LS06CH01-Abel ARI 4 October 2010 14:58

Law and Society:Project and PracticeRichard L. AbelSchool of Law, University of California, Los Angeles, California 90095;email: abel@law.ucla.edu

Annu. Rev. Law Soc. Sci. 2010. 6:1–23

First published online as a Review in Advance onMay 17, 2010

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev-lawsocsci-102209-152851

Copyright c© 2010 by Annual Reviews.All rights reserved

1550-3585/10/1201-0001$20.00

Key Words

Law & Society Review, history

Abstract

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

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INTRODUCTION

Alice: Would you tell me, please, which way I oughtto go from here?The Cat: That depends a good deal on where youwant to get to.Alice: I don’t much care where.The Cat: Then it doesn’t much matter which wayyou go.Alice: . . . so long as I get somewhere.The Cat: Oh, you’re sure to do that, if only youwalk long enough.

—Lewis Carroll (1866)

As a relatively new interdisciplinary field, lawand society (L&S) has been asking Alice’squestion for more than four decades, and thefield has been answering it in two ways: byprescribing and doing. Many kinds of evidencecould illuminate this activity: The answersabout where L&S should go are illustratedby the broad range of “law-and” journals andbooks, conference papers, grant proposals,university programs, and dissertations. In thisreview, I have limited myself to comparingproject and practice during the first and last13 years of the Law & Society Review (LSR)(roughly, 1966–1979 and 1996–2009) catego-rizing the more than 600 published articlesby the questions posed (necessarily sacrificingdepth for breadth and citing selectively).

THE ORIGINAL PROJECT

Noting the coincidence between the New Dealand legal realism in the 1930s, Shamir (1995)has argued that law is more receptive to socialscience during periods of rapid change. LSR’sfirst decade was another such moment. EarlWarren’s reign as chief justice (1953–1969) de-fined the rights revolution, beginning with the1954 Brown v. Board of Education decision out-lawing school segregation and including land-marks on abortion, voting, criminal procedure,and welfare. President Kennedy launched theNew Frontier in 1961, only to be assassinatedtwo years later. President Johnson promotedthe Great Society but did not seek a second

term in 1968 because of the unpopularity of theVietnam War, which fueled a mass peace move-ment. Still, his presidency included the 1964and 1965 Civil Rights Acts as well as the Waron Poverty. Frustration at the slow pace of re-dressing American racism, as well as the assassi-nations of Robert Kennedy and Martin LutherKing Jr., fomented urban violence. The econ-omy boomed. The birth control pill acceleratedchange in sexual mores. Drug use proliferated.The counterculture flowered.

Basic laws were reformed, including theModel Penal Code, the Uniform CommercialCode, the Federal Rules of Civil Procedure,products liability, and the warranty of habit-ability. “No fault” increased the frequency ofdivorce. Attica prison erupted in 1971. Andbooks rediscovered poverty (Harrington 1962),environmental degradation (Carson 1962),feminism (Friedan 1963), and consumerism(Nader 1965).

An American Sociological Association(ASA) meeting in Montreal in 1964 institu-tionalized the L&S program, which enjoyedgenerous funding from foundations (Ford,Rockefeller, Russell Sage, Walter E. Meyer)and government (Law Enforcement Assis-tance Administration). Although most of theoriginal members were sociologists, L&Salso met in conjunction with the AmericanPolitical Science Association (APSA) and theAmerican Anthropological Association, draw-ing eclectically on social science theories andmethodologies.

That law was its subject posed unique chal-lenges. Paralleling European antecedents, theBerkeley group argued that “the sociology oflaw could not reach its full potential unlessit confronted the major problems of jurispru-dence” (Selznick 1959), such as “what it meansto ‘legalize’ an institution, that is, to infuse itsmode of governance with the aspirations andconstraints of a legal order” (Selznick et al.1969). But even Berkeley studied applied top-ics: parole, sentencing, criminal law reform,juvenile courts, and prison governance (LawSoc. Rev. 1967). In any case, Berkeley’s con-ceptualization was eclipsed by the view that

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social science should help law promote a lib-eral political agenda. For sociologist GreshamSykes, the main purpose of social scientists atthe Denver College of Law was “to providelaw students a basic understanding of modernsociological inquiry so that they will be betterequipped for their professional work as lawyers”(Gauthier 1995). At Yale Law School, RichardSchwartz and Jerome Skolnick helped JosephGoldstein develop social science materials forcriminal and family law casebooks (Garth &Sterling 1998). Convinced that “law profes-sors . . . need history, they need economics,” theRockefeller Foundation funded Willard Hurst,who in turn encouraged Stuart Macaulay andLawrence Friedman to collaborate on Law andthe Behavioral Sciences (Friedman & Macaulay1969). Macaulay later said that the book “hasan awful lot of the trappings of structural func-tionalism,” but “I don’t think either of us be-lieved it that much” (Garth & Sterling 1998,pp. 437–38).

Lawyer consumers of social science sharedthis patronizing attitude. David Cavers, aHarvard law professor who was most influ-ential in distributing $4 million from theWalter E. Meyers Foundation, believed that“the methodology of science would set tasks forlaw that would be too hard, too dull and ex-pensive, and the marginal increment too mea-ger.” Kenneth Culp Davis, a leading admin-istrative law professor, found nothing usefulin the sociological literature. Walter Gellhorn,a Columbia administrative law professor, saiddismissively that “if he wanted a sociologist, hewould hire one.” Rita James Simon, a sociolo-gist on the Law and Society Association (LSA)board, recalled that as late as the 1970s, so-cial scientists “were still considered handmaid-ens and sort of technicians that had to supplyjust very technical answers to legal scholars whowould then (1) frame the problem and (2) ana-lyze what the data really meant.”

Similar views about how social sciencecould shape legal policy guided LSR. The frontcover of early issues declared that its purposewas “to explore the relationships between lawand society in such a way as to contribute to the

understanding of law as a social and politicalphenomenon and to expedite the utilizationof law as a more effective instrument of publicpolicy.” Richard Schwartz, its first editor,declared in his second issue that lawyers’interest in social science methods “represent[s]a response to the felt need for systematicinformation in the shaping of rational legalpolicies” (Schwartz 1967a, p. 6). Social scienceexposed laws’ “unanticipated consequences”:“drug addiction increasing because of efforts atenforcement, public defender systems enhanc-ing conviction rates, Draconian divorce codesgenerating perjury” (Schwartz 1967a, p. 6). Inthe next issue, he reflected that “the violencethat erupted in inner cities around the countrywrote in blood and fire the message that lawhad been weighed in the balance and beenfound wanting” (Schwartz 1967b, p. 7). Still, ithad “played a not unimportant part in further-ing the civil rights movement” by providing a“normative slogan” and a “forum.” That year,APSA featured panels on “law as an instrumentof social change” and “free speech, freedom ofthe press and privacy” (Yegge 1967a).

The first LSA membership meeting inspring 1968 discussed “Legal Problems of thePoor” and “New Frontiers in Research onCriminal Justice” (Yegge 1968). LSR dedicatedits fourth issue to Arnold Rose, who had col-laborated with Gunnar Myrdal on An AmericanDilemma (Myrdal 1944), had helped write thesocial science brief cited in Brown, and hadshown how law could redress discrimination.The 1964 Civil Rights Act’s mandate toevaluate progress toward integration led to theColeman Report on Equality of EducationalOpportunity (Coleman et al. 1966) and an LSRsymposium on efforts to integrate northernschools. Schwartz (1968a, p. 5) noted that “theCommunity Action Programs, Head Start,and other activities of the War on Povertyare likewise subject to systematic continuingevaluation,” which “seems a vital elementin the construction of rational legal policy.”Citing a background paper on divorce forthe National Conference of Commissionerson Uniform State Laws, he welcomed the

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author as “one of a new cadre of law professorswho are determined to draw to the extentpossible on the accumulated wisdom of socialscience for whatever it can tell us about theformulation of wise legal policy in his chosenarea” (Schwartz 1968a, p. 4). Schwartz (1968a,p. 3) also was upbeat about the Americanlegal profession, which “seems to be showinga keen awareness of the need for intelligentintervention to secure law and order througha more equitable administration of justice”;and he found “good theoretical reasons forbelieving that the legal profession may be cru-cial in determining the rate and type of devel-opment” in Third World countries (Schwartz1968/69, p. 195). “The kind of inventivenessshown by earlier generations of lawyers . . . canbe turned with comparable capability todealing with problems of the environment, theconsumer, civil rights, prisoners, the aged, thementally ill, students, and comparable interestsand groups in the population which have beenneglected” (Schwartz 1972). Schwartz (1973,p. 3) concluded his presidency by declaring:

The study of law in American society is cer-tain to be affected by the momentous eventsthat have followed the discovery of the Wa-tergate incident. This association, devoted tothe understanding of legal systems and to theapplication of such knowledge to legal pol-icy, must surely respond in an appropriateway, . . . [which might] include some active ef-fort to affect policy.

