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

Insurance has a long history in sociolegal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This article reviews developments in both bodies of work. It examines the relationship between liability insurance and tort law in action using the metaphors of window and frame, as well as reviews research on insurance as governance. The conclusion returns to insurance as governance in the context of liability insurance, arguing that this is an especially promising field for sociolegal research.

This article offers an overview of the debate over reparations for African Americans in the United States. We state the point in this way because there is little consensus about the cause of action for which reparations are sought, whether for slavery or segregation; for that matter, there is little agreement on the type of remedy reparations might effect. This raises the question of political mobilization for and popular views of reparations for African Americans. It is well known that whites and African Americans have very different perspectives on this issue. We seek to address the underlying reasons for and significance of this dissensus, stressing peculiarities of American political culture. Less discussed, however, have been the consequences for the reparations debate of recent historical developments in the United States—in particular, the election of Barack Obama as president of the United States. In addition to assessing the significance of these developments for the debate over reparations, we point to several new directions that the notion of reparations appears to be taking. We conclude with some thoughts about how reparations—understood chiefly in terms of their larger aim of enhancing racial equality—might realistically be achieved.

This review surveys the historical research comparing U.S. and Latin American law and slavery and describes how it has informed the development of legal studies of slavery in the Americas. The first generation of comparative work on race and slavery relied heavily on law to draw sharp contrasts between U.S. and Latin American slavery. Revisionist social historians criticized those scholars for providing a misleading top-down history of slavery based on metropolitan codes and instead emphasized demographic and economic factors that suggested pronounced variation in slavery regimes. However, social historians who study relationships of power in slaves' lives have found that they must reckon with law and legal institutions. Recently, legal historians have also begun to explore slave law from the bottom up: through slaves' claims in court, trial-level adjudications, and interactions among ordinary people and low-level government officials. Most studies of slavery stay within one national context, but a few scholars have begun comparative work once more, some examining slavery and freedom in the transnational context of the Atlantic world, others attempting comparisons of manumission in localities across legal regimes.

This article argues that law and race coconstruct each other. The idea that race is socially constructed has become widely accepted, and studies increasingly have explored law's role in shaping racial categories, racial conflict, racial ideology, and the racial order. Fewer studies have utilized a well-developed concept of race to examine how it has affected legislation, legal processes, legal ideology, and so forth. To explore how law and race are mutually constitutive, I draw on examples from a dozen monographs (all but one published since 1999) that are in-depth case studies of how law and race have interacted in diverse geographical regions over the past 400years. Cumulatively, they present new insights about how law and race are coconstructed to reproduce and transform racial inequality in society. They represent an emerging genre of sociolegal studies that reveals how law and race shape each other in an ongoing, dialectic process.

Cap and trade and carbon taxes offer the prospect of reducing greenhouse gas emissions at a lower cost to society than conventional regulation. Between these two market-based approaches, however, carbon taxes offer significant advantages, including transparency and predictability of costs, ease of implementation, and application to small and large sources alike. This article thus seeks to inform our understanding of the conditions under which carbon taxes are politically viable by comparing the experience of four jurisdictions: Finland and Denmark, which adopted carbon taxes; Germany, which adopted a related energy tax; and Canada, which rejected a carbon tax. The cases highlight the role of policy entrepreneurs in advancing academic theories about environmental taxation. However, the impact of those ideas was conditional on voters' attention to either the environmental or economic benefits of carbon taxes. Even then, business tended to be more attentive, thus winning tax concessions relative to households. Proportional electoral systems tended to facilitate adoption of carbon taxes, whereas international institutions had mixed effects, in some cases advancing harmonization and in others undermining resolve for unilateral taxation.

The career of corporate social responsibility (CSR) indicates that it evolved into a field of private and self-regulation that bears all the hallmarks of new governance. Accordingly, this review offers an analysis of CSR as a reflection on the governance turn in sociolegal studies. It relies on the literature to show (a) that socially responsible corporate practices developed in response to public critique of corporate powers and (b) that the emergent field of CSR shows capitalism's ability to transform critique into commercial and managerial assets. Devoting specific attention to the role of academic research and theory in consolidating the framework of new governance, the review reflects upon the trajectory of law in latter-day capitalism and theorizes governance as the privatization of the sources and instruments of authority.

The past decade has seen a return of interest in empirical research within the U.S. legal academy, hearkening back to a similar empirical turn during the ascendancy of Legal Realism in the New Deal era. However, the current revival of legal empiricism has emerged against the backdrop of several well-established traditions of empirical sociolegal research in the interdisciplinary law-and-society movement and in the social science disciplines. This article examines two of the most prominent manifestations of the “new” legal empiricism, empirical legal studies (ELS) and new legal realism (NLR), and it situates them within the preexisting sociolegal terrain. The analysis concludes by considering possible futures for empirical research on law.

Despite persistent calls for more empirical legal scholarship, only recently have scholars provided evidence that empirical legal scholarship has indeed entered the mainstream of the legal academy. Defining empirical scholarship as the systematic organization of a series of observations with the method of data collection and analysis made available to the audience, we analyzed the content of 60 law review volumes published in the years 1998 and 2008. Our content analysis revealed that by 2008 nearly half of law review articles included some empirical content. Production of original research is less common. The highest-ranked law reviews published more articles and included more complex research designs. Analyzing the benefits and costs of publishing in law reviews, we predict that law reviews will see more original empirical scholarship in the future, despite the increased availability of peer-reviewed publication outlets.

Much of the literature on human subject regulation asserts that Institutional Review Boards (IRBs) have failed at the task of regulating human subjects research. These critiques of IRB law can be grouped into three loose categories: critiques of IRB law as law, critiques of IRBs as regulation, and critiques of IRBs as a system of norm creation. Moving beyond critique, we rethink the literature on IRBs drawing on the tools and scholarship of the social sciences. In particular, we examine human subjects regulation as an insufficient remedy to inequalities between weak and powerful actors, as a site of professional claims- and career-making, and as an occasion for institutionalization. Finally, distinguishing between the regulation of science and the regulation of ethics, we observe that the latter is far more difficult because ethics are contextual and subject to social construction. For these reasons, IRBs often substitute bureaucratic ethics for professional ethics.

Two meta-theoretical traditions mark research on conflict resolution in organizations: the rationalist tradition, which portrays organizations as goal-directed collectivities and conflict resolution as a threat to efficiency and performance; and the cultural tradition, which portrays organizations as normative collectivities constituted by ongoing social interaction, interpretive dynamics, and institutional environments, and emphasizes the interplay of law and social inequalities in interpersonal and collective organizational conflict resolution. Within these traditions, we distinguish between structural and processual styles of research, noting the empirical methods favored in each tradition, research that blurs the boundaries between the traditions, and vanguard scholarship. Finally, we discuss several potential areas of research that could enhance meaningful intellectual exchange between the traditions.

This review examines the complex interplay among social movements, organizations, and law. Although the sociological literature has recently been attentive to each pair of two of these social arenas—that is, to social movements and organizations, to organizations and law, and to law and social movements—there has been no effort to theorize the relationship among all three of them. We review the literature on each pair of institutions and then suggest ways in which insights about the omitted institution might inform extant work. Finally, we offer a new framework for examining social movements, organizations, and law together. Envisioning the three social arenas as overlapping and mutually constitutive social fields, we suggest that institutional change may occur when exogenous shocks produce contention and settlement in adjacent fields or when endogenous motion occurs as ideas within one field gradually influence practices in adjacent fields.