Annual Review of Law and Social Science - Volume 9, 2013

This article begins by tracing the aspirations and training that led to Lempert's commitment to the field of law and social science and includes comments on prominent figures in the field, the emergence of empirical legal studies, and other matters. It may interest scholars who seek to understand the history of the field's revival, and those who were among the first generation of Law and Society Association members may see some of their own experience in Lempert's account. The article then discusses policy uses of law and social science research and cautions against the possibility that a study's policy appeal may exceed the weight that can fairly be put on it. Five studies are used as examples: Wilson and Kelling's essay on “broken windows,” Sherman and Berk's work on arrest for spouse abuse, Ehrlich's article on the deterrent effects of the death penalty, Lott and Mustard's work on right-to-carry laws, and Sander's mismatch critique of affirmative action. The article concludes by emphasizing the importance to policy of understanding mechanism and the need for sophistication in the soft methods of study design, along with a good understanding of formal statistics.

This review considers what can be learned from bridging sociolegal scholarship with contemporary research on health policy. Public health scholars have relied on a narrow understanding of the role law can play in health care reform, viewing law as a set of commands from above that direct the behavior of individuals. Incorporating a cultural perspective of law would allow public health scholars to observe law's effects in a much wider range of contexts. Meanwhile, the cultural turn in sociolegal studies toward an emphasis on law's role in the construction of everyday life has resulted in a shift away from the study of state policy altogether. As a consequence, the microlevel analyses that have come to dominate sociolegal scholarship are rarely connected to the macrolevel politics that shape them. Issues relating to health care offer sociolegal researchers an opportunity to reestablish a connection with social policy and extend their understanding of the power and meaning of law.

The study of Jeremy Bentham (1748–1832), the English legal philosopher and reformer, is being transformed by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham. Following revisionist studies in the 1980s and 1990s that reasserted Bentham's credentials as a key figure in the emergence of the liberal tradition, more recent work has explored an increasingly varied range of topics from the perspective of an increasing variety of disciplines, including literary studies, sociology, and history of political thought, as well as law and philosophy. The view of Bentham as a crude authoritarian behaviorist is no longer tenable, and Bentham's place as a major philosopher with relevance for the twenty-first century is being increasingly recognized.

In the past decade, legal scholars have developed an extensive corpus of doctrinal and normative work on national policy responses to terrorism. At the same time, political and social psychologists have tested a diverse range of theories concerning how perceptions of terrorism risk affect individual and aggregate behaviors such as electoral choices and preferences over public policies. The legal scholarship, with a handful of exceptions, does not draw on this empirical literature about the “demand” for counterterrorism. In consequence, its descriptive and normative claims tend to lack warrant in any defensible account of the political psychology of counterterrorism. To begin remedying that gap, this review explores insights from the empirical literature on the psychology of individual and collective responses to terrorism in order to better comprehend the political motivations that underwrite counterterrorism policy choices. Three lines of inquiry are highlighted: how individuals perceive and process terrorism risk information, how political and policy preferences change after terrorism attacks, and how counterterrorism tactics can alter patterns of individual behavior.

Legal intervention to influence individual health behavior has increased dramatically since the 1960s. This article describes the rise of law as a tool of public health and the scientific research that has assessed and often guided it, with a focus on five major domains: traffic safety, gun violence, tobacco use, reproductive health, and obesity. These topical stories illustrate both law's effectiveness and its limitations as a public health tool. They also establish its popularity by the most apt of metrics—the willingness of legislators to enact it. The five examples demonstrate that public health law research can and does influence the development and refinement of legal interventions over time. Measuring the impact of laws can be difficult, but the field has the tools of theory and methods necessary to produce robust results. It is past time for public health research to receive institutional, professional, and funding support commensurate with its social importance.

Formal transparency policies are increasingly prevalent in global governance institutions, partially attenuating the influence in these institutions of practices of secrecy inherited from interstate diplomacy. This article assesses the incidence and specific characteristics of formal transparency policies across a select group of institutions and outlines some of the justifications given for these policies—including justifications based on the publicness of these institutions—and for the more controversial exceptions to transparency, such as the exception for deliberative materials. It examines three drivers affecting the adoption, form, and content of transparency policies and other transparency measures in these institutions: spillover from national transparency laws and policies, growth in the reach and significance of authority exercised in and through global institutions, and criticism of global institutions by influential states and nongovernmental organizations. Twelve hypotheses are proposed about the effects, for states, nonstate actors, and global governance institutions, of transparency measures—formal policies and other steps to increase transparency—in global governance institutions. Finally, the article considers some implications of transparency measures for structures of political power and authority beyond the state and for global administrative law.