Krislov (1973, p. 324), the next LSR editor and apolitical scientist, regretted that “the closest lawschool students of sociolegal work . . . find so-cial scientists working on [are] problems which,from the perspective of legal scholarship and ju-risprudence, are trivial.”

LSA’s first two presidents were even moredetermined that social science should help lawbe more effective. Yegge (1969a, p. 484), a lawprofessor, declared that “for social science tobe meaningful to lawyers, it must have somepractical application. And it does.” In return,law provides social science with “the action

model—the quest for using knowledge toresolve problems, to reconstruct institutions”(Yegge 1969b, p. 6). He wanted LSR to be “afirst-rate review that looks like a law reviewthat has great flexibility” and described theSocial Science Methods in Legal Education(SSMILE) institute for law professors as “asummer six-week quick and dirty get yourphony M.A. in Law and Society at the handsof some of the masters” and celebrated “areawakening of the interest in law as a lib-eralizing element in the society” (Garth &Sterling 1998, p. 426). Like Schwartz, Yegge(1970b, p. 476) believed that the limitedlegal reforms already achieved demonstratedthe need for structural change “requiringunsettling flexibility; honest recognition ofsome social illnesses with attendant creativeconcern for diagnosis and cure; involvement bya wider slice of the community . . . . [L]et’s talkabout law and justice normatively.” Rosenblum(1970a, pp. 3–4), a law professor trained inpolitical science, began his presidential termby quoting an undergraduate who defined “therelationship between law and social change”as “the overriding problem.” In subsequentcolumns, Rosenblum criticized AttorneyGeneral John Mitchell for rules concerningjournalistic privilege (Rosenblum 1970b), theNational Labor Relations Board for decidingthat a law faculty should be a separate unit forcollective bargaining (Rosenblum 1971d), andthe Department of Justice for attempting tosubpoena social scientists during the PentagonPapers investigation (Rosenblum 1972b). Hecommended the American Bar Association for“recognizing the importance of change and theneed to associate meaningful change with law”(Rosenblum 1971a); he urged social scientists todetermine whether a judge could be sufficientlyunbiased in deciding a contempt citation issuedby a colleague (Rosenblum 1971b) and whetherthe reasonable man was “merely . . . a cloak fordeep-rooted prejudices” (Rosenblum 1971c,p. 4); and he celebrated academic contributionsto the California Supreme Court’s Serrano v.Priest (1971) decision equalizing educationalexpenditures per pupil, declaring “rarely has

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the relevance of social science research to legaldoctrine been so dramatically and successfullyillustrated” (Rosenblum 1972a). Both presi-dents were confident law could advance idealsshared by all LSA members.

EARLY PRACTICE

It is no more surprising that there is a gap be-tween L&S manifestoes and practice than thatthere is one between law on the books and lawin action (Abel 1973b). What did LSR actuallypublish in its formative years?

Although Berkeley’s Skolnick and Nonetcontinued to argue for research on legality, pol-icy relevance clearly triumphed. For a new field,L&S was surprisingly unselfconscious abouttheory and methodology, which representedmuch less than a tenth of the approximately300 articles. (Because of ambiguities in count-ing and categorizing articles, my “quantita-tive” estimates are impressionistic.) Althoughthere were debates about Durkheim and Marx,most of the theoreticians discussed—ThurmanArnold, Donald Black, Roberto Unger, AdamPodgorecki, Isaac Balbus, Renato Treves—remained marginal to the empirical work ap-pearing in LSR. Methodology was limited toquasi-experiments (Campbell & Ross 1968)and problems of multicollinearity in regressionanalysis.

By devoting the first 80 pages of its inau-gural issue (which coincided with the foundingof the Office of Economic Opportunity LegalServices Program) to an article proposing anagenda for sociological research on “civil jus-tice and the poor” (Carlin et al. 1966), LSR af-firmed its promise to advance political liberal-ism. Other articles addressed the legal needs ofthe poor, how these were shaped by the serviceslawyers offered, why and to whom lawyers ren-dered pro bono services, and which legal aidlawyers engaged in law reform; a special issueof LSR (Volume 11, Number 2) was devotedto the delivery of legal services. National sur-veys of legal needs in the United States (Curran1977) and the Netherlands (Schuyt et al. 1976)appeared contemporaneously. Because Brown

exemplified law’s determination to effect fun-damental social change, a special issue in thesecond volume (Volume 2, Number 1) dealtwith northern school desegregation, based onresearch mandated by the 1964 Civil RightsAct; otherwise, however, race appeared only inanalyses of bias in criminal justice. Althoughanother ten articles addressed law and socialchange, they were either theoretical or situatedin locales where modernity was displacing tradi-tion: Soviet Central Asia, Japan, the DominicanRepublic, Turkey, Mexico, and Africa.

Most articles fell into three large categories.The first concerned impact or efficacy, whatmight be called “Mind the gap!” between lawon the books and law in action (with apologiesto London Transport). In order to demonstratetheir unique and indispensable expertise, socialscientists argued that legal doctrine (overwhich lawyers claimed exclusive mastery) couldnot adequately explain the behavior of eitherlegal institutions or those the law purportedto regulate. Articles examined the impactof laws concerning traffic, guns, dangerousproducts, charitable immunity, housing, andthe environment, as well as the effect of U.S.Supreme Court decisions on juvenile courts,reapportionment, civil liberties, and the rightto counsel. They analyzed the influence of lawson families: population control, divorce, cus-tody, welfare, and intergenerational support.They documented deviation from formal rulesin criminal courts, civil commitment of thementally ill, the Polish command economy, andGerman bankruptcy. I criticized such “gap”studies (Abel 1973b) for allowing law to defineproblems for social science. It was naive to ex-pect homology between legal prescriptions andbehavior, unproductive to keep falsifying thatassumption, and ethically unacceptable to adoptuncritically the norms of positive law. Rather,social scientists should identify the behaviorslaw does influence (including its unforeseen andoften perverse consequences) as well as the rea-sons for its failures and shortcomings, explorenoninstrumental explanations for laws, andinsist on moral autonomy in defining researchquestions.

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The second large category concerned thebehavior of adjudicative institutions. Themedia and popular culture condition us toconflate law with courts, which offer dramaticnarratives of heroic victory and tragic defeat.Whereas the legislature and executive arewidely understood and accepted as inescapablypolitical, the judiciary represents an uneasysynthesis of law and politics, universal rules andunequal resources, which stimulates endlessjurisprudential debates about theories ofadjudication and prodigious legal scholarship(and partisan propaganda) criticizing particularconstitutional doctrines. (By contrast, onlya half dozen articles discussed legislation, apolitical science staple. All documented interestgroup dominance: professionals seeking rentsthrough licensure, the Church shaping Italianfamily law to protect its orphanages, statesupreme courts as pressure groups.)

Sociology and political science appliedorganizational theories and quantitativemethodologies to courts, treating them likeany other social institution. More than 20 arti-cles asked how judges were selected, organized,and governed; how they defined their roles andcommunicated with each other; and how theydid (and should) make particular decisions. Be-cause the U.S. Supreme Court has the greatestvisibility and potential impact and seems theleast “legal,” it attracted the most attention, in-cluding studies of the knowledge and opinionsof lawyers and the lay public. But social sci-entists also investigated state supreme courts,specialized courts, and high courts in Spain andIndonesia. At the other end of the judicial hier-archy, juries posed similar problems: an uneasyconjunction of complex legal rules and virtuallyunconstrained discretion. This undoubtedlywas one reason why the University of Chicagostudied jury decision making (Kalven & Zeisel1966). LSR articles examined bias in juryselection, how juries dealt with evidence, andhow they nullified substantive law.

This interest in adjudication spawned tworelated inquiries. Studies of litigation remainedrooted in courts but investigated parties ratherthan judges. Social science was essential to ex-

plain the actions of litigants, which profoundlyshaped the behavior of courts but were largelyunconstrained by law. The landmark wasGalanter’s (1974) influential article on “Whythe ‘Haves’ Come Out Ahead,” the centerpieceof two special issues (Volume 9, Numbers1–2). Litigation also shifted the focus fromfederal appellate courts (which made some ofthe most influential rule changes) to state trialcourts (which heard most cases). And to revealpatterns, it engaged in comparison, primarilyacross time but also in space. The initial interestin courts provoked studies of other institutionsperforming similar functions, notably disputeprocessing (Abel 1973a), thereby contributingto the recognition of legal pluralism (Santos1977). This perspective was inescapable inpreindustrial societies with no state to definethe boundaries of formal law. A growing (ifsometimes romanticized) interest in such infor-mal institutions led to a search to find or createthem in industrialized societies—small claimscourts, law in the kibbutz, Chilean neighbor-hood courts, Brazilian favellas (Abel 1982).Articles also examined the vast majority ofgrievances that never go to court: complaints byconsumers and victims of discrimination, heardby administrative agencies or the media; tortclaims settled by insurance companies; neigh-borhood grievances resolved by self-help orthe police; and arbitration. Studies of litigationand disputing confirmed Galanter’s theory:Repeat-player companies and governmentlitigated against one-shot individuals, whereasthe latter typically sought redress outside court.

