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Annual Review of Law and Social Science - Early Publication
Reviews in Advance appear online ahead of the full published volume. View expected publication dates for upcoming volumes.
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Challenges to the Contemporary Death Penalty in the United States
First published online: 02 July 2024More LessThis review focuses on empirical research about contemporary challenges to the death penalty in the United States. Challenges are factors that obstruct capital punishment, including legal or political restrictions; elimination at the federal or state level; or the hindrance of the process at its operational stages of charging, adjudicating, appeals, clemency, or executions. By the best-known measures, the death penalty has been in decline in the United States since the turn of the century. Lethal injection errors—“botches”—are arguably the most important current challenge to the institution. Wrongful capital conviction has made capital punishment less tolerable to the general public. Mitigation remains an important challenge to the death penalty. This review emphasizes botches, innocence, and mitigation but also touches on disparate impact, failure-to-deliver a social benefit, and cost. Along the way, this review proposes a framework for considering challenges as they occur on two continua of impact, a micro/meso/macro axis and a narrow/wide axis.
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Who Benefits from Mass Incarceration? A Stratification Economics Approach to the “Collateral Consequences” of Punishment
First published online: 01 July 2024More LessA rich empirical literature documents the consequences of mass incarceration for the wealth, health, and safety of Black Americans. Yet it often frames such consequences as a regrettable artifact of racially disproportionate criminal legal system contact, rather than situating the impetus and functioning of the criminal legal system in the wider context of White political and economic domination. Revisiting a quarter century of mass incarceration research through a stratification economics lens, we highlight how mass incarceration shapes Black–White competition for education, employment, and financial resources and contributes to Black–White disparities in well-being. Highlighting persistent research gaps, we propose a research agenda to better understand how mass incarceration contributes to systematic White advantage. To address mass incarceration's consequences and transform the conditions of White political and economic domination under which it arose, we call for legislative and judicial intervention to remedy White hyper-enfranchisement and reparations to eliminate the Black–White wealth gap.
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Polarization, Populism, and the Crisis of American Democracy
First published online: 01 July 2024More LessAmerican democracy is in crisis. The emergence of affective polarization and populism has contributed to a divided America in which both sides perceive every election as an existential threat to their ways of life, values, and democracy itself. Central features of liberal democracy, including the right to vote, the system of checks and balances, and presidential transitions of power, appear to be collectively under threat in ways they have not been since the Civil War. Scholars diverge on both the sources of and responses to the crisis. For some, the problem is too much democracy, and the solution is less. For others, the problem is too little democracy, and the solution is more. This review offers a synthesis of the contrasting accounts of American democracy in crisis and advances a third alternative of better democracy as a key to escaping the crisis.
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Commercial Boilerplate: A Review and Research Agenda
First published online: 17 June 2024More LessBoilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate—the standard forms used in transactions for corporate or sovereign bonds or merger agreements—has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship is questioning that assumption. This article reviews the complexities of contract production in these large markets and provides a window into an exciting new area of contracts research.
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New Technologies in Search and Seizure
First published online: 07 June 2024More LessThe Fourth Amendment and court cases interpreting it provide guidelines for how law enforcement should legally approach searching for and taking evidence in criminal investigations. Though it originally applied to physical intrusion by law enforcement, current—and likely future—intrusions are more virtual in nature. Law enforcement officers no longer need to walk onto someone's property to search for criminal activity because various technologies now provide similar or more in-depth information. Technological innovations have stretched the bounds of the Fourth Amendment. Although public opinion cannot answer the policy implications, it can speak to what the public reasonably expects of the police. In general, limited research demonstrates that the public has concerns about the way law enforcement officers can use technology in their investigations, but those concerns are not strong enough to decrease individuals’ technology use.
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The Politics of Expertise in Genomics Policy and Law
First published online: 15 May 2024More LessGenomics and biotechnology have generated controversy for decades, about the moral limits of tinkering with and commodifying life, the boundary between nature and technology, the respectful treatment of research participants, and the proper evaluation of emerging technologies. Socio-legal and science and technology studies scholars have demonstrated how the resolution of these questions has serious implications for both science and the law, including the appropriate conduct and direction of scientific research and the construction of legal categories and rights. This article demonstrates that these conflicts also have profound impacts on the politics of science and technology, and particularly approaches to relevant knowledge and expertise. Humanities, social scientific, legal, and lay knowledge asserted themselves through the establishment of human genetics research and battles over the ownership of biological materials and data. However, US political culture—which favors technical and market knowledge—constrained their authority. Cross-national comparison highlights this finding, as other jurisdictions have been more inclusive in their approaches to science and technology governance.
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Debt on the Ground: The Scholarly Discourse of Bankruptcy and Financial Precarity
First published online: 09 May 2024More LessA rich literature uses law and social science methods to better understand household financial distress and overindebtedness both inside and outside of bankruptcy. This scholarship contributes to several ongoing scholarly conversations, such as those on income and wealth disparities across race and class, how people live in circumstances of financial precarity, why people turn to the legal system to solve their problems, and how to improve access to justice so people can get the help they need. We first review the current literature about who files bankruptcy, the contributors to people's need to file bankruptcy, what happens to them in bankruptcy court, and what happens after their bankruptcy cases conclude. We then outline a research agenda of low-hanging fruit that will contribute to broader sociological and sociolegal research agendas, including economic mobility, aging, gender studies, health studies, family studies, social psychology, and policy work.
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International Law, Security, and Sanctions: A Decolonial Perspective on the Transnational Legal Order of Sanctions
Grégoire Mallard, and Jin SunFirst published online: 29 April 2024More LessThis article reviews recent literature on sanctions from international law, political science, sociology, anthropology, and history. It shows how the literature during the comprehensive sanctions decade (the 1990s), with a largely critical view on sanctions in the age of globalization, was co-opted by the targetization of sanctions in the sanctions miniaturization decade (the 2000s). It then reviews the sanctions literature in sociology and anthropology during the sanctions enforcement decade (the 2010s), addressing the transnational characteristics of sanctions, their infrastructural materiality in the digital economy, and the deputization of private actors to police their implementation. Last, the article reviews the literature in colonial governmentality to encourage sanctions specialists to take a longer-term view of transnational orders of sanctions. This section ends with a call to decolonize sanctions research—or rather, to question the colonial origins of sanctions as an instrument of world making so that a properly decolonial perspective on sanctions can be elaborated.
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The Psychology of Guilty Plea Decisions
First published online: 19 April 2024More LessIn many jurisdictions, most convictions result from guilty pleas. This reality means that most convictions in these jurisdictions are reached not as the result of the decision-making of judges or juries but as the result of the decision-making of prosecutors (who often have discretion to offer incentives that can encourage defendants to plead guilty) and defendants (who must decide whether to plead guilty). These decisions can be psychologically complex and driven by a range of tactical and normative considerations. This article provides an overview of what we know about how prosecutors and defendants make decisions relating to guilty pleas, examines how modern psychological theory can help us understand these decisions better, and discusses directions for future research in this area. This future research will be important in more effectively evaluating the extent to which convictions obtained via guilty plea are consistent with normative legal goals.
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