The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.

Using a unique data set comprised of original research of both the corporate Web sites of the Big Four—PwC, Deloitte, KPMG, and EY—and their affiliated law firms, as well as archival material from the legal and accountancy press, this article documents the rise and transformation of the Big Four legal service lines since the enactment of the Sarbanes Oxley Act of 2002. Moreover, it demonstrates that there are good reasons to believe that these sophisticated players will be even more successful in penetrating the corporate legal services market in the decades to come, as that market increasingly matures in a direction that favors the integration of law into a wider category of business solutions that these globally integrated multidisciplinary practices now champion. We conclude with some preliminary observations about the implications of the reemergence of the Big Four legal networks for the legal profession.

This article examines whether and how international human rights law transforms the grassroots mobilization strategies of labor activists. Drawing on original ethnographic research on the activism of blacklisted workers in the United Kingdom, I show that there is a two-tier process through which human rights norms are interpreted and mobilized, first by legal advocacy groups, then by grassroots activists. Contrary to skeptics who argue that human rights have a “mainstreaming” and “individualizing” effect on labor movements, this research shows that by strategically embedding human rights language in their campaigns, blacklisted workers leveraged media attention and facilitated changes in trade union rights discourse. Findings suggest that the strategic mobilization of human rights differs from other mobilization efforts, since labor activists use human rights language primarily to find a sympathetic audience within a political environment in which trade unions are viewed as a regressive force in the economy.

This Essay responds to thoughtful analyses from Ashley Rubin, Johann Koehler, Geoff Ward, and Fergus McNeill on our book Breaking the Pendulum: The Long Struggle Over Criminal Justice (2017). In particular, we revisit our claim that consensus within the penal field is illusory. Drawing inspiration from our interlocutors, we argue that while recognized actors constantly struggle over the character and scope of criminal justice, they agree (at least implicitly) that certain positions are “unthinkable” and certain actors must remain outside the field. This “conflictual consensus” limits radical transformations of criminal justice. Our revised perspective encourages scholars to analyze how marginal positions and actors become part of the field, as well as the effects they produce while trying to reshape its boundaries. We conclude by sketching out how scholars have extended and revised the agonistic perspective we advance in Breaking the Pendulum and where we might turn next.

The catastrophic failure of the prison system in the United States has prompted a shift in criminal punishment system rhetoric and policy toward reform. Numerous programs and initiatives facilitate reentry for the hundreds of thousands of individuals coming out of prison every year, but these and other reforms remain problematic. They do little to improve the social and material conditions of those attempting to reintegrate. By failing to question the social, historical, political, and economic conditions of criminal system problems, they reproduce the oppressive social conditions that they are intended to address. This article diagnoses several major issues with conventional reform efforts in rehabilitation and reentry scholarship and praxis and argues that what is needed is not further attempts to improve these reforms but, rather, an approach that considers these problems through an abolitionist lens. An abolitionist frame, I suggest, is particularly useful in articulating suggestions for change. I apply an abolitionist analysis to an examination of reentry, illustrating how abolitionism helps to diagnose problematic reentry reforms and how an abolitionist approach to reentry can address these issues in a more effective, profound, and enduring way.

Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for deemphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned to the advantage of a social movement because of its commitment to longer-term political objectives rather than short-term victories. The special role of professions in general, and the legal profession in particular, in such litigation combines with class-oriented social movements to produce a political/legal pattern that is neither traditionally harmonious nor a conflict “difficult to contain.”

An important debate among court observers is whether plea bargaining undermines the ideals of justice. This article presents findings that may rec-oncile some inconsistent research conclusions. It describes how, prior to plea bargaining, one group of court-appointed defense attorneys gauges the strength of evidence through a tacit, taken-for-granted process that emulates trial proceedings: based on their understanding of evidence in the legal community, defenders imagine a courtroom dialogue wherein the prosecution and defense take turns presenting their cases in front of a judge and jury. At issue throughout the dialogue is whether or to what extent information is suffident, legal, and persuasive enough to convict the defendant. Because the process is part of the defenders' ongoing and unspoken daily routines, it may elude unsuspecting investigators. Ironically, this means not only that some analysts may inappropriately conclude that legal ideals play no role in plea bargaining but also that others may ingenuously assume that such behavior is more ethical than it actually is.