The third (and largest) category concernedthe criminal justice system (CJS). Given thatcriminology was the first social science (by morethan a century; see Beccaria 1764) and that con-trolling crime was one of the state’s earliestresponsibilities, it is surprising how marginalcriminology has been to L&S. A few early ar-ticles addressed deviance: exotic behavior suchas witchcraft, 1960s civil unrest, drunk drivingand drug offenses, and white collar crimes suchas tax evasion and fraudulent auto sales. But thisdisinterest is not unique to crime; L&S gener-ally has let other disciplines study the behavior

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that law seeks to regulate: divorce by family so-ciology, business by economists, accidents byhuman factors experts. A more expansive con-cept of law in action would view behavior andthe legal institutions that regulate it as part ofa single system. And just as studies of adjudica-tion treat substantive law as an exogenous vari-able, so CJS studies during this period ignoredthe genesis of criminal law (except for the longdebate over decriminalizing drugs).

CJS articles fall into two groups: efficacy andfairness. The first—the criminal law equivalentof impact studies—examined policing, thedeterrent effect of sanctions on populations ofoffenders and offenses, alternatives to bail andprison, incapacitation, and private criminaljustice. If the purpose of criminal law often wasless ambiguous than that of civil laws, criminal-ization also might have perverse consequences(as labeling theory argued). Studies of the fair-ness of the CJS paralleled those of adjudicationby asking how extralegal factors influenceddecision making. This topic alone accountedfor 25 articles and two special issues (onjuvenile justice, Volume 7, Number 2; and pleabargaining, Volume 13, Number 2), perhapsbecause criminal law is so clearly coercive andits targets disproportionately poor people ofcolor (hence the many studies investigating thedimensions and causes of class, race, and genderbias). The CJS lends itself to organizationalexplanations because it is a complex network ofmany loosely connected elements—includingvictims, police, prosecutors, bail bondsmen,defense lawyers, parole boards, probationofficers, and prison authorities—all enjoyingbroad discretion. Indeed, one of the mostenduring findings has been the hydraulictheory of discretion: Suppress it one place andit reemerges elsewhere. Articles combined thefocus on adjudication with the perspectives oflitigation (looking at those who mobilize theCJS—victims, police, and prosecutors) and dis-puting (examining negotiated outcomes—pleabargains—as well as nonstate disciplinarianssuch as universities). Long before L&S stud-ied dispute transformation, criminologistswrote about the “dark figure” of unreported

crime. There was particular interest in thepolice (heralded by Skolnick 1966) and theirreform because the mistreatment of civil rightsactivists by southern police and of black inner-city residents by northern white police forcesprovoked civil unrest and damaged the CJS’slegitimacy.

Just as L&S looked at the personnel ofparticular institutions—judges, juries, police,and prisons—so it examined the legal profes-sionals who staff all of them. Medical sociologyanticipated this by studying the socialization ofmedical students. And social scientists had in-vestigated lawyers before the founding of LSA(Carlin 1962, 1966; O’Gorman 1963; Smigel1964). Lawyers’ backgrounds and training,the structures within which they practice, therewards they seek (status as well as money),their careers, and relations with clients (noneof which is dictated by law) all profoundly in-fluence the legal system. Yet the approximately20 articles dealt with lawyers outside the pro-fessional core: in political roles (the executivebranch, drafting constitutions), defending civilliberties, legal aid lawyers and public defenders,law students, and in India (Volume 3, Numbers2–3). This reflected the reformist ideals ofthe 1960s/1970s but neglected the primaryrole of lawyers: reproducing and amplifyinginequalities of wealth and power.

Three other categories remained marginalto LSR’s core concerns (which reflected itsstrong positivist orientation). Like earlier stud-ies of the “gap” between law and popular moral-ity (Cohen et al. 1958) and “knowledge andopinion about law” (Podgorecki 1973), articlescharted attitudes toward the Supreme Courtand the police; class and race differences inviews about other legal phenomena; and viewsabout punishment, the fairness of courts, andcivil liberties. Many authors seemed concernedthat the law’s legitimacy and efficacy dependedon its conformity with popular consciousness.Most LSR articles were written by sociolo-gists and political scientists. Except for an arti-cle apiece, anthropology was represented onlyby two special issues (on ethnography, Vol-ume 4, Number 1; and a festschrift for Hoebel,

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Volume 7, Number 4) and history by a dou-ble festschrift for Hurst (Volume 10, Numbers1–2).

THE MIDDLE YEARS

No sooner had L&S settled into comfortablemiddle age then it confronted a series of chal-lenges. Three years after the founding of Crit-ical Legal Studies, and shortly before Reagan’selection, I deplored the “clickety-clack” of rou-tine questions eliciting conventional answersand observed that “the theoretical-descriptivemodel of liberal legalism and the social policiesit advocates are under increasing attack fromboth left and right” (Abel 1980a, p. 805; Abel1980b, p. 438). I suggested that the collapseof the liberal paradigm might explain why theliterature surveys in this special issue (Volume14, Number 3) were “macrosocial, historical,and comparative,” unlike most LSR articles. Irepeated my criticism of “gap” studies (Abel1973b), suggesting instead that we ask abouta law: “What are its inadvertent consequencesor symbolic meanings? What are its costs? Forwhom does it work? What are the fundamentalstructural reasons why it does not work? Whatis the relationship between the routine (not theexceptional) in social and in legal life?” (Abel1980a, p. 828). Presidential addresses markedthe changing political environment. Jacob(1983, p. 407) criticized 12 years of trial courtresearch for ignoring distributional questions,being insufficiently longitudinal, and slightingcivil cases compared with criminal cases and lit-igants compared with judges; but he still askedhopefully if we are “within sight of certainenough knowledge to guide policy makers?”

Galanter (1985, pp. 551–52) noted thatthe public had shifted from demanding morelaw (the rights revolution) to fearing therewas too much (the litigation crisis). Arguingthat law “usually works not by exercise offorce but by information transfer,” he urged“research about what law means in people’slives; what gives it its hold, its influence, itsattraction.” Invoking Geertz’s claim that lawis “meaning . . . not machinery,” Macaulay

(1987, pp. 185–86) concurred that we must“understand people’s knowledge of and atti-tudes toward the legal system” as instantiatedin everyday sites such as textbooks, popularculture, and sports. LSR accepted this invita-tion by publishing a special issue on ideology(Volume 22, Number 4), edited by the Amherstgroup, which determined to “move from focus-ing on concrete, tangible, and material intereststo ideas and concepts in . . . discourse,” the“devices by which people find their way in andmake sense of the taken-for-granted aspects ofthe legal world” (Special Issue Editors 1988,p. 631). Levine (1990) echoed the call by Silbey& Sarat (1987) to expand research on lawbeyond the state, to “spaces and places” suchas family, workplace, and community.

Eight years of Reagan and four of GeorgeH.W. Bush coincided with a major shift inthe L&S project. With conservatives in theWhite House (and increasingly the federal ju-diciary), there was less interest than earlier inincreasing the efficacy of law, and there was in-creasing skepticism about the “myth of rights”(Scheingold 1974). Recalling that “early on andinto the 1970s” researchers hoped that “stud-ies of law and society could inform policy de-bate and bring about better governmental deci-sions . . . to assist the disadvantaged,” Diamond(1989, p. 170) observed growing disillusion: ar-guments for “critical empiricism” (Trubek &Esser 1989), concern that “meliorist policy ad-justments fed by research will undermine the ef-forts to produce major structural change” (Sarat& Silbey 1988), and warnings against the “ill ef-fects of inflated claims” for empirical research(Lempert 1989). Progressive change had to besought outside the state, in civil society. Con-sciousness became both an obstacle (if it wasfalse) and a potential force (if properly un-derstood and mobilized). Where Marx had lo-cated power in relations of production, andFoucault had shown how disciplinary mech-anisms were dispersed throughout society,Bourdieu attributed stasis to social practices:habitus.

Handler (1992a, pp. 697, 701, 724) criticizedthese new directions, questioning “the value

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of postmodernism for transformative politics,”the belief that “change will be brought aboutthrough small-scale transformation” by decon-structing and destabilizing hegemonic struc-tures. “The contemporary stories are aboutindividuals, in the most marginalized spaces, en-gaging in very small acts of defiance, and for themost part, very little if anything happens.” Theywere “stories of resistance, but . . . also stories ofdespair.” He offered a concrete example: “theblack teenage response”—crime by men, out-of-wedlock motherhood by women—“is not somuch a rejection of conventional morality as anexample of adaptation to the stress of extremepoverty” (p. 716). Handler argued that with-out “a positive theory of institutions, postmod-ernism cannot come to grips with institution-ally based power” (p. 724). It lacked a “visionof alternative relations of production or politi-cal authority.” “[R]eflexivity” had become “dis-abling” (p. 726). The cultural turn from powerto consciousness had made postmodern politics“the politics of discourse,” a tragic error because

everyone else is operating as if there wereGrand Narratives. In the West, we see the ide-ological and political sweep of liberal capital-ism. Much of the world adheres to religiousfundamentalism. Major economic powers arecommunal, authoritarian societies. We see therise of ethnic nationalism (p. 726).

