JCS Focus |《法律与社会科学年鉴》最新目录及摘要|key|literature|reviews|science|法律与社会科学年鉴

JCS Focus

The Journal of Chinese Sociology

·社会学· 国际顶刊·每周推介·

本期内容

Annual Review of Law and Social Science

︽法律与社会科学年鉴︾

Annual Review of Law and Social Science（《法律与社会科学年鉴》，简称ARLSS）是一个非营利性出版物，致力于综合和整合知识，以促进科学进步和社会福祉。该刊关注法律和与之相关的规则、制度、流程、行为体系等方面的社会科学研究，并以此增进对法律、文化、社会结构和社会之间复杂关系的理解。

ARLSS 每年更新一期，最新一期（Volume 20, 2024）共有21篇文章，详情如下。

Content

Annual Review of Law and Social Science

Abstract

Annual Review of Law and Social Science

Moral Logics of Bureaucratic Indifference

Talia Shiff

This article reviews scholarship concerned with the ways in which morality shapes organizational practice on the frontlines of the state: how bureaucrats, who draw on, contest, and apply moral schemas while delegating rights, resources, and punishments on behalf of the state to discrete subjects, manage the reality of being on the frontlines. A central focus of this scholarship is on situations characterized by tensions between agency-codified regulations and moral values; in such situations, moral categorizations once relegated to the background of consciousness become visible and subject to debate and, in turn, shed important light on how morality informs organizational practice. Current theorizing on the interrelations between morality and organizational practice in client-serving bureaucracies could nonetheless be improved by greater scholarly attention to bureaucrats’ perceptions of moral incongruence, and to the micro-dynamic processes through which they seek to actualize their aspirations for moral resolution.

The Life of the Rule of Law

Kim Lane Scheppele

The rule of law has become all things to all people, which is precisely why it has been hard to define. Rather than attempt that feat, this article traces how the rule of law has developed as a set of specific governing practices both in the history of comparative law and in recent policy debates. Whereas national legal traditions blended ideas about the constraining effects of law with normative ideas about the organization of politics, the policy conversation has tended to depoliticize law altogether. As a result, it became possible for aspirational autocrats determined to undermine normative legal constraints to game the system and use law for autocratic ends. The rule of law is now beginning a new life, however, through a movement to deparochialize law and re-embed it in transnational norms. This rule of law writ large has become a new touchstone for holding political power accountable through law.

Empirical Approaches to the Rule of Law: Contours and Challenges of a Social Science That Does Not Quite Yet Exist

Marc Hertogh

In the past, the rule of law was largely overlooked by sociologists and other social scientists. However, recent years have seen an increasing number of empirical studies of the rule of law. I survey that diverse literature and identify three generations of empirical research, each based on a different approach: (a) the rule of law in action, (b) the rule of law index, and (c) the living rule of law. These studies give us a detailed, but often sobering, view of the rule of law in the real world. I critically review the emerging field and discuss challenges for future research. Developing a more coherent social science of the rule of law is important because it helps us to understand that the rule of law is defined not only by formal institutions and legal documents but also by the place of law in people's everyday lives.

The Military Turn in Comparative Constitutional Law: Constitutions and the Military in Authoritarian Regimes

Melissa Crouch

Studies of constitutions in authoritarian regimes reveal a new finding hiding in plain sight: that the military is often a key constitutional actor. The question of how the military uses law and constitutions to enable and facilitate its influence in constitution making and constitutional practice is under-researched. The military demands scholarly attention because of the unprecedented opportunities for the military in governance due to the rise of populism and the decline of democracy, internal conflict, efforts at counter-terrorism and anti-trafficking, and the COVID-19 global pandemic. I review the literature across law and the social sciences on the constitution and the military in authoritarian regimes. In doing so, I demonstrate that the military is an important, yet overlooked, constitutional actor; that civilian control of the military by law is never absolute but a matter of degree and changes over time; and that histories of military rule and military use of law and constitutions matter.