Law influences and is shaped by the emergence of race-based biotechnologies in the genomic age. This review examines how law and social science scholars have approached the role of legal regulation, theories, and norms in governing the definition and utility of race in gene-based technological innovation. I structure my discussion around four main themes: the institutional regulation of biotechnology research, commercial incentives for race-specific products, the paradoxes of inclusion and difference, and racial equality jurisprudence. My attention then turns to future directions for research in this field needed to attend to the serious political implications of increasing race consciousness in genomic research and technology at a time when color blindness and postracialism are gaining popularity. I argue for a biopolitical and transdisciplinary paradigm that is committed to our common humanity and to the need for social change.

Between 1984 and his death in 1998, German sociologist Niklas Luhmann developed a comprehensive theory of what he called autopoietic or self-referential systems. He worked out this approach both at the level of a social system as a whole and at the level of various social subsystems, such as state, economy, science, religion, education, art, family, and—the concern of the present article—law. My particular topics in this critical introduction to Luhmann's theory are (a) its relation to more standard legal theory, (b) foundational or self-referential problems in law, and (c) the problem of law's relation to other social spheres, especially politics and the economy.

The legal literature on campaign finance law and the political science literature on how and why interest groups mobilize use different methodologies to get at overlapping issues. This review integrates some of these insights to better understand the relationship between interest group participation in elections and changes in campaign finance law. The post–Citizens United world of law created regulatory vacuums that only certain groups tried to take advantage of. For example, little corporate money found its way into Super PACs or groups engaging in independent electoral advocacy. We argue that ascertaining interest groups' objectives of either using contributions to candidates to obtain access, on one hand, or using independent expenditures to install friendly candidates in office, on the other, is key to understanding how interest groups respond to legal developments. We also argue that although interest group participation in elections increased in 2012, the party-centric federal election system was largely resilient to increased interest group mobilizations, highlighting the difficulties with the replacement strategy.

Over the past two decades, the concept of militant democracy—the use of legal restrictions on political expression and participation to curb extremist actors in democratic regimes—has again captured the attention of comparative constitutional lawyers and political scientists. In comparative constitutional law, the old neutral model of liberal democracy, according to which all political views are entitled to the same rights of expression and association, has given way to a general consensus that restrictions on basic rights designed to preserve democracy are legitimate. At the same time, legal scholars attribute the considerable cross-national variation in the formal design and use of such restrictions to the particular historical background of each country. In political science, a large body of work now examines specific militant restrictions on extremist actors. Although this scholarship consists mainly of descriptive analyses, it has begun to advance causal hypotheses explaining variation in important militant democracy policies. Taken together, these developments point to the fact that militant restrictions constitute an important facet of modern democracy and that at the same time, notwithstanding recent advances, our understanding of the phenomenon is still marked by significant gaps, making the legal and empirical analysis of militant democracy an important emerging research program both in comparative constitutional law and political science. This article reconstructs the debate on the concept since its origins in the 1930s and suggests directions for further research in both fields.

The need to regulate environmental problems is of ever-increasing urgency. Yet the complexity of environmental dynamics challenges any regulatory scheme. We use this essay to describe and assess some of these challenges. We deploy the terms scope and scale as analytic tools in this effort. We define and elaborate on these terms and then use them to analyze three especially critical dilemmas in environmental regulation: the fit between environmental dynamics and legal categories, the relationship between legal and nonlegal dynamics in structuring human impacts on the environment, and the relationship between environmental law and environmental justice.

This article seeks to explain the emergence of a new field of study oriented toward sex laws and sexuality rights in comparative and global perspectives. We argue that this field comes into focus because of three changes in the social context: the introductions of sexuality into sex, of human rights into national laws, and of global into comparative perspectives. Each turn of the social kaleidoscope generates new objects of and rationales for scholarly analysis, along with new ways and reasons to think about existing objects of analysis. Together, these contextual changes inaugurate the global study of sexuality rights and invigorate the comparative study of sex laws. Theoretical shifts accompany the empirical developments. Phenomenological approaches arise alongside their realist counterparts. The consolidation of this new field of study is important not only on academic grounds: It suggests the dynamics of a wider field of policy and practice.

