Annual Review of Law and Social Science - Volume 7, 2011

In the 1960s, social scientists speculated about what the consequence of legal, cultural, and racial pluralism would be in Africa after independence. Now, 50 years later, we know that, though transformed, cultural pluralism remains a shaping force. In Tanzania, from the 1960s on, there was an effort to build equality and national loyalty through socialism. In South Africa, after 1994, there were two major kinds of legislation that rejected the racially divisive past and attempted to repair its damage. One established the Truth and Reconciliation Commission; the other was a cluster of laws that designed a scheme of land reform. Both have been studied by anthropologists. Here, I review the Tanzanian and the two South African instances. The incompleteness and unevenness of what was achieved can be compared with the grand legislative intentions that preceded the law making. This has profound implications for the analysis of social process and for the relationships among the state, its ambitions, and its citizens.

We review advances toward credible causal inference that have wide application for empirical legal studies. Our chief point is simple: Research design trumps methods of analysis. We explain matching and regression discontinuity approaches in intuitive (nontechnical) terms. To illustrate, we apply these to existing data on the impact of prison facilities on inmate misconduct, which we compare to experimental evidence. What unifies modern approaches to causal inference is the prioritization of research design to create—without reference to any outcome data—subsets of comparable units. Within those subsets, outcome differences may then be plausibly attributed to exposure to the treatment rather than control condition. Traditional methods of analysis play a small role in this venture. Credible causal inference in law turns on substantive legal, not mathematical, knowledge.

Drug use is pervasive, generally private, and of long standing. The social effects are sometimes problematic, but it is a large step to declare a war on drug use. This review considers how that approach came to be adopted in the United States and why it persists despite its evident shortcomings. This war could not be maintained without societal racism and the manipulation of racial stereotypes to make drugs something to be feared. Beneath society's adherence to a failed criminalization approach is a startling indifference to its racial impact, which includes a vast increase in the number and representation of poor minorities in the prison system, particularly young African American males. Tracing the war on drugs to its roots reveals a broader domain in which harsh legislation, prosecution, and incarceration combine to harm and stigmatize minority populations, while a pervasive ideology of color blindness discourages serious discussion of inherent racial bias in the criminal justice system.

For decades, the debate over the merits of ending drug prohibition has carried on with little consequence. The recent near success of a cannabis legalization initiative in California suggests that citizens and politicians alike are more receptive to calls for change. We review basic research on deterrence and prices as well as emerging evidence on the potential empirical consequences of various alternatives to full prohibition, including depenalization, tolerated home cultivation, prescription regimes for cannabis and heroin, and retail sales of cannabis in Dutch coffee shops. The results are encouraging for advocates of these specific reforms, but the cases are inadequate for addressing the potentially more dramatic effects of full-scale commercial markets. The fundamental dilemma is that full legalization will probably reduce average harm per use but increase total consumption; the net effect of these two changes is difficult to project.

The use of law and policy to limit tobacco consumption illustrates one of the greatest triumphs of public health in the late twentieth and early twenty-first centuries, as well as one of its most fundamental failures. Overall decreases in tobacco consumption throughout the developed world represent millions of saved lives and unquantifiable suffering averted. Yet those benefits have not been equally distributed. The poor and the undereducated have enjoyed fewer of the gains. In this review, we build on existing tobacco control scholarship and expand it both conceptually and comparatively. Our focus is the social gradient of smoking both within and across borders and how policy makers have been most effective in limiting smoking prevalence among the more privileged segments of society. To illustrate that point, we reference a range of literature on tobacco taxation, advertising, and public smoking in five economically advanced democracies—France, Germany, Japan, the United Kingdom, and the United States—and four less developed nations—India, China, Brazil, and South Africa—that together comprise 40% of the world's population.

Privatization has become a dominant feature of twenty-first century governance, creating concerns about diminished accountability and oversight. However, to properly evaluate such concerns or respond to them, we must distinguish between two different forms of accountability: accountability as after-the-fact redress and accountability as managerial oversight. Moreover, each of these forms of accountability may be pursued through a variety of mechanisms or processes, including not only criminal or civil lawsuits but also reform of the contracts that are the engine of privatization; increased public participation in the design, award, and monitoring of contracts; and changes to the organizational structure or institutional culture of contractor firms. Accordingly, this review lays out a taxonomy for analyzing privatization so that we can more comprehensively evaluate both the impact of privatization and the efficacy of possible responses. In addition, the review highlights recent privatization trends in the military and foreign aid arenas, the potential impact of such privatization on core values, and possible responses.