Quoting Scott’s (1985) invocation of anEthiopian fable about the wise peasant who“bows deeply and silently farts” when the greatlord passes, Handler (1992a, p. 727) concluded:“Progressive forces need trumpets, not farts. . . .The enemies of the poor and those who sufferdiscrimination do not rely on localized knowl-edge in mini-rationalities.” Although two com-mentators (McCann 1992, Ewick 1992) arguedthat individualized resistance simply reflectedthe increasingly fragmented power of stateand capital, Handler (1992b) questioned theevidence for that claim. Austin (1992, p. 753)concurred with him that “first and foremost,there is no economic game plan for poor blackcommunities.” Agreeing that “every successful

political movement for social change” has “or-ganiz[ed] around common interests,” Calavita& Seron (1992, p. 767) recalled C. WrightMills’s (1959) identification of the “tensionbetween the micro and the macro” as a centralchallenge of the “sociological imagination.”

PRESENT PROJECTS

The debate framed above continues unabated.Merry (1995, p. 12) agreed that “our faith inthe progressive possibilities of law has beenshaken.” But criticizing Handler for looking“too narrowly for ways that law contributesto social justice and transformative politics,”she urged greater “attention to discourse, nar-rativity, and language along with legal cul-ture, legal ideology, and legal consciousness.”“[R]ecent scholarly attention to resistance re-flects pessimism about the possibilities of majorsocial revolutions,” leading to a focus on “moresubtle, unrecognized practices, such as foot-dragging, sabotage, subversive songs.” But dothey “lead to genuine social transformation ordo they . . . simply heal workers and return themto the workplace . . . ?” (Merry 1995, pp. 14–15).Offering three examples of resistance, Merryconceded that the uncooperative accused stillwent to prison, the abused wife left her hus-band but remained economically dependent onmen, and the Hawaiian sovereignty movementredefined the law within its People’s Interna-tional Tribunal but got no closer to exercis-ing power. While maintaining that “actionswith no apparent impact may nevertheless beconsequential,” she wondered if “recent workon resistance [had] taken an overly celebratorystance?” (p. 24). Engel (1999, p. 5) exhortedL&S “to understand and communicate the per-spectives of those who are habitually ignored bylegal scholars and policymakers.” Hoping read-ers would discern his autobiographical subtext,Sarat (2000, p. 9) declared that the next frontierfor L&S was cultural studies: “Today we havelaw on the books, law in action, and now, law inthe image.”

Others sought to recapture L&S’s re-formist zeal. Reviewing LSA’s history, Garth

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& Sterling (1998, p. 466) concluded that“with sufficient energy and new investment inscholarly bridges,” it “may be able to renew itsprogressive role at the intersection of law andsocial science.” Although Greenhouse (1998,p. 11) felt distant from the “early contributorsto the journal”—“optimistic Aristotelians intheir sense of law’s ability to deliver justice andcommunity to divided nations”—she harshlycriticized contemporary legal policy. Notingthe “spectacular shift from rehabilitation tocrime control” (Feeley & Simon 1992), shedeclared that “human science itself is no longerconceivable without affording violence a cen-tral place in our thinking.” Munger (2001, p. 8)also conceded that “we have left behind hopesthat exposing the shortcomings of liberal legalinstitutions will lead directly to change.” But hestill believed that “in North America, the endto the intellectual turbulence created by thecold war may have made it easier to perceiveinjustice” (without being labeled communist);and “where the rule of law is not firmlyestablished, liberal legalism can be the cuttingedge of cause lawyering.” But Munger alsoagreed that the “critique of law that decentersor deconstructs the authority of law” forcesL&S to relocate “the role of law in the veryfabric of social relations, consciousness, andidentity.”

Munger’s commentators were more cau-tious. Nelson (2001, p. 34) warned against “anunrealistic view of law as a vehicle for achievingsocial justice and an unrealistic assessment ofprospects for law and social science researchto influence the direction of policy.” Indeed,such scholarship could easily be misused, aswhen Judge Posner cited Galanter’s (1974)“Haves” article for the proposition that courtscould not redress structural inequalities. Andthough Lempert (2001, p. 26) cited examplesof “socially engaged studies aimed at increasingjustice”—documenting racial bias in the deathpenalty or exposing the actual role of juries todebunk the mythic litigation crisis—he con-ceded that “well-done scholarship that conflictswith public opinion or political interests oftendoes little . . . to bring about social change,”

noting a federal judge’s dismissal of his ownresearch that defended affirmative action at theUniversity of Michigan.

Calavita (2002, p. 7) reaffirmed “the im-portance of asking the big questions . . . andthe urgent need for a commitment to engagedresearch.” “[O]ver the past several decades,we have been backing way from macrostruc-tural analyses and from theory in general.”Academics feared “being perceived as both tooideologically engaged” and “embarrassinglyobvious.” Like Handler, she blamed thispartly on postmodernism: “with the verypossibility of transcendent Truths in question,claims to a position of privilege in accessingsuch Truths seem quaintly anachronistic,disingenuous, some say even sinister.” Whileurging colleagues to “focus on the counter-hegemonic resistance to law and the socialorder it helps to constitute,” she acknowl-edged “widespread demoralization about thepossibility of meaningful political change.”

Commentators shared Calavita’s ambiva-lence. Reflecting on “thirty years mainly doingempirical work on topics of policy or public rel-evance” in Britain, Dingwall (2002, p. 33) con-cluded sourly that “none of it really matters verymuch.” Blaming pursuit of a summum bonumfor the Cold War and now “both Osama binLaden’s Islamic Utopia and George W. Bush’sPax Americana,” Dingwall urged us to “lower[ ]our aspirations to the point at which we can findsome measure of agreement” and then “alloweach other to do pretty much as we please.”Simon (2002, pp. 38–41) recalled howSkolnick’s (1969) attribution of 1960s civilunrest to structural conditions was eclipsedby Wilson’s (1975) insistence on holding “thedeviant individual responsible for social prob-lems.” Reflecting on her experience in Poland,Sk ↪

apska (2002, p. 45) noted the “unfortunatelynot rare examples” of “even the greatest intel-lectuals engaging in political opportunism asfellow travelers or as bystanders, justifying theirstance as ‘the necessary costs of progress,’ oreven worse, engaging in support of totalitarianregimes.” “We must debate whether there isarrogance in the temptation to make history

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work according to intellectuals’ vision ofprogress, notwithstanding the suffering ofpeople.”

Although she advocated a more global per-spective, Mather (2003, p. 264) cautioned thatthe “assumption of universality” can “get usinto trouble” when “legal ideas, actors, and in-stitutions are exported without a self-consciousawareness of the distinctive context that makesthem work in the United States but perhaps notabroad.” Garth (2003, p. 306) concurred: Thelatest wave of law and development embracedthe uniquely American faith in “a strong andindependent judiciary acting as a major branchof the government.” Offering a critical Britishperspective on American exceptionalism,Dingwall (2003, p. 317) warned that “humanrights jurisprudence may be too powerful aweapon to put into the hands of the judiciary”and might “contribute to the continuing declineof democratic politics.” Public interest lawyer-ing “does not cease to be professional imperial-ism just because idealistic people do it.” Writingfrom Canada, Brockman (2003, p. 296) notedthat “the competing movement of law and eco-nomics has taken the political driver’s seat asthe state has moved away from a social welfareto a more economic and corporatist model.”

Contesting the growing influence of law andeconomics (L&E), Edelman (2004, pp. 184–88) sought to reclaim the economy for L&S,which regarded “rationality as a phenomenonthat varies across actors and social arenas” andsaw “social action as responsive to institu-tions, norms, and historical context.” WhereasL&E treated law as exogenous, L&S insistedon “the endogeneity of law . . . the idea that themeaning of law is constructed within the social(and economic) realms that it seeks to regulate.”Her own research explained why employerscreated grievance mechanisms that benefittedthem more than employees. But although someeconomists conceded many of her points, theycontinued to maintain the superiority of theirtheoretical models and methods.

