Annual Review of Law and Social Science - Volume 8, 2012

In this article, I trace the history of the sociology of law from its roots at Yale Law School to the present. The legal realists, situated at Yale Law in the 1930s, saw the law as an instrument of policy. Building on this foundation, the Yale Law faculty pioneered the sociology of law in the 1950s, and the Russell Sage Foundation supported the then-emerging field's development in the 1960s. Philip Selznick was a major theorist and institution builder in the field, and my own writing has stressed how the sociology of law has challenged American ideology regarding economic, gender, and social equality. Nowhere is this more evident today than in the current racial distribution of the prison population. The legal realist vision first developed at Yale Law—of constitutional law as an instrument of social policy—was also confirmed by the most recent 2012 US Supreme Court decisions on immigration and health care.

In response to drastic increases and enduring disparities in American imprisonment, researchers have produced an expansive literature on the effects of mass imprisonment on inequality in America. We discuss this literature in three parts. First, we consider the obstacles to estimating the effects of imprisonment on individuals and to using those estimates to calculate the macrolevel impact of incarceration. Second, we review existing literature on the effect of mass imprisonment on inequalities in health and family life. Finally, we close by suggesting directions for future research.

This review outlines a course for US legal historical writing distinct from the ascendant mode of the past 30 years, generally known as critical legal history or critical historicism. Critical legal history (CLH) is premised on the conventional historical strategy of exploring the nature of an object by situating it in an appropriate context and examining the conjunction between object and context. In CLH's case, the object is law and the context is polity, economy, or society, or more usually a realm of action that is a mixture of all three. CLH is also premised on the further, theoretical, contention that whatever the realm of action in relation to which law is situated, the outcome is the same: indeterminacy marked by contingency, alternative possibilities, paths not taken. In this regard, CLH shares in the general turn in the qualitative social sciences and humanities toward complexity. The results of this contextualizing or relational approach have been empirically rich but are inevitably marked by an abandonment of authoritative causal explanation (metatheory) for thick description. This review lays out an alternative to CLH's parsing of relations between law and what is extrinsic to it, by exploring the explanatory potential of allegory, by which what are imagined as distinct become the same. Allegory is strikingly visual in conception—figurative, emblematic. John Wycliffe called it “ghostly understanding.” I explore the potential of allegory along three optical dimensions—scope (appearance), scale (perspective), and structure (constellation)—that together produce what Walter Benjamin called “the dialectical image,” a nonrelational theory of representation with striking historical applications.

Judges and scholars often speak about the very same subject in very different terms. Judges regularly provide written explanations of their rulings, and scholars regularly argue that the true determinants of judicial decision making lie beyond the words of the judicial opinion. This review engages lines of research that take the fact of competing judicial and scholarly accounts of judicial decision making as the subject of study. In particular, this review surveys three different bodies of work that explain the enduring divide between judges and scholars in terms of motivated reasoning, judicial crisis, and the contradictory demands placed on the judicial process. These three literatures provide ways of thinking about the rule of law in the United States without dismissing the perspectives of either judges or scholars.

Early research and teaching on ethics focused either on a moral development perspective or on philosophical approaches and used a normative approach by focusing on the question of how people should act when resolving ethical dilemmas. In this article, we briefly describe the traditional approach to ethics and then present a (biased) review of the behavioral approach to ethics. We define behavioral ethics as the study of systematic and predictable ways in which individuals make ethical decisions and judge the ethical decisions of others when these decisions are at odds with intuition and the benefits of the broader society. By focusing on a descriptive rather than a normative approach to ethics, behavioral ethics is better suited than traditional approaches to addressing the increasing demand from society for a deeper understanding of what causes even good people to cross ethical boundaries.

This article draws on historical, comparative, and structural analyses of various processes described as democratization or democratic transitions. The opening sections address the meaning and general theories of democratization and the emergence of democratic transition studies. Structural aspects, different actors, the process of negotiations and roundtable talks and their impact on the rule of law and on the constitutional aspect of democratic transitions are discussed, and close links between democratization, the rule of law, and constitutionalism are analyzed in the following sections. Finally, problems of transitional justice and dealing with the authoritarian past are considered as an intrinsic part of democratic transitions.

This review evaluates the current state of the historiography of human rights, which originated as a field a mere decade ago. It proposes that the substantive contents of norms, doctrines, and law still attract most historians interested in human rights but are only part of a necessarily broader domain of inquiry. Promisingly, recent entries in the field focus on the extension of the geographical scale of application of human rights, as well as on the differing political and ideological salience that human rights ideas have achieved in diverse moments. The historiographical survey concludes with a discussion of why the history of human rights began to be written and whether it is a pressing task to continue building the field.

