Rorschach Tests,Pluralism, and Hopes for the Future: A Response to the Responses

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.     

Distributed Generation of Electricity: The Role of Academic Research and Advice in California’s “Clean DG” Policy Network

Deregulation and the combined threats of energy crises and global warming concern nations around the world, yet these issues continue to be addressed more directly by domestic regulatory systems than by international institutions. The present analyses of the integration of distributed sources of power generation (DG) into California’s electric utility system suggests that domestic environmental dilemmas with international repercussions provide an obvious entrée for global environmental policy specialists into the practice of environmental policy-making and law. Here I review current scholarship on policy networks that illuminates the contributions that technical and policy experts can make to such networks surrounding environmental issues. I then introduce the key members of California’s “clean DG” policy network that emphasizes the role of academic experts in this influential political system, and discuss how my own research has impacted the development of the state’s DG policy. I conclude that scholars are well positioned to observe and engage domestic and international environmental policy networks, and thereby also to influence environmental politics and law.     

The Pull of the Policy Audience

Much research in the sociology of law seeks to play a role informing policymakers about the effects of particular policy initiatives and to participate in debates about how to use law as an instrument of public policy. The paper examines the origins of policy studies in legal realism and describes the way contemporary law and society scholars selectively appropriate aspects of the realist heritage while ignoring others. Particular attention is paid to the ways in which those scholars separate policy from politics and operate as if policy focused research were not itself political. The paper traces the pull of the policy audience and the separation of policy from politics through a close examination of several widely respected examples of sociolegal scholarship. In addition, an effort is made to assess the impact that the desire to speak to the powerful has had in shaping what constitutes acceptable scientific practice and in shaping the domain of study. The paper concludes by arguing that the sociology of law would benefit from an effort to interrogate the basic premises which inform policy debate and that such an interrogation itself requires greater distance from the policy audience.     

Partisan Bridges to Bipartisanship: The Case of Contraceptive Coverage

The negative consequences of polarization have been pointed to by scholars and politicians alike as evidence of a need for a renewal of bipartisanship. However, scholarship on bipartisanship remains limited. This article develops a theory of partisan bridging that predicts when and why certain legislators might be willing to cross the partisan aisle. I argue that personal preferences can lead some legislators to cross the aisle in search of consensus, in effect serving as “partisan bridges.” I test my theory by examining the role of Republican women in the diffusion of contraceptive coverage at the state level. Through an individual‐level analysis of sponsorship and vote choice and an aggregate‐level analysis of policy diffusion, I find that moderate Republican women at times served as critical actors in the policy process.     

Review Symposium: Interdisciplinary Readings of Ari Bryen's Violence in Roman Egypt—Author's Reflections

Bryen, Ari Z. 2013 . Violence in Roman Egypt: A Study in Legal Interpretation . Philadelphia, PA: University of Pennsylvania Press. Pp. 376. $75.00 cloth; $75.00 eBook. In this brief comment, I respond to symposium reviewers of my book Violence in Roman Egypt (2013). I consider the insights each provides from their respective discipline, and identify connections across those disciplines as well. More broadly, I comment on the theoretical purchase and unique challenges of law and society scholarship.     

The state of the nation: diversity and the British legal academy

In this short piece, I set out briefly what we know about the challenge of diversity in the legal academy from existing scholarship. That field, in the UK at least, is sparse. I then go on to present a snapshot of the legal academy using data from the Higher Education Statistics Agency (HESA). I do this as the start of a much larger project on diversity and the legal academy that I plan to undertake over the next year. My argument is rather simple. The diversity of the legal academy reflects neither the diversity of our law student bodies nor the diversity of the wider population. Such diversity is vital for a number of reasons. My hope is that this piece can be the start of a dialogue on an important and largely ignored topic, and that further research will be done in this area.     

Reproducing crises: Understanding the role of law in the COVID-19 global pandemic

Governmental responses to the COVID-19 global pandemic have generated numerous constitutionals, policy, legal, and political-economic debates. Scholarly engagements with the sociolegal and policy consequences of the COVID-19 pandemic have been dominated by discussion on the role of emergency powers, the suspension of individual civil liberties, the suspension of economic rules in order to guarantee economic survival, and social regulation of public spaces and of workplaces. This paper aims to explore how a critical sociolegal scholarship can contribute to a more sophisticated understanding of the role of law in creating the unequal conditions that propitiated the COVID-19 pandemic and that might enable further crises. This introduction offers a roadmap for theorizing the limits of law, the operationalization of emergency powers and the different policies implemented by global south and north countries in response to the pandemic. This introduction is structured as follow: (1) provides a general overview of the law and society tradition and its engagement with the COVID-19 pandemic; (2) engages with three key consequences of the pandemic, labor, and the lockdown; colonial implications; and the limits of law; (3) introduces the papers in this special issue; (4) sketches a proposal for the critical sociolegal scholarship of law and crises.     