Erlanger (2005, pp. 2–3) reaffirmed theL&S founders’ belief “that empirical researchcould provide an understanding of how the

legal system actually works, and of how lawcould become an effective agent of progressivesocial change.” The “purpose of sociolegalscholarship is to assess the relevance of law ineveryday life” and to “uncover the sources andeffects of legal change.” Rejecting Tamanaha’s(2006) charge that L&S was exclusively con-cerned with legal instrumentalism rather thanjustice, Feeley (2007) insisted that L&S had“rejected the notion that social scientists shouldbecome . . . the law’s ‘handmaidens.’” Indeed,“many members of the Association hold a morejaded view of law and the legal process thanthey or their counterparts did in 1966.” Feeleyblamed “shifting politics, postmodernism,critical theories . . . and the cultural turn” forskepticism about “knowing the social condi-tions that give rise to law, legality, and the legalsystem, and knowing enough to construct (oreven advocate) effective programs to remedythe pathologies of the existing social order”(Feeley 2007, p. 758). Yet he ended by echoingMichael Burawoy’s call for “public sociology,”declaring that “sociolegal scholars consistentlyanchor their work in a concern with broad prin-ciples of justice implicit in the concept of law.”

PRESENT PRACTICE

Analyzing what could readily be quantified inthe first 34 volumes of LSR, Silbey (2000) foundno obvious change over time in the subjectsstudied except for less frequent calls for “a dis-tinctive paradigm for law and society researchor a ‘coherent theory,’” fewer literature reviews,little comparative analysis (6.5%), more cul-tural studies, and a continuing dominance bysociologists (36%), political scientists (23%),and lawyers (19%), compared with anthropolo-gists (4.5%), economists (2%), historians (1%),and philosophers (0.5%). My own reading ofthe approximately 300 articles published in thelast 13 years identified little pure theory (al-though theoretical orientations clearly informthe novel topics and approaches discussed be-low). Only two articles even mention the re-lationship between empirical research and pol-icy (which had exercised earlier commentators).

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Despite Edelman’s (2004) call for social scienceto address issues appropriated by economists,only three articles did so (two by authors alreadyengaged in such work). Aside from endorse-ments of thick description in the ethnographyof constitution-making and of embedding lon-gitudinal studies in a larger historical perspec-tive, only Feeley (2007) discussed methodology(using his presidential address to criticize dys-functional institutional review boards).

Nevertheless, the last 13 years differedsignificantly from the first. Where earlierarticles focused on the role of the state in pro-moting social justice or guiding the transitionfrom tradition to modernity, recent authorslook for transformation within civil society.Occupying the space formerly devoted to lawand social change, nearly a dozen articles oncause lawyering—many associated with Sarat& Scheingold (1998, 2001)—discuss why, andwith what result, activists chose to litigateon behalf of various disadvantaged groupsand unpopular issues (Niger Delta residents,LGBT rights, civil liberties, South Africanblacks, Jews and Roma, American Indians,Southern blacks, conservative causes), rebut-ting revisionist claims that courts cannot effectchange (e.g., Keck 2009). Focusing on partiesrather than lawyers, legal mobilization studiesdocumented the ingenious ways individuals—especially outsiders such as women and ethnicminorities—used the law: creating fictivekinship to obtain kidney transplants, plantingor uprooting trees to stake land claims inIsrael-Palestine, invoking the Family andMedical Leave Act, complaining about domes-tic violence or sexual harassment, obtainingdivorces, petitioning supranational fora suchas the World Trade Organization or EuropeanCourt of Human Rights. Whereas the earlygap studies naively documented (and oftendeplored) the disparity between legal normsand the behaviors they prescribed, contempo-rary mobilization studies describe (and oftenapplaud) the opportunities that ambiguouslaws and novel institutions offer disadvantagedindividuals. At the same time, articles showedhow repeat-player “Haves” (capital and state)

can amplify their extralegal advantages by ex-ploiting legal processes (or refusing to enforcerights). Aside from a special issue (Volume33, Number 4) revisiting Galanter’s influential1974 article, however, few writers explored howostensibly neutral legal institutions reproduceand reinforce inequalities, perhaps because itis easier to reconcile the ideal of “Equal Justiceunder Law” with unequal outcomes when theyare secured by private actors (whose behavioris unconstrained by law) rather than officials(legislators, judges, regulators).

Studies of laws’ impact and regulatoryefficacy parallel investigations of the deterrenteffect of the CJS; taking the normative contentof law for granted, both ask how it can modifybehavior. Researchers continued to documentthe relationship between formal rules andprescribed behavior in fields as diverse asforeign investment, minority language educa-tion in Canada, university hate crime codes,uninsurable property, and the Americans withDisabilities Act. A special issue (Volume 36,Number 2) on nonbiological parenting exam-ined the complex interactions between parents,children, and the state in various social contexts.Describing law in action with respect to lobsterpoaching in Canada, East German archives, tortvictims seeking “blood money,” and decisionmaking in neonatal intensive care units, articlesshowed how law distorted behavior and howpeople circumvented law. After three decades,the United States may be souring on the Reaganantiregulatory revolution (in the face of globalwarming, financial misconduct, and unsafe foodand drugs), but most of the recent literatureconcerns how to make regulation more effective(typically by departing from command and con-trol) rather than how to extend its scope. Thesestudies investigate the influence of social normsunder varying market conditions, federal-statedifferences, the identities of those regulated,comparisons between command-and-controland responsive regulation, and prerequisitesfor compliance (deploying transnational andhistorical comparisons). Authors and criticsused methodological disagreements to wagepolitical battles over whether environmental

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regulation disadvantages minorities and com-pliance (paradoxically) varies inversely withregulation. The interest in norms and culturevalidates Edelman’s (2004) contention thatsociology can enrich economic accounts ofbusiness behavior.

Whereas regulation became a political foot-ball, judicial decision making remained firmlyensconced within normal science. Researchersexposed the many factors other than positivelaw shaping judicial behavior: how a judgment’sstructure affected its impact on subsequent de-cisions, influence of judicial opinions acrossfederal circuits, the effect of advocacy (includ-ing amicus briefs), the significance of person-nel (changes in the membership of benches,assignments to panels, politics within the ap-pointing authority, contested retention elec-tions), reciprocal interactions between lowerand higher courts, judicial deployment of prece-dent and other rhetorical resources, judicialcharacterizations of AIDS, and the language ofexclusionary rule decisions. Some articles werehardly distinguishable from doctrinal explica-tion and critique, such as those that discussedthe federal law of nuisance, affirmative action,racial discrimination, originalism and judicialactivism, application of the best-interests-of-the-child doctrine, or the failure of state courtsto use state constitutions to protect civil liber-ties. Some judges viewed such behavioral anal-yses as lese majeste, resenting the debunking oftheir autonomy, just as some legal scholars (e.g.,Bickel 1962) had defended their turf against so-cial scientists by arguing that unmasking lawas politics might delegitimate judicial authority(without offering any evidence that the publichad ever been fooled or that demystifying lawwould lower respect for or obedience to courts).

The continued popularity of this topic maybe due to its overlap with law’s own definitionof its scholarly project: the clarification andcritique of judicial decisions. Although earlystudies of judicial decision making had focusedon the U.S. Supreme Court’s constitutionaljurisprudence, several articles now examinedefforts to create or defend the rule of lawin new or imperfect democracies, where the

divergence between legal ideal and politicalreality was especially stark: countries emergingfrom communism (Russia, Estonia), dealingwith terrorism (Israel), seeking to end militaryconflict (Iraq), or addressing threats of religiousor national strife (Turkey) or military or policechallenges to civilian authority (cf. Hallidayet al. 2007).

If interest in judicial decision making re-mained high, earlier efforts to broaden theinquiry to extrajudicial disputing diminished[consistent with Silbey’s (2000) finding that an-thropologists contributed only 4.5% of the ar-ticles in the first 34 years]. Most studies of le-gal pluralism were situated outside the UnitedStates—in countries whose official legal systemswere less well entrenched (Kenya, Thailand,Mozambique, Indonesia, India)—or in Amer-ican enclaves where state power was less hege-monic (Indian reservations, nineteenth-centuryHawaii, disputes between college roommates ormembers of workers’ cooperatives, pretrial bar-gaining). This may reflect continued expansionof state power, especially at the expense of tra-ditional institutions (whose romantic allure hasfaded), or growing attention to the relationshipbetween state and supranational institutions.

As before, the legislature was studied lessthan the judiciary or executive and more likelyto be approached comparatively (common andcivil law regulation of labor and corporations;the headscarf controversy in France, England,and Turkey; American and French definitionsof sexual harassment; the response to HIV-positive contaminated blood in Japan, France,and the United States) or historically (theemergence of the state action doctrine duringReconstruction, how Civil War narrativesshaped the Fourteenth Amendment, the long-term devolution of power from governmentofficials to citizens, disaster relief as a New Dealantecedent, displacement of the Islamic waqfby public service). The relative fixity of leg-islative norms (in time and place) may explainthe greater use of temporal and cross-culturalcomparison. That only two articles addressedrapid normative change—responses to thealternative birth movement and the plight

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of U.S. war resisters in Canada—suggestsgreater skepticism about the state’s role insocial change. In both instances, furthermore,reformers sought to discourage state action(crackdowns on alternative birth practices,prosecution or deportation of U.S. warresisters).