The justice cascade refers to a new global trend of holding political leaders criminally accountable for past human rights violations through domestic and international prosecutions. In just three decades, state leaders have gone from being immune to accountability for their human rights violations to becoming the subjects of highly publicized trials in many countries of the world. New research suggests that such trials continue to expand and often result in convictions, including some of high-level state officials. This article summarizes research on the origins of the justice cascade and its effects on human rights practices around the world. It presents evidence that such prosecutions are affecting the behavior of political leaders worldwide and have the potential to help diminish human rights violations in the future.

As an interdisciplinary field, law and society has an ambivalent relationship with the notion of a canon: Being a field requires having a recognized set of key texts, even as this particular field's critique of doctrinal legal analysis creates an openness toward alternative perspectives. Within the interdisciplinary field of law and society itself, there is debate about the breadth of disciplines relevant to this domain of inquiry. To explore this tension, we analyze three sources: (a) addresses delivered by presidents of the US Law and Society Association (LSA), (b) LSA meeting calls, and (c) law and society/social science syllabi. Presidential addresses and meeting calls demonstrate how the boundaries of the field are established and contested, and course syllabi suggest a degree of consensus about key works. We conclude by discussing other national and regional research traditions and note that these critique law and society/social sciences canons for being overly United States focused or Eurocentric. We argue that such contestation underscores the health and vibrancy of law and society research.

How and when do legal decision makers' preferred outcomes inadvertently drive their judgments? This psychological phenomenon, known as motivated cognition or motivated reasoning, has become an important topic of investigation among scholars conducting experimental research at the intersection of law and psychology. This article presents an overview of that literature, discusses some of its legal applications and implications, highlights areas that require further investigation, and considers some potential ways to curtail the covert operation of motivated cognition in the legal arena.

The authors examine the development of reproductive rights, a law-focused movement, and reproductive justice, a social justice–aimed movement that emphasizes intersecting social identities (e.g., gender, race, and class) and community-developed solutions to structural inequalities. In examining the intertwining histories of the reproductive health, reproductive rights, and reproductive justice movements, we consider the relationship between law and social movements, including the limits of law to inform radical social movements. We highlight how the relationship between scholarship and activism on the right to not have children has expanded to include notions of the right to have children (e.g., for low-income people or with the aid of technology) and the right to parent with dignity (e.g., for incarcerated people or in nonmedicalized settings). We end the article with a discussion of best practices and future directions for research.

The explosion since the 1970s in the number of prisoners in the United States serving life sentences is a dramatic change in US penal policy. The United States remains deeply attached to widespread use of life sentences despite mounting evidence that lengthy sentences have minimal impact on reducing the crime rate and enhancing public safety. The political and legal obstacles to seriously reconsidering the extensive use of life sentences in the United States are formidable. Moreover, some of the recent successes of penal reformers, including opponents of capital punishment and foes of the war on drugs, may have come at the cost of reinforcing the country's strong attachment to meting out life sentences and sentences of life without the possibility of parole (LWOP).

Contemporary mass atrocities and genocides hold two general lessons: First, even in the course of these violent decades, genocides are rare events, and mass atrocities are not. Second, contemporary mass violence evolves in macro- and microcontexts that shape particular trajectories of conflict and violence. As the international community assumes responsibility for protecting victims and prosecuting perpetrators in contemporary high-risk environments, it is important to contextualize extreme violence and genocide and to understand the microrelational structure and dynamics of mass atrocity events. This article discusses two conceptual turns—atrocity crimes and extremely violent societies—and identifies three trajectories that move beyond an exceptionalist perspective on mass atrocities. Dynamic concentration of deterrence is suggested as a microrelational strategy for both protection and prosecution in contemporary humanitarian crises.

This article maps Middle Eastern law in some of the thousand plateaus where it operates/operated: Mesopotamian law, Roman provincial law, Islamic law, and post-colonial law, with layers within each, such as Elephantine law in Egypt and Jewish and Christian law in Islam's classical age, as well as new worlds of law, such as Byzantine and Ethiopian law, in which scholarship about interaction with other layers of Middle Eastern law is either inexistent or just starting. The focus is directed as much as possible to the extant documentation in the legal record that most affects people's lives: court decisions. For the modern period, we survey, from the point of view of the legal practitioner, lawyer, or judge, the various bodies of case law and codes in the everyday practice of the Middle East lawyer. A legal family analogous to the common or civil law traditions, Middle Eastern law has emerged as a coherent and active discipline that is increasingly a subject of inquiry for historians, social scientists, and others outside of the legal profession. This article presents the field for more sustained attention from lawyers, judges, and law professors.