Your data will never die,but you will: A comparative analysis of US and UK post-mortem data donation frameworks

Posthumous medical data donation (PMDD) for the purpose of legitimate, non-commercial and, potentially, very beneficial medical research has been sparsely discussed in legal scholarship to date. Conversely, quite an extensive social science and humanities research establishes benefits of this practice. It also finds that PMDD enables individuals to employ their altruistic motivations and aspirations by helping them participate in ‘citizen's science’ and medical research, thus supporting efforts in finding cures for some of the acutest diseases of today. There appears to be no jurisdiction where a regulatory framework supports and enables PMDD. This paper analyses whether and to what extent law and policy should enable this practice. We take a comparative approach, examining the position under both US and UK law, providing the first comparative legal account of this practice. We do not aim to suggest a detailed legal solution for PMDD, but rather key considerations and principles for legislative/policy reforms, which would support the practice of PMDD. We discuss organ donation and provide a comparative outlook with the aim of drawing lessons from this practice, and applying them to the regulation of PMDD. Our analysis is both normative and black letter since we consider arguments regarding the necessity of organ and data donation, as well as the law that regulates these practices.     

“Bending” Evidence for a Cause: Scholar‐Advocacy Bias in Family Law

There are a number of salient public policy issues in the family law field that have invoked impassioned policy debates on a recurrent basis. In the absence of a body of research to address these critical concerns, advocates under the guise of social science scholarship have exacerbated the confusion and controversy by construing the scant available research evidence to justify their own ends, without regard to the relevance, quality, utility, and limitations of the studies. This is one of two articles on this problem that we have named “scholar‐advocacy bias.” In this article, we discuss the difference between truth in social science and truth in law. We identify common ways in which social science researchers and reviewers of research—wittingly or unwittingly—can become advocates for ideological positions and social policies at the expense of being balanced reporters of research evidence as illustrated by recent debates about overnight parenting of infants and toddlers. We also consider how adherence to established scientific principles and methods prevents the misuse of research in this way.     

A Reply to Five Friends

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law (Schauer 2015 ) have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence.     

The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change

Early neoinstitutional theory tended to assume institutional reproduction, while recent accounts privilege situations in which alternative models from outside an organizational environment or delegitimizing criticism from within precipitate institutional change. We know little about institutions that persist despite such change conditions. Recent advances in sociological field theory suggest that interfield ties contribute to institutional change but under‐theorize how such ties may reinforce institutions. Extending both approaches, I incorporate self‐reinforcing mechanisms from path‐dependence scholarship. I elucidate my framework by analyzing the student‐edited, student‐reviewed law review. Despite its anomalous position relative to the dominant peer‐reviewed journal model of other disciplines, and despite sustained criticisms from those who publish in them, the law review remains a bedrock institution of law schools and legal scholarship. I combine qualitative historical analyses of legal scholarship and law schools with quantitative analyses of law‐review structures and field contestation. The analysis covers law review's entire historical trajectory—its emergence, its institutionalization and coherence of a field around it, and its current state as a contested but persistent institution. I argue that self‐reinforcing mechanisms evident in law review's ties to related fields‐legal practice, law schools, the university, and legal periodicals—both enabled its emergence and have buffered it against change.     

Corrective Justice as A Principle of Criminal Law: A Prolegomenon

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about responding to crime in a way that corrects this disturbance. More specifically, I claim that corrective justice is concerned with the protection of interests that persons have in owning private goods throughout standard interactions with other persons. The argument proceeds in three steps. First, I specify the subject-matter that principles of criminal law need to ground and provide an outline of the idea of corrective justice. Second, I show that corrective justice can account for the main cases of crime and the salient modes of criminal responsibility. I also argue that corrective justice can make sense of two prima facie recalcitrant types of cases (rape and inchoate offenses). Third, and finally, I address two objections to my corrective justice theory of criminal law. The first concerns the implications corrective justice has for locating criminal law along the private/public law divide. The second objection raises the putatively problematic consequences corrective justice has for understanding the separation between criminal and civil law.     

The nature, origin and impact of legally binding consequences: the case of the climate regime

The Marrakesh Accords provide a detailed compliance system for the Kyoto Protocol. An innovative feature of this system is an Enforcement Branch authorized to apply punitive measures or “consequences” in the second commitment period to Annex I Parties that have been found to be in non-compliance in the first commitment period. However, even after the latest Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), COP-11, and the first COP serving as the meeting of the Parties to the Kyoto Protocol, COP/MOP-1, it is not yet clear whether these consequences will be legally binding. The purpose of this paper is three-fold. First, we examine the legal nature of the punitive consequences embedded in the Marrakesh Accords. Second, we discuss potential motives for making these consequences legally binding. We point out that one such motive is that their implementation requires cooperation by the Party that is in non-compliance. In this regard, Kyotoȁ9s compliance system differs from other international compliance systems equipped with punitive consequences, such as those of the WTO and the UN. Finally, we consider whether making the punitive consequences legally binding is likely to make a difference. The conclusion, which should be of interest to both academic researchers and the policy community, is that the legal status of the consequences is likely to have only a modest effect on compliance levels. A country that deliberately fails to abide by other legally binding commitments under the Kyoto Protocol is also likely to resist the application of punitive consequences, regardless of whether these consequences are made legally binding or not.     