The L&S preoccupation with crime andpunishment, criticized by earlier commenta-tors, has been markedly less pronounced forthe past 13 years. Relinquishing the field tocriminology (whose own journals were thriv-ing), LSR has published few articles on de-viance or deterrence. Conceding the difficulty,even impossibility, of eradicating crime, thesearticles document the persistence of lobsterpoaching in Canada, illegal labor migration toChinese cities, and the movement of mafias inresponse to crackdowns. Articles have punc-tured myths: that “adult” businesses are crim-inogenic or that fear of gang crime reflectsits prevalence. They argue that restorative jus-tice (Braithwaite 2002), especially reintegrativeshaming, deters recidivism. Just as judicial deci-sion making studies revealed behaviors inexpli-cable by positive law, so criminal justice anal-yses expose how discretion is exercised (andarguably abused): processes in juvenile courts(which cases were diverted, the interpretationof drug tests, sentencing) and domestic violencetribunals; the role of confessions in China; pleabargaining; the effect of victim-defendant re-lationships; the impact of medical testimonyon the insanity defense; the defense of malehonor in high-profile murder trials; the roleof race in sentencing; the relationship betweenspeed of disposition and outcome; and the be-havior of parole officers. There was only onestudy of juries, which has become the domain ofpsychologists.

Perhaps because police departments hadracially integrated and politicians had per-suaded voters of the urgency of “law and order,”there was considerably less interest in policeconduct (community policing, homicide clear-ance rates) or misconduct (except in particu-larly sensitive situations, such as those involvingMuslim Americans, perceptions of racial bias,

or racially motivated hate crimes) and more in-terest in factors leading communities to assistthe police. Like studies of judicial support forthe rule of law, those of police concentrated onless stable countries: Russia, Mexico, and Tai-wan. Similarly, there was only token interestin penology: the shift in Britain from trans-portation to prison, the history of lynching, whyCanada remains less punitive than the UnitedStates, women in prison, and the death penalty(the effect of testimony by helping professions,clemency petitions, racial differences among ju-rors, how belief in the prospect of release af-fects juror decisions, the transformation of ex-ecutions from public spectacle to private).

Agreeing with exhortations for greaterattention to race and gender, one LSR editor(O’Barr & Layish 1997) noted that those topicswere mentioned no more than once an issuein the first 30 volumes, less often than in mostleading law reviews according to Obasogie(2007). Another LSR editor (Silbey 2000) foundthat women editors tended to publish morearticles by women authors. Attention to theseissues has not greatly changed (except for thespecial issue on gender, Volume 25, Number 2).Interest in racial and ethnic inequality focusedon situations in which law was most visiblycoercive, the CJS: racial differences in juror be-havior, bias in sentencing, racial segregation ofprisoners, and prison’s disproportionate effecton the health of African American men. Butrecent scholarship displayed several marked(and arguably related) differences: racial cate-gories included the full spectrum of ethnicities,broadened by immigration; race was seen associally constructed, often by legal institutions,and intersecting with gender; and the effect ofrace was documented outside the CJS, notablyin the treatment of immigrants (decisions toadmit, application of miscegenation laws, laborregulation). Researchers studied situationsin which dominant (or previously dominant)groups were minorities: Anglos in New Mexico,Russians in Estonia. Although a few articlesdealt with women as objects (the failure ofMuslim legal systems to punish honor killings,New Zealand men uniting across racial lines

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to oppress women), others examined women’sagency (as lawyers, for instance). Researchersasked why the legal system reproduced racialinequality and oppression but allowed womento challenge gender stereotypes.

Studies of the legal profession posed familiarquestions: how lawyers were distributed acrossroles, sources of career satisfaction, ethnore-ligious barriers, competition for partnership,the organization and functions of outside andhouse counsel. But researchers also addressednovel developments: the relationship betweenlocal and global lawyers in China, the effectof U.S. News and World Report rankings onlaw school admissions, jurisdictional strugglesbetween English solicitors and barristers. Al-though access to justice never again achievedits original prominence, researchers studied thecost and quality of lawyers and nonlawyers, thelevel of government support for legal services,the impact of legal representation in evictionproceedings, explanations for pro bono lawyer-ing, and how Chinese lawyers screen out la-bor grievances. Just as cause lawyering haddisplaced state action as the engine of socialchange, so there was increasing attention to al-ternatives to state-funded lawyers for the poor.

This analysis reveals considerable continu-ity between the first and last 13 years of LSRin terms of questions and answers. But severalnew lines of inquiry offer promising alter-natives to the “clickety-clack.” The “culturalturn”—advocated, criticized, or performedin presidential addresses by Macaulay, Sarat,Handler, and Merry and in the special issueon ideology—has been well represented,signifying an important new phase in L&Sscholarship. Some of these articles resemblethe earlier “knowledge and opinion aboutlaw” studies, investigating cultural variationin attitudes toward particular crimes (pros-titution, pornography, sexual harassment) ororganizational wrongdoing, preferences forrestorative or retributive justice, willingness toaccept ignorance-of-law defenses, perceptionsof jury selection fairness, Cuban entrepreneurs’views about capitalism and markets. Othersexamined how attitudes were produced

(media coverage of products liability verdicts,outrage at an Italian judge’s disrespect for arape victim, the influence of the South AfricanTruth and Reconciliation Commission on legalconsciousness), the persistence of myths (for in-stance, that border controls limit immigration),the impact of judicial election campaigns onattitudes toward courts, or the “gap” betweenlaw and public beliefs about it. Some lookedat how legal consciousness about the right tohealth care affected claims, or how being aU.S. domestic violence victim or Chinese legalaid plaintiff affected perceptions of those legalsystems. One researcher analyzed the storiesyouths told about conflicts they experiencedfirst- or secondhand; another asked howSarajevo residents felt toward the InternationalCriminal Tribunal for Yugoslavia. Only a fewarticles sought to relate attitudes to actions(cf. Tyler 2006): how belief in proceduraljustice and opinions about the police affectedcalls to the police, or how attitudes influencedwillingness to resort to self-help.

The cultural turn may represent pure ratherthan applied sociology, advancing understand-ing, not policy formation. Examples includeSarat’s (2000) masterful interpretation of TheSweet Hereafter and analyses of responsibilityin courtroom television, the defense of homo-sexual advance in popular culture and criminaltrials, and concepts of honor and dignity in thefilm Unforgiven. Other researchers explored theculture that participants bring to and constructin encounters with law, such as the use of En-glish and Cantonese in Hong Kong courts orhow sex differences and social ties shape par-ties’ language in dispute settlement. Mertz’s(2007) analysis of language in the law schoolclassroom exposed how professors influence theconsciousness of future lawyers.

A second innovation—whose significance iscertain to grow—is interest in globalization: le-gal behavior transcending national boundaries.Kritzer (2007) noted that 32 of the 82 articleshe published as LSR editor concerned legalphenomena outside the United States. Articlesdocument how litigation for women’s rights inthe European Court of Justice has diminished

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national sovereignty, how Hawaiians invokedinternational law, international pressuresagainst female genital mutilation, and interna-tional police cooperation. Merry’s (2006) workon the local practice of international humanrights has been particularly influential.

INTERPRETATIONAND CRITIQUE

What explains the articles LSR published inthese two periods? Politics seems influential.The 1960s and early 1970s were a unique mo-ment. Enjoying unparalleled prosperity, theUnited States dominated the global economy,even though it was geopolitically challenged bythe Soviet Union. Most Americans fondly re-membered New Deal efforts to end the Depres-sion and create a regulatory and welfare state.They acknowledged the pressing challenges ofpoverty, racism, patriarchy, consumer protec-tion, and environmentalism. State responses in-cluded landmark U.S. Supreme Court decisionsas well as the legislative programs of Kennedy’sNew Frontier and Johnson’s Great Soci-ety. Revolting against the Cold War (Korea,McCarthyism, Vietnam) and stifling culturalconformity, youth believed in infinite possi-bility. Social scientists were supremely confi-dent in their engineering powers; the Gluecks(Glueck & Glueck 1930), for instance, believedthey could identify incipient delinquency andnip it in the bud. L&S sought to guide liberalreforms: ending race and sex discrimination, re-habilitating criminals, alleviating poverty, un-derstanding Supreme Court decision making,rendering laws more effective.