Revolutions and Law

Ivan Ermakoff

Two broad thematic perspectives can be distinguished in the literature that broaches the revolutions–law nexus. One considers how actors’ relations to, and usages of, legal statutes and constitutional provisions affect the dynamics of revolutionary conjunctures (law in revolutions). The other examines how the dynamics and modalities of revolutionary processes affect the content of law and the configuration of the legal order (revolutions in law). Subsumed to the law in revolutions perspective are five main topics: the use of constitutional provisions as instruments of revolutionary subversion, legally framed defensive strategies, constitutional devolutions, legitimation problems, and the courts’ stances. The revolutions in law perspective encompasses reflections on the status of law in revolutionary paradigms, the impacts of revolutionary events as acts of foundation, shifting conceptions of constituent power, and the issue of continuities coexisting with ruptures. Cutting across these two perspectives are challenges and pitfalls that studies of revolutions and law can hardly ignore: the reification of analytical and descriptive categories, the confusion of normative and positive standpoints, and the reliance on unconditional claims. Studies overcome these challenges when they document and analyze the processes whereby actors engage law as they make decisions and pursue courses of action.

International Law, Security, and Sanctions: A Decolonial Perspective on the Transnational Legal Order of Sanctions

Grégoire Mallard, and Jin Sun

This 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.

Statelessness: A Radical Rethinking of the Dominant Citizenism Paradigm

Dimitry V. Kochenov

A new approach to statelessness has emerged in the literature on the topic. Taking citizenism as a starting point and pioneered by Swider and Bloom, this approach offers a completely fresh paradigm for studying and understanding the statelesseness phenomenon. In the contemporary global context where citizenships are deeply unequal and racialized, the focus on rights invites us to dismiss the baseless presumption that fighting statelessness is always in the interests of the populations concerned, let alone that it is directly connected to the protection of human and citizenship rights. It is the world's inequitable neo-feudal citizenism arrangement that is a problem, not the fact that some people do not fit neatly into the citizenism hierarchy and find themselves in a position of statelessness. Shedding light on the role of citizenship and statelessness in the world today as tools of preservation of racialized hierarchies and inequitable exclusion of most of the world's population from rights at home and abroad, the new scholarship questions the UN High Commissioner for Refugees's mission and actions in this domain and takes issue with the self-serving parochialism of dominant Western citizenship and statelessness literatures.

Judgment by Peers: Lay Participation in Legal Decision Making

Valerie P. Hans, Shari Seidman Diamond, Sanja Kutnjak Ivković, and Nancy S. Marder

Almost two-thirds of countries worldwide rely on laypersons as legal decision makers in criminal cases, and a substantial number use laypersons to resolve civil disputes. Laypersons participate as jurors, lay judges, lay magistrates, and members of lay courts. Their participation enhances fact-finding by incorporating community views and values into legal decision making. Lay participation can also increase the transparency and legitimacy of law and the courts and promote democracy. As a result, some countries have adopted lay participation in recent decades. Yet, concerns about competence and bias have led other countries to circumscribe or abolish their systems of lay participation. This review describes the different roles that laypersons play as legal decision makers and the work that they do. It also describes the competing trends to expand or limit lay participation in legal decision making. After summarizing the research evidence, this article concludes that there is much value in judgment by peers.

What Does It Mean to Be an Ethical Lawyer? The Importance of Context

Lynn Mather, and Leslie C. Levin

Although the entire legal profession shares a single ethical code, lawyers’ understanding of what it means to be “ethical” shows considerable variation. This article discusses the factors that shape lawyers’ ethical conduct in practice. We review the role of legal education, bar associations, the workplace, and hard and soft regulators in the construction of lawyers’ ethical values. We then explore the important role that practice contexts play in shaping lawyers’ understanding of appropriate ethical conduct. Some of the key explanatory factors for differences among lawyers include type of client, office size, specialty and specialization, regulators, and the extent to which lawyers engage in litigation. We then anticipate new ethical challenges for lawyers created by market pressures and other factors and identify questions for future research.

The Psychology of Guilty Plea Decision

Rebecca K. Helm

In 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.

Commercial Boilerplate: A Review and Research Agenda

Robert E. Scott, Stephen J. Choi, and Mitu Gulati

Boilerplate 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.

Debt on the Ground: The Scholarly Discourse of Bankruptcy and Financial Precarity

Pamela Foohey, Robert M. Lawless, and Deborah Thorne

A 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.

The Politics of Expertise in Genomics Policy and Law

Shobita Parthasarathy

Genomics 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.