The Nature of Juridical Proof

Much of evidence scholarship deals with straight forward doctrinal rules,such as relevancy,hearsay,character evidence,expert testimony and the like.These rules are extremely important,and I have lectured on many of them in China.There is another set of questions,though,questions that deal with the conceptual foundations of the law of evidence specifically,or the rule of law more generally.In my first lecture,I touched on some of these issues in discussing the relationship between evidence,procedure,and substantive law.Today I wish to talk with you about another fundamental question,in fact perhaps the most fundamental question pertaining to evidence law,and that question is: What is the nature of juridical proof?     

试论权利的逻辑构成

在我国法学界,对权利的逻辑构成的研究是随着权利研究和权利实践的逐步深入应运而生的。在已有研究的基础上阐述自己的认识。在对国内学界在此问题上的各种观点进行归纳和简要分析的基础上,认为权利是由主体、利益、行为和正当性四要件构成的,并对这一分析框架的相关内容做出了说明。希望对我国的权利研究有所助益。     

Pornography and the construction of misogyny

Summary

In this paper I return to my work in Pornography: Women, Violence and Civil Liberties, the edited volume published in 1992 by Oxford University Press, and subsequently my work on pornography, harm and human rights (Itzin, 1995, 1996a), and to pornography and child sexual abuse (Itzin, 1996b, 1997a,b, 2000a,b,c). I draw from and build on that work and from the contents of the pornography special issue of the Journal of Sexual Aggression (Itzin and Cox, 2000). This paper covers key issues such as legislation and regulation, censorship' and ‘freedom’, the literature on pornography effects, the role of pornography in the aetiology of sex offending and in the construction of desire. In particular, the paper is concerned with theorising aetiology, causality and the ‘epistemology of public policy’ on pornography. It draws from and builds on the scholarship and activism of radical feminism in conceptualising and campaigning against pornography-related harm.     

Coase’s world and Coase’s blackboard

In this contribution I focus on a particular characteristic of Ronald Coase’s work, as exhibited in “The Problem of Social Cost”: his ability to force upon his audience a clearer grasp of reality than they previously held. More specifically, I aim to consider to what extent the “blackboard economics” that Coase himself derided have been avoided in a Coasean world, taking that expression to refer in some sense to a world where Coasean insights can flourish, and as such to be a world not simply of Coase’s own making but a world that has been developed by others in applying the Coase Theorem. My strategy is to interrogate the nature of a Coasean world through developing a framework that can look more closely at different approaches to theoretical modelling, the different worlds involved in these models, and the different positive and normative applications that can be derived from them. I shall further consider whether the understanding of the law that inhabits a Coasean world reflects a “real-world” legal environment. Finally, I shall seek to assess the impact of Coase’s work on our understanding of the relationship between law and economics, in our world.     

Event Studies and the Law: Part II: Empirical Studies of Corporate Law

This article is the second part of a review of the event studymethodology, which has proved to be one of the most successfuluses of econometrics in policy analysis. In this part we focuson the methodology's application to corporate law and corporategovernance issues. Event studies have played an important rolein the making of corporate law and in corporate law scholarship.The reason for this input is twofold. First, there is a matchbetween the methodology and subject matter: the goal of corporatelaw is to increase shareholder wealth, and event studies providea metric for measurement of the impact upon stock prices ofpolicy decisions. Second, because the participants in corporatelaw debates share the objective of corporate law, to adopt policiesthat enhance shareholder wealth, their disagreements are overthe means to achieve that end. Hence, the discourse can be empiricallyinformed. The article concludes by sketching the methodology'suse in evaluating the economic effects of regulation. Whileevent studies' usefulness for policy analysis is by now familiarin the corporate law setting, we hope that our two-part reviewwill suggest appropriate applications to other fields of law.     

Justice as freedom,fairness, compassion,and utilitarianism: How my life experiences shaped my views of justice

This essay lays out my definition of justice and traces the origins of its conception. I identify and discuss very specific life experiences and how they have affected my understanding of justice. Specific incidents include early childhood experiences, key events in adolescence, and the most important episodes from early adulthood. I examine my own family conditions and early relationships and consider the influences of certain television shows and music in childhood and adolescence. I also discuss the effects of various educational experiences. The culmination of these life experiences was the emergence of a very strong sense of justice, reciprocity, and compassion for others, particularly for the least powerful and most vulnerable in our midst. These experiences in essence pushed me into the field of criminal justice and into the worlds of academia and social justice activism. They also allowed me finally to see my mission in life and to understand how all my life experiences have shaped my sense of justice.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.