Contrary to popular perceptions that immigration increases crime, the research literature demonstrates that immigration generally serves a protective function, reducing crime. This review takes as its starting point the contradiction between the rhetoric and the reality of immigration and crime in the United States. We begin by exploring the conditions under which immigration reduces crime and those under which it has less or no effect, with particular attention to traditional and new destination sites. We then demonstrate how the moral panic about immigration has contributed to unprecedented levels of new legislation and intensified enforcement practices. These new laws and policies, we suggest, are making immigrants and their communities less safe. We consider some of the ways in which immigrants have become more vulnerable and how that vulnerability is patterned and nuanced. We close by examining recent research in other parts of the world, finding some similarities but also differences in the relationships among immigration, crime, and victimization.

The field of law and emotion draws from a range of disciplines in the sciences, social sciences, and humanities to shed light on the emotions that pervade the legal system. It utilizes insights from these disciplines to illuminate and assess the implicit and explicit assumptions about emotion that animate legal reasoning, legal doctrine, the behavior of legal actors, and the structure of legal institutions. In light of law's focus on influencing social norms and on structuring effective and just institutions, one development that holds enormous promise is the growing interdisciplinary interest in collective decision making and in the emotional dynamics of groups. Work in the affective sciences on how emotion and cognition interact is another rich vein for legal scholars interested in the assessment of responsibility and blame, the role of morality in law, and a host of other areas. Another important frontier is exploration of concrete solutions to the problems identified by law and emotion scholars.

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the study of how human individuals perceive, judge, and decide; the observation and interpretation of how knowledge schemes are created, used, and regulated; and the analysis of how states and other actors coordinate through international and global regulatory regimes. The hope is to provide some examples of how environmental law and policy research can be improved by deeper and more diverse engagement with social science.

The effects of bullying on the bully and the victim can be wide reaching, impacting schoolwork, familial and peer relationships, psychological well-being, and physical health. As such, schools work to implement different intervention and prevention programs. Additionally, a variety of both criminal and civil legal interventions have recently been used to prevent or punish bullying. Most US states have enacted antibullying legislation that prohibits bullying behaviors, but definitional issues that are present in the empirical research are also present in such statutes. For instance, some states focus only on physical forms of bullying or leave definitions entirely up to individual communities and schools. Bullying victims also have the option to bring civil suits for tortious acts related to the bullying; this review provides examples of the difficulties with bringing such cases.

This review examines the rising challenge of self-represented litigants in America's courts. It begins with a history of the right to represent oneself and the right to counsel and then considers the dearth of empirical information about those who proceed on their own—in other words, pro se. The article examines the shortcomings of the available data about how pro se litigants are treated as compared with those represented by counsel. It then considers the importance of how the unrepresented feel about their experience—most particularly regarding their opportunity for “voice.” The article then explores judicial attitudes about pro se litigants, arguing that judges may be resistant to reforms to help these parties because such reforms raise fears about judicial neutrality and fair resolution of the merits. The review concludes by briefly considering the cost of not addressing the pro se challenge.

In this article, we examine various legal strategies used to regulate the sale and purchase of sexual services. We use three broad categories to structure our discussion: full criminalization, partial decriminalization, and full decriminalization. In each section, we discuss laws directed toward the control of sellers, buyers, and third parties. We focus on legislation and practices at the highest level of aggregation (i.e., the national, state, or provincial level), and due to limited data, we concentrate on high-income countries. We present a critical assessment of each legal approach and conclude with a call for future research on the consequences of different legal strategies for sellers, buyers, and third parties.

This article examines the relationship between law and historiography. Law played a central role in the creation of the nation-state. Historiography also narrates the victories and sacrifices of the nation and constructs its “imagined community.” Recently, court hearings are increasingly used for history authentication. Developing Hannah Arendt's argument in Eichmann in Jerusalem, the article argues that legal proceedings are not suitable for clarifying the historical record.

Since the mid-2000s, a cottage industry has slowly blossomed of empirical research dedicated to advancing our knowledge of contracts on the books—accounting for what contracts tend to purportedly obligate signers to do—and contracts in action—accounting for how contracting parties tend to behave. This article reviews this literature, focusing on the past seven years, and identifies eight questions organized by two propositions that span across disciplines that have most contributed empirical research on contracts, such as law, economics, and management. The article highlights key findings and points of consensus in this research and notes areas most pressingly in need of additional research.