Empirical Disability Legal Studies

Doron Dorfman

Disability studies is an interdisciplinary field investigating the nature of disability as a social and cultural phenomenon. Since the mid-2000s, legal scholars have been employing a disability studies lens to explore legal doctrine and the treatment of people with disabilities under the law. This article identifies a nascent scholarly movement I call empirical disability legal studies: utilizing both a disability studies lens and empirical methods associated with the social sciences to study disability law. Legal scholars have used empirical methods, involving an analysis of quantitative or qualitative data, to explore three main themes: the experiences of disabled individuals within the formal legal system, the negotiations of disability rights in everyday life outside of formal legal institutions, and the construction of disability in legal texts. This article calls for more scholars to do work in the empirical disability legal studies tradition and puts forward new unexplored paths to expand such inquiry into the legal treatment of disability.

Abortion Law Illiberalism and Feminist Politics in Comparative Perspective

Joanna N. Erdman, and Paola Bergallo

Since the 1970s, a liberal politics has dominated comparative abortion law, one almost too ubiquitous to name. This article tracks departures from liberal abortion law in Europe and the Americas that have reshaped the field of comparative abortion law. Section 2 examines the repurposing of liberal abortion law for illiberal ends in a conservative moment of authoritarian governments and their anti-gender campaigns. Drawing on larger ideas of autocratic legalism, the article analyzes how governments and courts have used the features of liberal abortion law to revoke or defeat abortion rights. Section 3 examines the counter-emergence of a feminist protest politics that has abandoned liberal abortion law in a democratic remaking of society and state. Today, in abortion lawmaking through democratized institutions and in the unmaking of abortion law through direct action, feminist movements are reclaiming comparative abortion law and its politics.

Polarization, Populism, and the Crisis of American Democracy

Bertrall L. Ross

American 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.

Who Benefits from Mass Incarceration? A Stratification Economics Approach to the “Collateral Consequences” of Punishment

Tasseli McKay, and William A. “Sandy” Darity

A 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.

Neo-Institutional Analyses of Criminal Legal Organizations and Policies

Ashley T. Rubin, Paige E. Vaughn, and Danielle S. Rudes

Since emerging in the late 1970s and early 1980s, neo-institutional theory has been a popular framework for understanding law, legal institutions, and policies on the books and in action. Neo-institutional theory has been particularly useful for explaining diverse criminal justice phenomena, from changes in penal law and policy statements to on-the-ground practices across police departments, courts, carceral facilities, and community corrections. This review describes how scholars of the criminal legal system have used neo-institutional theory and where there is room for further utilization. Additionally, it discusses how and why neo-institutional theory is particularly useful for sociolegal scholars, and not only those studying criminal legal organizations and policies.

Challenges to the Contemporary Death Penalty in the United States

Paul Kaplan

This 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.

Reconsidering Crime and Technology: What Is This Thing We Call Cybercrime?

Jonathan Lusthaus

Cybercrime is not a solely technical subject but one that involves human offenders who are susceptible to social scientific study. Yet, despite calls for cybercrime research to be mainstreamed, the topic remains a niche area within legal studies and the social sciences. Drawing on the most significant findings over recent years, this review aims to make the subject more accessible to a wide range of scholars by softening some of the perceived boundaries between conceptions of cybercrime and conventional crime. It examines these key themes in the literature: definitions and categories of cybercrime, cybercrime marketplaces, the governance of cybercrime, the importance of “place” within the world of cybercrime, cybercriminal networks, a discussion of what is new or old about cybercrime, and how we should define the concept going forward. The empirical literature on these themes suggests a simple definition is most appropriate: Cybercrime is crime that uses digital technology in a significant way.

New Technologies in Search and Seizure

Eve M. Brank, Jennifer L. Groscup, and Kayla R. Sircy

The 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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《中国社会学学刊》（The Journal of Chinese Sociology）于2014年10月由中国社会科学院社会学研究所创办。作为中国大陆第一本英文社会学学术期刊，JCS致力于为中国社会学者与国外同行的学术交流和合作打造国际一流的学术平台。JCS由全球最大科技期刊出版集团施普林格·自然(Springer Nature)出版发行，由国内外顶尖社会学家组成强大编委会队伍，采用双向匿名评审方式和“开放获取”(open access)出版模式。JCS已于2021年5月被ESCI收录。2022年，JCS的CiteScore分值为2.0（Q2），在社科类别的262种期刊中排名第94位，位列同类期刊前36%。2023年，JCS在科睿唯安发布的2023年度《期刊引证报告》（JCR）中首次获得影响因子并达到1.5（Q3）。