Female genital cutting practices (FGCs) provide a contemporary lens into the relationship between law and culture in a global context. In this discussion, we take both legal and cultural pluralism seriously to illustrate how laws and cultures interact to create or resist change. We consider law and culture at the international, national, and community levels. The literature shows how “insiders” who speak the language of “outsiders” can quickly lose their legitimacy at any of these levels. We also discern that the impact of law is notably more effective in the global North than in the global South although laws in all countries are typically adopted with little input from FGC-practicing communities. The greater effectiveness of laws in the North occurs because they tend to be accompanied by changes in informal social control mechanisms. In the global South, when trusted organizations work with communities to increase overall living standards as well as combat FGCs, they tend to be highly effective in reducing the practices. Ultimately, to determine the impact of international and national laws, scholars need to look at development efforts as well as anti-FGC statutes.

Corruption has serious economic and social costs and can undermine government legitimacy. Economic analysis can help one understand the incentives for bribery and extortion and the deterrent effect of the law. Such analysis suggests that the law in many jurisdictions ought to be redesigned. Penalties are poorly tied to the marginal benefits of bribery. Small bribes often are more effectively deterred than larger ones because penalties are not tied to the perpetrators' gains. Economic analysis also highlights the tension between obtaining evidence to bring a case ex post and deterrence ex ante. Furthermore, enforcement programs have not incorporated bureaucratic structure in a sophisticated way, and in many countries the criminal law only applies to individuals, not firms. In short, economic analysis can help guide the reform debate by proposing workable law enforcement strategies for the control of bribery and extortion.

Recent scholarship on crime, law, and society in China and Japan has addressed the politics of globalization and legal reform in both countries, but political context is not self-revealing. The literature on China has focused too often on the role of the police in an authoritarian state without sufficiently taking into account the changing balance of power among judicial actors, which may be more important for understanding the shape and direction of Chinese legal reform. In contrast, the literature in Japan has recently begun to grapple with the new politicization of criminal justice but could do more to show how these concerns are intimately connected to deeper unease about the country's future. In suggesting new ways of analyzing the politics of criminal justice in China and Japan, this article also argues for increased attention to the social consequences of crime's increasing political saliency, including patterns of marginalization and constructions of deviancy.

The juncture of human rights and policing is a relatively recent field of scholarship. It tends to explain the relationship between policing and human rights as one of exigency and necessity, culminating in the idea of police as human rights defenders. An ethnographically rich scholarship on policing has emerged both as a critical response to these assumptions and out of an awareness of the impossible but nevertheless central role that policing has come to play in a neoliberal age. This critical scholarship takes the juncture of policing and human rights as a historically specific phenomenon and enables us to understand many of its contingencies. It reintegrates the normative presuppositions of human rights policing as societal facts among other societal facts and points to how human rights and policing enable and foreclose new ways of ordering society and bring about particular articulations of biopolitics with assertions of sovereignty.

South Africa became a constitutional democracy in 1994. This article reviews the first 15years of constitutional jurisprudence produced by the country's first Constitutional Court. While the court interpreted the Constitution to eradicate racist, sexist, and homophobic legislation and similar common law rules, it did little to promote a comprehensive transformation of the legal system and thus the patterns of distribution that were supported by the law. This is illustrated particularly in the area of social and economic rights. The conclusion is thus reached that the new legal foundations are insufficiently resilient to hold the weight of constitutional expectation.

Bills of rights are now central components of liberal democratic constitutions. But debates over the character and content of bills of rights are no longer at the center of more recent rounds of postconflict constitutional politics. This review puzzles through the rise and decline, but persistence, of rights-based constitutionalism. Neither comparative constitutional law nor constitutional politics offers the answer. The literature on civil war settlement suggests that bills of rights serve two functions in postconflict constitutions: a regulative role to check the abuse of public power and a constitutive role to serve as the basis of a new constitutional identity. Bills of rights cannot do the work that is expected of them. Politicized judiciaries, constitutional underenforcement, and the ex post nature of judicial review undermine the ability of the bill of rights to serve as a credible commitment against future abuses of human rights. Moreover, the idea of a bill of rights as a source of shared political identity abstracted from a contingent political and historical context is unlikely to succeed in practice.

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that came to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court's most important criminal-procedure decisions” (White 2003–2004), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50years of legal developments and social science research.

Since the 1990s, there has been an explosion of empirical and theoretical work dedicated to advancing strategic accounts of law and legal institutions. Reviewing this extensive literature could be accomplished in multiple ways. We chose an approach that underscores a major contribution of strategic accounts: that they have forced scholars to think about the interdependent—i.e., strategic—nature of judicial decisions. On strategic accounts, in other words, judges do not make decisions in a vacuum, but rather take into account the preferences and likely actions of other relevant actors, including their colleagues, their judicial superiors, and members of the other branches of government. After defining strategic analysis and how it differs from other approaches to judicial decisions, we examine the literature on the forms of strategic behavior in which (preference-maximizing) judges engage when interacting with these three sets of actors.

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of enquiry—environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.

Democratic theorists assume that government policy responds to public opinion. But public opinion may be influenced by other political actors through the mass media instead. Scholars agree that the news media have become more attentive to and supportive of lesbian and gay rights over time, and they identify several factors as explanations for the change. While events, the gay rights movement, official statements, and government action may have had an effect, coverage was contingent on the decisions of news institutions and media owners to devote attention to them. There have been few studies on the media's impact, but decisions to cover the gay rights movement appear to have moved public opinion. Despite setbacks, continued debate over gay rights is likely to generate favorable media attention and lead to increased public support for lesbian and gay rights over time.

Social scientists have conducted numerous empirical and experimental studies of self-reported happiness. This review focuses on two fundamental areas of research in happiness and law, namely alternative measures of happiness and various policies to foster happiness. There are many aspects, concepts, dimensions, and visions of happiness. Empirical findings often depend critically on which particular measure of happiness is analyzed. Happiness studies have applications to national well-being indices; policy evaluation; civil judicial and jury decision making about liability and damages in cases of sexual harassment, employment discrimination, and torts; optimal tax law design; family law; criminal sentencing; legal education; and legal practice. There are decision-making, health, productivity, and psychological benefits to various types of happiness. There are more or less paternalistic happiness interventions, including policies to encourage regular physical exercise, good sleep, and meditation. Hopefully, analysis of these topics offers exemplars of possibilities and limits to utilizing happiness studies in designing legal policy.