The reaction was prompt and harsh. TheVietnam War impoverished the War onPoverty. Confidence in unlimited horizons wassupplanted by pervasive worries about limits:dwindling natural resources, global warming,new epidemics, growing debt, skepticism aboutscience, and foreign competition. Republicansdestroyed the New Deal coalition by divertingwhite ethnic worker anxieties into resentmentof the civil rights movement’s limited achieve-ments. Four decades of Republican control of

the White House (interrupted only by weak-ened Carter and Clinton administrations) al-lowed the Federalist Society to pack the federalcourts. Nixon hamstrung the Legal ServicesCorporation; his successors starved it. Reaganpreached the gospel that government was theenemy; regulation became the problem ratherthan the solution. A lavish corporate advertis-ing campaign convinced Americans that courtswere suffering a litigation crisis (Haltom &McCann 2004). Once liberal legalism hadcleansed itself of de jure injustices (violationsof equal protection and due process), judicialvictories became more elusive and precarious.Wechsler (1959) had already attacked Brown forviolating “neutral principles”; affirmative actionwas even harder to justify. Originalists assailedRoe v. Wade and championed gun ownershipand corporate free speech. Whereas new con-stitutions such as South Africa’s contain third-generation rights to substantive justice, En-lightenment constitutions such as that of theUnited States do not (Hazard 1969).

Aspirations to social justice were replaced bythe belief that greed was good, even godly. In-equality was blamed on bad individual choicesrather than oppressive structures. Postfeministsrepudiated their mothers’ attack on patriarchy;the privileged solved the tension between workand family by staying home to care for theirchildren or hiring women of color to do so.The emergence of a tiny black middle class (andthe election of a black president) demonstratedthat the civil rights movement was obsolete;the black underclass was beyond saving. Immi-grants, especially the undocumented, deservedno legal rights; that vulnerability (as well astheir varied origins) made organizing difficult.(Transforming racism into immigration con-trol had been the project of grand apartheid.)Clinton ended “welfare as we know it” ratherthan poverty. Retribution replaced rehabilita-tion in criminal justice. By making marriage acenterpiece of their struggle, gays and lesbiansinvoked the liberal paradigm, while opponentsrailed against “special rights.” Markets werehailed as the consumer’s best friend; efficientmarket theory insisted that investors needed no

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other. Successful antitax campaigns, weakenedlabor unions, and an overheated financial sectorcombined to increase income inequality. Theend of the Cold War, paradoxically, reducedpressure on the United States to promote so-cial justice (Dudziak 2000). The declaration ofa war on terror excused the massive curtailmentof civil liberties.

In this reactionary political environment,L&S was rapidly overshadowed by L&E, whichhad many advantages. Whereas the 1960s weretroubled about inequalities of wealth (andpower), the 1980s were single-mindedly fo-cused on the creation of wealth, which wassupposed to trickle down ( Judt 2009). If so-cial scientists previously had influenced stateaction (e.g., in Brown or the War on Poverty),economists were the new technocrats. WhereasL&S wanted to make regulation more effective,L&E wanted to minimize its “distortions” ofthe market (Coase 1960). Whereas L&S law-in-action studies deployed Geertzian “thickdescription” to limn the world’s irreduciblecomplexity, L&E simplified by making numer-ous counterfactual assumptions (zero transac-tion costs, perfectly competitive markets). L&Sproduced ideographic accounts of singularities;L&E aspired to be nomothetic and cumula-tive. At a time when social scientists were los-ing confidence in their ability to predict theconsequences of state action, economics readilylent itself to (often simplistic) normative con-clusions (while claiming to be positive). As L&Sabjured policy relevance, L&E eagerly assumedthe mantle (now aided by behavioral economics,which claims to synthesize the two disciplines).Recent issues of the Journal of Empirical LegalStudies and Experimental and Empirical Studiesaddress a wide range of policy concerns, e.g.,whether discovery promotes settlement; howuniversal health insurance and cost contain-ment affect mortality rates; the effect of patentson vegetable crop diversity.

Armed with neoclassical theory and ascientific-sounding vocabulary, law professorsconfidently engaged in economic analysis. Likeother recent converts to a faith, many be-came more libertarian than Chicago’s free

market priests. L&S required empirical re-search, which was laborious and demandedmethodological skills most lawyers lacked;L&E simply deduced conclusions from axioms.L&E acolytes (many of them lawyers) aspiredto practice economics, adopting its disciplinarytenets while letting law define the researchagenda. L&S practitioners (mostly social sci-entists) often were alienated from their orig-inal disciplines and united only by an inter-est in law (a heterogeneous composite of rules,processes, institutions, and people). By neces-sity, L&S was a big tent, methodologically andtheoretically: quantitative and qualitative, posi-tivist and hermeneutic. Some of its choices con-tributed to L&S’s marginality: avoiding the of-ten esoteric behavior of economic institutions;studying down (the objects of legal domination)rather than up (those wielding law’s power).And the jurisdictional contest was unequal:L&E was lavishly funded, often by conserva-tive foundations (Olin), which paid for summerinstitutes offering crash courses in economicsto law professors and judges (compare Manne’s“Pareto under the Pines/Palms” with Yegge’sSSMILE).

The transformed political environment alsomay help explain the “cultural turn” taken byL&S (following several of its parent social sci-ences). Sarat (2009, p. 9) welcomed the fact that“today we have law on the books, law in action, andnow, law in the image.” Might our concern withimages reflect a depoliticized culture? Havinglost faith in the state’s willingness or capacityto effect social change, we look to individualagency and see consciousness as the obstacle.Americans who once defined themselves bypolitical ideologies now do so by consumerpreferences: how they look, what they wear,the foods they eat, the music they listen to, thesoaps they watch, the sports they play, the teamsthey cheer. (Slackers are just the mirror image,limiting their resistance to not doing or buying.Sartre’s committed intellectual has beendisplaced by the resolutely apolitical hipster.)Americans are fascinated by the peccadilloesof the moment’s celebrities, the fodder of thetabloids and late-night talk shows (as I write

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this, the White House gate crashers and TigerWoods), today’s bread and circuses. Votersare influenced more by politicians’ images andlifestyles than their policies (for good or bad,vide Obama and Palin). Facebook and Twitterhave encouraged entire generations to regressto adolescence, obsessing about the quotidiantrivialities of their circle of friends. The cyber-savvy play in the ether. Popular literature hasdeteriorated into a narcissistic baring of secrets.Whereas feminists taught us to expand thepolitical to include the personal, contemporarypolitics has collapsed into the black hole ofsolipsism. Instead of remaking the world—acollective project directed outward—we areobsessed with individual self-improvement(see the bestseller lists or Amazon rankings)(Lasch 1978).

All this is consistent with economists’ focuson individual choice and conservative politicaldemands for personal responsibility. Women“choose” to be raped by wearing sexy clothes;workers “choose” to risk injury or illness inexchange for higher wages; gays “choose” a“lifestyle” and “choose” AIDS through unpro-tected sex; poor communities “choose” to ex-pose their members to toxic chemicals; youthshould “just say no” to drugs and extramar-ital sex. Marx (1964 [1852]) denounced this150 years ago:

Men make their own history, but they do notmake it as they please; they do not make it un-der self-selected circumstances, but under cir-cumstances existing already, given and trans-mitted from the past.

Ignoring these constraints can lead us to mis-take Thoreau’s “lives of quiet desperation” foreffective resistance. The actions identified byMerry—“foot dragging, sabotage, subversivesongs”—are no more effective against oppres-sion than are substance abuse, gang banging,graffiti, wife beating, religion, or expressivepolitics (anarchists breaking store windowsat World Trade Organization meetings,terrorism).

Consciousness-raising groups empoweredwomen to challenge the roles dictated by pa-triarchy. But racial minorities are oppressed bymore than consciousness; they need access toeducation, wealth, and power. Blaming povertyon culture (Moynihan 1965, Lewis 1966,Harrison 2006) can lead to resignation: “thepoor you shall always have with you.” Culturalstudies must develop and test theories relat-ing legal consciousness to action, starting withpeople’s actual beliefs, not the popular culturethey consume. People know the difference be-tween images (television, film, fiction) and re-ality. Their deepest beliefs about law derivefrom experience (e.g., criminal victimization,police stops, tax audits, custody disputes, evic-tions, mortgage foreclosures). Opinions aboutlegal institutions, processes, rules, and eventsdivorced from daily life may be easy to elicitthrough closed-ended questionnaires, but theirmeaning is opaque. We need to know whetherbelief in law’s legitimacy makes people morewilling to comply against self-interest (Hyde1983) and why the rich and powerful feel soentitled to manipulate law to their advantage.

George H.W. Bush is not the only one whohas problems with “that vision thing.” Half acentury ago, Daniel Bell (1960) predicted theend of ideology; three decades later FrancisFukuyama (1992) imitatively foretold the endof history. Although both may have been pre-mature, many liberals have lost faith in theirideals (not just the state’s capacity to achievethem). Conservatives, who root their beliefs intradition and religion, may always be more con-fident. As Yeats (1920) said, “The best lack allconviction, while the worst/Are full of passion-ate intensity.” Echoing Hamlet’s “native hueof resolution . . . sicklied o’er with the pale castof thought,” Handler (1992a, p. 726) acknowl-edged that “reflexivity becomes disabling,” andMather (2003) expressed concern about cul-tural imperialism. Handler’s hope for consensusthrough Habermas’s “discursive and argumen-tative practices” must confront the bitter par-tisan politics of recent decades. Despairing ofany firm foundation for his ethical convictions,Leff (1979) nevertheless declared:

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Napalming babies is bad.Starving the poor is wicked.Buying and selling each other is depraved.Those who stood up to and died resisting

Hitler, Stalin, Amin, and Pol Pot—andGeneral Custer too—have earned salvation.

