LAW & SOCIETY REVIEW
VOLUME 57 | NUMBER 4
The life and death of constitutions
Kim Lane Scheppele
LSA Presidential Address, 2019, Washington DC
This presidential address is being published years after it was given, which means that this piece is like a bug in amber, frozen at 2019. That said, our world in 2023 is not as different from the world of 2019 as we sometimes like to think. The threats to constitutional democracy in many countries around the world—including the US—have not ended; temporary respites due to less damaging election results in the meantime do not mean that the problems I identify here have been definitively solved.
I’m grateful that my call to action at the 2019 LSA meetings was heeded by many members of the Association, particularly through the formation of the Project on Autocratic Legalism (PAL) inspired by David Trubek and led by Fabio de Sa e Silva. This collective research project has taken a deep dive into the ways that democracy is being undermined in Brazil, South Africa and India, culminating in many panels at the international meeting in Lisbon in 2022. You can follow developments and publications of the PAL group at https://www.autocratic-legalism.net/.
Reflections on South Africa’s first Black Chief Justice, Ismail Mahomed
Surveillance deputies: When ordinary people surveil for the state
Sarah Brayne, Sarah Lageson, Karen Levy
The state has long relied on ordinary civilians to do surveillance work, but recent advances in networked technologies are expanding mechanisms for surveillance and social control. In this article, we analyze the phenomenon in which private individuals conduct surveillance on behalf of the state, often using private sector technologies to do so. We develop the concept of surveillance deputies to describe when ordinary people, rather than state actors, use their labor and economic resources to engage in such activity. Although surveillance deputies themselves are not new, their participation in everyday surveillance deputy work has rapidly increased under unique economic and technological conditions of our digital age. Drawing upon contemporary empirical examples, we hypothesize four conditions that contribute to surveillance deputization and strengthen its effects: (1) when interests between the state and civilians converge; (2) when law institutionalizes surveillance deputization or fails to clarify its boundaries; (3) when technological offerings expand personal surveillance capabilities; and (4) when unequal groups use surveillance to gain power or leverage resistance. In developing these hypotheses, we bridge research in law and society, sociology, surveillance studies, and science and technology studies and suggest avenues for future empirical investigation.
A higher bar: Institutional impediments to hate crime prosecution
Ryan D. King, Besiki L. Kutateladze
Why are hate crime cases so rarely prosecuted? Most states and the federal government have hate crime laws on their books, yet available data indicate few prosecutions in most jurisdictions. Drawing on case files and interviews with police and prosecutors in one jurisdiction, three institutional impediments to hate crime prosecution are identified: evidentiary inflation, by which law enforcement uses a higher burden of proof than what is required by statute; loose coupling between police departments and prosecutors’ offices; and cultural distance between law enforcement and victims. Findings also reveal that advocacy groups and media can successfully increase the visibility of cases and draw the attention of prosecutors. The findings align with aspects of legal endogeneity theory and enhance our understanding of the role of organizations in constructing the meaning of law. The results also help explain why some laws are rarely enforced, even when they have support from key personnel in an organization.
Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries
Jeb Barnes, Parker Hevron, Elli Menounou
Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants’ views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.
Public charge, legal estrangement, and renegotiating situational trust in the US healthcare safety net
Meredith Van Natta
US immigration law increasingly excludes many immigrants materially and symbolically from vital safety-net resources. Existing scholarship has emphasized the public charge rule as a key mechanism for enacting these exclusionary trends, but less is known about how recent public charge uncertainty has shaped how noncitizens and healthcare workers negotiate safety-net resources. Drawing on ethnographic observations and interviews with 80 safety-net workers and patients in three US states from 2015 to 2020, I argue that intensifying anti-immigrant rhetoric surrounding public charge has extended a sense of surveillance into clinical spaces in previously unexamined ways. Drawing on theories of medical legal violence, system avoidance, and legal estrangement, I demonstrate how these dynamics undermined immigrants’ health chances and compromised clinic workers’ efforts to facilitate care. I also reveal how participants responded to this insinuation of legal violence in healthcare spaces by promoting situational trust in specific procedures and institutions.
Speaking for the dying: Life-and-death decisions in intensive care. By Susan Shapiro. Chicago: University of Chicago Press, 2019. 368 pp. $32.00 paperback
David M. Engel
The shariatisation of Indonesia: The politics of the Council of Indonesian Ulama (MUI). By Syafiq Hasyim. Leiden: Brill, 2023. 459 pp. $238.00 hardcover
Teaching fear: How we learn to fear crime and why it matters. By Nicole E. Rader. Philadelphia: Temple University Press, 2023. 203 pp. $32.95 paperback
Precarious protections: Unaccompanied minors seeking asylum in the United States. By Chiara Galli. Oakland: University of California Press, 2023. 296 pp. $29.95 paperback
The end of family court: How abolishing the court brings justice to children and families. By Jane M. Spinak. New York: New York University Press, 2023. 384 pp. $35.00 hardcover
Data and democracy at work: Advanced information technologies, labor law and the new working class. By Brishen Rogers. Cambridge: The MIT Press, 2023. 288 pp. $50.00 paperback