This review surveys the origins and development of financial regulation as a concept and as a set of legal (state) and extralegal policies aimed at controlling financial sector activity, specifically stock market exchange. It outlines the basic tools that made financial capitalism possible, the establishment of state regulatory agencies, the cyclical nature of disaster and reform, and struggles over the viability, purposes, and sanctions regulators should pursue. I argue that recent developments, notably globalized trade and the neoliberal policies that states have pursued since the 1980s, have weakened the ability of regulators to take meaningful actions to control the antisocial acts of a financial sector that has grown, literally, too big to fail. Recent evidence indicates that the rate of technological innovations in the financial sector has outpaced the normative capacity of legal and regulatory structures. The review concludes with an examination of the solutions and remedies posed by a range of different scholars across various theoretical positions.

Bankruptcy is the legal process by which the debts of firms, individuals, and occasionally governments in financial distress are resolved. Bankruptcy law always includes three components. First, it provides a collective framework for simultaneously resolving all debts of the bankrupt entity, regardless of when they are due. Second, it provides rules for determining how the assets and earnings used to repay are divided among creditors. Third, bankruptcy law specifies punishments intended to discourage debtors from defaulting on their debts and filing for bankruptcy. This review discusses and evaluates bankruptcy law by examining whether and when the law encourages debtors and creditors to behave in economically efficient ways. It also considers how bankruptcy law might be changed to improve economic efficiency. The review shows that there are multiple economic objectives of bankruptcy law because the law has very diverse effects. Some of these objectives differ for individuals versus corporations in bankruptcy.

Recent scholarship on Durkheim draws attention to debates implicating his ideas about law, mainly in The Division of Labor in Society, but also in Professional Ethics and Civic Morals. Division is the better known work, and established readings—otherwise diverse—find in it a thesis about law as the expression of the collective conscience and functioning to maintain community norms. Durkheim's attention to the state in Civic Morals is often read as a continuation of that thesis on law, as if the state were the culmination of collective consciousness. This article reads these works differently, highlighting the discontinuity of states and collective consciousness as the opening for Durkheim's concerns with the moral legitimacy of public authority as well as his efforts to find a subject (literally and figuratively) for the emergent discipline of sociology. The article suggests that current events offer fresh terrain for sociolegal scholars to pursue the implications of Durkheim's insights on law and states, read otherwise.

This article explores a tension in the Law and American Political Development (APD) literature over the conceptualization of an institution. Moving between two fields in mutual exchange—historical-interpretive scholarship on law/courts and scholarship on APD—the article shows how concerns and sensibilities seem to converge yet are also in conflict. The article argues that a misleading opposition between institutions and discourse is a source of that conflict, while revisiting various theoretical frameworks in an effort to overcome that opposition. Recent work on race, law, and development during the Jim Crow era is taken up with the aim of showing how we might think more capaciously about the formal and discursive properties of institutions.

The concept of the legal complex is a new addition to the lexicon of sociology and sociolegal scholarship. As a concept, the legal complex emerged from a series of interdisciplinary collaborations and primary research on the politics of lawyers and judges across the world. The review introduces this new collective actor to the political stage and elaborates its defining elements, morphology, varieties of mobilization, and repertoires of action. This review argues for a complementary methodological strategy for investigation of the politics of the legal complex, the longue durée and événements. With respect to political liberalism, it shows the contexts and resources in which the legal complex thrives, with particular emphasis on civil society, information technology, the rise of constitutionalism, and international circumstances. The essay argues, however, that the explanatory reach of this concept can extend to any policymaking issues, national or supranational, that involve law, legal institutions, and legal actors. By adopting the logic of analysis developed in this review, not only do previously discrete areas of work on lawyers, judges, or prosecutors come into creative tension, but a lively politics of the legal complex will refine and extend theory across the landscape of law and society research.

American liberals and conservatives agree about very little concerning foreign policy, war, and emergency powers, but they do agree that the Constitution's ambiguous allocation of foreign policy powers to the legislative, executive, and judicial branches is a problem that must be fixed. For conservatives, the answer has been a reliance on constitutional reinterpretation that might establish a bright line between executive power in foreign policy and war (which they embrace) and national authority to regulate domestic and economic affairs (which they do not). For liberals, who worry that constitutional ambiguity opens the door for the abuse of executive power, the solution has been to trade formal delegation of power constrained by strict statutory limits on the exercise of that power. These efforts—liberal and conservative alike—have failed, each producing results quite the opposite of what was sought. After setting these debates in their legal, historical, and political context, this review concludes with a reexamination of the potential virtues of constitutional ambiguity.