Those who acquiesced deserve to be damned.There is in the world such a thing as evil.[All together now:] Sez who?God help us.

LSA presidents agreed. Despite disillusionand skepticism, each has urged scholarship topromote progressive social change. Law is in-trinsically normative; its prescriptions embodysocietal ideals. So even though I found littleevidence that L&S practice followed program,I also cannot resist the hortatory impulse.

For all my reservations about the culturalturn, I agree that consciousness powerfullyobstructs reform. Americans have anathe-matized regulation while demanding greaterprotection (from dangerous foods, drugs,and environmental pollutants) and calling formore criminal convictions and longer prisonsentences. They have retained a naive faithin an unregulated financial market during thegreatest recession in half a century, caused bysubprime mortgages and mystifying deriva-tives. They tolerate regulatory competitionbetween jurisdictions, which incites a race tothe bottom: tax havens shelter corporationsand wealthy individuals; poor regions welcomeenvironmental hazards; capital chases the low-est labor costs. Their antipathy toward the stateencourages it to outsource essential functionsto less responsible private entities. Americansdemand more of government but refuse totax themselves. As a result, public services arestarved, quality deteriorates, prices increase,and usage declines, feeding a vicious cycle,tragically exemplified by the loss of faith inpublic education. Americans vigorously assert

their own rights while accusing others of filingfrivolous lawsuits, fueling a litigation crisis.The less control people feel over their lives themore they yearn for an illusory autonomy—epitomized by survivalists who light out forthe territories like latter-day Huck Finns.The more interdependent the world, the moreAmericans turn isolationist and protectionist orembrace military unilateralism. Science, whichseemed to offer salvation in postwar America,now provokes deep suspicion: geneticallymodified foods, nanotechnology, vaccinations.Technology dramatically eases our lives whilemaking us more dependent on devices wecannot understand. Macroeconomic issuesseem incomprehensible and insoluble: tax re-form, the looming costs of Social Security andMedicare, the ballooning national debt (muchof it owed to China), chronic trade imbalances.Powerful lobbies stymie governmental actionon guns and health care. Unregulated campaigncontributions corrupt democracy. Income in-equality grows relentlessly, fueled by regressivetaxes, a private sector that is 92% unorganized,capital flight, and international labor compe-tition. Intractable collective action problemscomplicate responses to global warming.Confronted by so many problems they cannotsolve, or even understand, people take refugein religion, which seems to offer moral clarityin a confusing world and promises salvationafter it. Politics increasingly shuns the pressingmaterial issues identified above in favor of thesymbolic: abortion, same sex marriage, ordina-tion of women and gays, religion in public life,pornography in popular culture, politicians’sexual behavior (Abel 1998). Eschatological be-liefs proliferate. The loss of faith in rationalityseems even greater in the Muslim world, whichhas seen itself falling behind the West for cen-turies. We urgently need to understand howthese beliefs develop and how they might bechanged.

DISCLOSURE STATEMENT

The author is not aware of any affiliations, memberships, funding, or financial holdings that mightbe perceived as affecting the objectivity of this review.

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LS06-frontmatter ARI 29 September 2010 12:22

Annual Review ofLaw and SocialScience

Volume 6, 2010Contents

Law and Society: Project and PracticeRichard L. Abel � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Resistance to LegalityRichard A. Brisbin, Jr. � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �25

Specters of Foucault in Law and Society ScholarshipMariana Valverde � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �45

Law and Cognitive NeuroscienceOliver R. Goodenough and Micaela Tucker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �61

The Law’s Use of Brain EvidenceJay D. Aronson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �93

Psychological Syndromes and Criminal ResponsibilityChristopher Slobogin � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 109

On the Politics of Imprisonments: A Review of Systematic FindingsDavid Jacobs and Aubrey L. Jackson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 129

Social Historical Studies of Women, Crime, and CourtsMalcolm M. Feeley and Hadar Aviram � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 151

The Nexus of Domestic Violence Reform and Social Science:From Instrument of Social Change to Institutionalized SurveillanceKristin Bumiller � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 173

Law and Culture in a Global Context: Interventions to EradicateFemale Genital CuttingElizabeth Heger Boyle and Amelia Cotton Corl � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 195

The Law and Economics of Bribery and ExtortionSusan Rose-Ackerman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 217

The Politics of Crime, Punishment, and Social Order in East AsiaDavid Leheny and Sida Liu � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 239

Human Rights and Policing: Exigency or Incongruence?Julia Hornberger � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 259

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South African Constitutional Jurisprudence: The First Fifteen YearsD.M. Davis � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 285

After the Rights Revolution: Bills of Rights in the Postconflict StateSujit Choudhry � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 301

The Gatehouses and Mansions: Fifty Years LaterRichard A. Leo and K. Alexa Koenig � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 323

The Strategic Analysis of Judicial DecisionsLee Epstein and Tonja Jacobi � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341

Environmental Law and Native American LawEve Darian-Smith � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 359

The Mass Media, Public Opinion, and Lesbian and Gay RightsDaniel Chomsky and Scott Barclay � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 387

Happiness Studies and Legal PolicyPeter Henry Huang � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 405

Insurance in Sociolegal ResearchTom Baker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 433

The Debate over African American ReparationsJohn Torpey and Maxine Burkett � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 449

Comparative Studies of Law, Slavery, and Race in the AmericasAlejandro de la Fuente and Ariela Gross � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 469

Understanding Law and Race as Mutually Constitutive: An Invitationto Explore an Emerging FieldLaura E. Gomez � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 487

The Comparative Politics of Carbon TaxationKathryn Harrison � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 507

Capitalism, Governance, and Authority: The Case of Corporate SocialResponsibilityRonen Shamir � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 531

Toward a New Legal Empiricism: Empirical Legal Studies and NewLegal RealismMark C. Suchman and Elizabeth Mertz � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 555

Empirical Legal Scholarship in Law ReviewsShari Seidman Diamond and Pam Mueller � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 581

Bureaucratic Ethics: IRBs and the Legal Regulation of HumanSubjects ResearchCarol A. Heimer and JuLeigh Petty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 601

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Conflict Resolution in OrganizationsCalvin Morrill and Danielle S. Rudes � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 627

On Law, Organizations, and Social MovementsLauren B. Edelman, Gwendolyn Leachman, and Doug McAdam � � � � � � � � � � � � � � � � � � � � � � � � 653

Indexes

Cumulative Index of Contributing Authors, Volumes 1–6 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 687

Cumulative Index of Chapter Titles, Volumes 1–6 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 689

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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AR392-FM ARI 30 September 2009 19:8

Annual Review ofLaw and SocialScience

Volume 5, 2009Contents

Morality in the Law: The Psychological Foundations of Citizens’Desires to Punish TransgressionsJohn M. Darley � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Experimental Law and EconomicsRachel Croson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �25

The Challenge of Empirical Research on Business Compliancein Regulatory CapitalismChristine Parker and Vibeke Nielsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �45

Welfare, Workfare, and Citizenship in the Developed WorldJoel F. Handler � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �71

Willpower and Legal PolicyLee Anne Fennell � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �91

More Religion, Less Crime? Science, Felonies, and theThree Faith FactorsJohn J. DiIulio, Jr. � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 115

The Political Economy of ProsecutionSanford C. Gordon and Gregory A. Huber � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 135

Lineups and Eyewitness IdentificationAmy-May Leach, Brian L. Cutler, and Lori Van Wallendael � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 157

Punitive DamagesNeil Vidmar and Matthew W. Wolfe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 179

Does the Process of Constitution-Making Matter?Tom Ginsburg, Zachary Elkins, and Justin Blount � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 201

The New Legal PluralismPaul Schiff Berman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 225

Global Legal PluralismRalf Michaels � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 243

Recursivity of Global Normmaking: A Sociolegal AgendaTerence C. Halliday � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 263

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AR392-FM ARI 30 September 2009 19:8

Rethinking Sovereignty in International LawAntony Anghie � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 291

Does Torture Work? A Sociolegal Assessment of the Practicein Historical and Global PerspectiveLisa Hajjar � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 311

The Empirical Study of Terrorism: Social and Legal ResearchGary LaFree and Gary Ackerman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 347

Public Support for Civil Liberties Pre- and Post-9/11John L. Sullivan and Henriet Hendriks � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 375

The Expanding Purview of Cultural Properties and Their PoliticsRosemary J. Coombe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 393

Indexes

Cumulative Index of Contributing Authors, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 413

Cumulative Index of Chapter Titles, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 415

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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