Mexico has undergone a peculiar transition to a democracy that in some aspects and places still exhibits traits of the authoritarian past. The combination of authoritarian shades and democratic glares, rich diversity in socioeconomic conditions across the country, and the recent availability of a wealth of information and systematized data make for a great deal of research opportunities for sociolegal scholarship. This article reviews recent sociolegal studies on courts and judicial behavior, public security and the criminal justice system, and legal culture, pointing to several empirical puzzles and open questions that are crying out for explanations and systematic empirical analysis.

Arising in the late 1960s and early 1970s—in conjunction with the development of sociology of law and the Law and Society Association—gap studies dominated much of sociolegal scholarship for a time, providing multiple examples of the ways in which law on the books is inconsistent with law in action. These gaps, in turn, spurred calls for legal reform. By the 1980s, however, gap studies came in for criticism, not only for the presumption that law was purposively rational but also for scholars' beliefs that they could identify law's aims. To some, the findings were naïve or undertheorized. Nonetheless, gap studies have illuminated many legal practices and have helped to identify pathways by which law may have an impact. Even as sociolegal scholarship has become increasingly decentered from law, one still sees the tendrils of gap studies in research exploring discrepancies between expectations and actuality in law and legality.

The archival turn has followed a long, protracted, and spiraled trajectory through the fields of history, historical anthropology, philosophy, and literary studies. Animated by the cultural turn and shaped by the challenges of poststructuralism, subaltern, and postcolonial studies, critics have formulated history's archive not solely as a repository of sources through which to retrieve and/or assemble the past but as an uneven effect of power and a set of contested truth claims through which history itself has been a site of struggle. Law and legal studies, by contrast, have had curiously little to say on the subject. That the archive has been the topic of such vibrant debate and disagreement outside of law but not within it is a problematic that informs this review. This article revisits the spirited and now familiar debates in history and these other fields and asks how these critical engagements—which have yet to fully dislodge the archive as truth or radically change how we write history—might productively inform conceptualizations of law's archive. Given law's significance to historical, contemporary, and future struggles over sovereignty, authority, violence, and nonviolence, its archive, I argue, cannot be broached as a compendium of sources or as a regime of power/knowledge alone. Rather, law is the archive. It is an expansive and expanding locus of juridico-political command, one that is operative through what I term a double logic of violence: a mutual and reciprocal violence of law as symbolic and material force and law as document and documentation. Law's archive is a site from which law derives its meanings, authority, and legitimacy, a proliferation of documents that obscures its originary violence and its ongoing force, and a trace that holds the potential to reveal its foundations as (il)legitimate.

This review examines recent scholarship on the rise of international human rights law and proposes that social movements have played critical roles both in elevating the standards of human rights in international law and in leveraging these standards into better local practices. Institutionalization of universal human rights principles began in the immediate post–World War II period, in which civil society actors worked with powerful states to establish human rights as a key guiding principle of the international community and to ensure the actors' continuing participation in international human rights institutions. The subsequent decades saw various hurdles arise in international politics, but civil society actors skillfully used the small openings that they had gained to continue to advance the cause of human rights. They held powerful governments accountable to their lofty promises about human rights and worked with sympathetic governments in the UN system to continuously upgrade the standards of international human rights. They also leveraged human rights laws toward better local practices, taking advantage of new political opportunities created by human rights laws, using expanding international channels to increase flows of human and material resources, embracing globally legitimated vocabularies of human rights to frame their movements, and integrating the broad cultural effects of human rights laws to construct new social movement identity and actorhood. The review then points out some potential pitfalls of international human rights laws: professionalization of movement actors, which can undermine the impact of social movements and lead to less ambitious and transformative goals; privileging of some causes over others, which can lead to demobilization around certain issues; and overextending movement goals, which can give rise to strong backlash against human rights principles.

Economic theory has struggled to produce a coherent narrative justifying the implementation of intellectual property regimes, although a variety of rationales have been advanced as explanations. The most prevalent justification characterizes the subject matter of intellectual property in terms of public goods, which are nonrivalrously and nonexclusively consumed and thus likely to be underproduced due to free-riding problems. On this view, intellectual property regimes are intended to provide an incentive for investment in valuable intangible goods. But because the social costs of intellectual property may be significant, this explanation is not an entirely persuasive justification. Consequently, other rationales, such as incentives to disclosure, or coordination of resources, have been advanced. Given the vast variety of innovative and creative activities subject to intellectual property protection, it may be that no one explanation is adequate but rather that different rationales, or different combinations of rationales, apply in different industries.