This article highlights political science's interest in the distribution of authority between federal and state governments. The authority boundaries are studied (a) as mechanism design problems, where authority is allocated optimally to achieve social goals; (b) as problems in positive political theory, because the authority distribution creates competitive interests; (c) as an institutional design problem, where the boundaries are maintained by safeguards; and (d) as a complex adaptive system, where the boundaries evolve in response to the interaction of diverse agents. The article concludes with a suggestion that as dynamic models of constitutional evolution develop, reflecting the bottom-up process and the responsiveness to the cultural community, federal constitutional design may transform from optimality studies to feasibility studies.

Over the past three decades, sociolegal scholarship on the rights of noncitizens in the United States has sought to explain rights and exclusions while incorporating new theory regarding racialization, biopolitics, neoliberalism, risk, and states of exception. Early work in this period distinguished between legal and illegal immigration, with a focus on assimilation, ethnicity, and new ethnic enclaves in the case of the former, and an examination of the relationship between membership and movement in the case of the latter. Large-scale restructurings of the immigration enforcement regime have made the distinction between citizens and noncitizens more important than before. Thus, scholars have coined such terms as “crimmigration” to describe the unprecedented convergence of criminal and immigration law, “rescaling” to refer to shifts from national to local enforcement efforts, and “securitization” to denote the infusion of antiterrorist measures within immigration policymaking.

Research on organizational innovation is challenging given its complex nature. Using Wolfe's (1994) review and critique of the vast innovation literature, we identify some of the key conceptual and theoretical issues within three separate research streams: diffusion, organizational innovativeness, and innovation process. In doing so, we suggest that police researchers should pay more attention to defining and conceptualizing innovation; to testing multiple theories explaining the spread of different innovations across police agencies; to analyzing the structural and cultural bases of diffusion; to examining and comparing the effects of individual, organizational, and environmental determinants on different innovations; and to designing systematic longitudinal studies on the entire innovation process. In addition, we examine some trends and issues related to judging innovations. Our purpose is to provide guidance that will contribute to the development of a coherent and generalizable body of research on police innovations, a field that is currently in its infancy.

Deterrence theory and criminal justice policy hold that punishment enhances compliance and deters future criminal activity. Empirical research, however, is decidedly mixed, with some studies finding that punishment weakens compliance, some finding that sanctions have no effect on compliance, and some finding that the effect of sanctions depends on moderating factors. In this review, we do not consider whether sanctions affect compliance but instead consider the conditions under which sanctions affect compliance. Specifically, we focus on understanding the kinds-of-people dimension of sanctions and deterrence to include individual differences (in social bonding, morality, discount rate, impulsivity, social network position, decision-making competence) and situational differences (in emotions, alcohol/drug use). Upon reviewing the empirical evidence, we identify important gaps for theoretical and empirical work and comment on how this work relates to public policy.

At the dawn of the twenty-first century, we are witnessing the birth of a new pirate age both in international waters, where fights over oil and fish extraction echo colonial wars over silver and slaves, and in the “high seas” of a global information society. This article reviews these fast-growing phenomena and shows how they relate to one another and to a broader proliferation in types of sovereignty, as well as the rebels they engender. Piracy forces open the cracks of legal sovereignties, revealing an intensifying contradiction in what ought to be called neoliberal mercantilism.

This article explains the rapid proliferation in international courts first in the post–World War II and then the post–Cold War eras. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights, and war crimes systems as part of a longer-term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international courts develop and change, whereas others stay in their same role and with the same low level of activity for long periods of time. The evolutionary approach of this article suggests that building judicial authority evolves through practice and takes time and that the overall international judicial context and developments in parallel institutions shape the development of individual international courts.

This review explores the social construction of a European rule of law. It runs counter to most legal and political science scholarship which considers such transnational constitutional order to be the direct outcome of the European Court of Justice's judicial fiat in a couple of revolutionary decisions from the 1960s. Drawing from the theory of fields as well as from the sociology of legal professions, the review suggests an alternative account of this legal revolution as embedded in a complex legal and political struggle over the nature and future of Europe.