Among low‐income homebuyers, a contract for deed (CFD) has been a widely used but risky and informal mechanism for purchasing a home or lot. This article examines a series of major consumer protections adopted by the Texas Legislature from 1995 to 2005 and whether this legislation shaped the behavior of sellers who historically relied on CFDs in Texas colonias. Tracking changes in the use of CFDs between 1990 and 2010, we show that developers responded to the legislative reforms by shifting away from CFDs and into other forms of seller financing. At the same time, developers have adopted a series of workarounds to the legislation (presumably legal), leaving low‐income buyers vulnerable to rapid repossession by the developer. In contrast, the impact of the legislation on low‐income residents selling their homes has been minimal. These consumer‐to‐consumer transactions remain highly informal, with ongoing reliance on the now illegal, unrecorded CFD.

The implementation of criminal law involves formal law enforcement, education, and public outreach aimed at preventing criminal activity and providing services for victims. Historically, quantitative research on global trends has focused on a single policy dimension, potentially masking the unique factors that affect the diffusion of each policy dimension independently. Using an ordered‐probit model to analyze new human trafficking policy data on national prosecution, prevention, and victim‐protection efforts, we find that global ties and domestic interest groups matter more where international law is less defined. Although prosecution, mandated by the Trafficking Protocol, was relatively impervious to global ties and domestic interest groups, both trafficking prevention and victim protection were associated with these factors. Our findings also suggest that fear of repercussions is not a major driver of state actions to combat trafficking—neither ratification of the protocol nor levels of US aid were associated with greater implementation of antitrafficking measures.

Against the historical backdrop of the codification debate in nineteenth century Germany, this article traces the reassertion of “legal science” as an autonomous source of European legal integration in current legal and political discourse about the harmonization of European private law. The article argues that a grasp of widely shared ideas about the role and function of legal science and legal scientists is vital both toward an understanding of the extraordinary impact of the academic project of a European civil code on legal and political discourse in the Union in particular, and toward furthering the theory of legal fields in general.

How do youth experience and understand the law? How is law regarded and communicated? Youth's legal subjectivity has received limited attention in the sociological and legal literatures, especially as it relates to crime‐reporting behaviors. Drawing on legal socialization theory and procedural justice, I show how youth, as legal subjects, described the law and how those descriptions differed by social location. Using a diverse sample, I examined narratives produced during forensic interviews following reports of sexual victimization. Rather than passive victims, youth act on, and within, institutions. In their own words, youth describe experiences with state systems that animated their understandings of law and criminal justice processes. They reveal how shared frameworks of understanding affected legal subjectivity, shaped their evaluations of the law, and influenced participation in state systems so that perhaps those most in need of legal remedy are those most unlikely to seek it.

One part of building a new constitution after wars, revolutions, civil wars, or dramatic regime changes is to draw a cultural boundary in time, declaring various aspects of the old regime illegitimate and various legalities and constitutional principles of the new regime legitimate. One part of that process, in turn, is to decide how the new regime should treat the guilt of individuals for terror, collaboration, betrayal of information to the regime, and the like. This essay argues that such lustration processes should be a very minor part of the definition of the meaning of the pat, and even less of a part of building social supports under the new constitution. It also assesses the contributions on lustration in this issue in light of this view of what place lustration should play in the construction of democratic constitutions after authoritarian regimes.

What role does the death penalty play in contexts of protracted political violence? What does it symbolize for its opponents and proponents in such contexts? Can it survive as a potent topic of political life even without actual executions? Since 1967, the death penalty has been a lawful sanction in Israel's military courts, which have jurisdiction over Palestinians in the Occupied Territories. Though it has never been carried out, it has been intensely debated throughout this period and the topic has retained major political, cultural, and judicial significance. I argue that both sides in these debates use the topic mostly symbolically, rather than as an issue of public policy. For opponents, refraining from using the death penalty has become a symbol of restraint, used in self-legitimation. For proponents, death penalty advocacy serves as what I term a penal fantasy, an outlet for frustration, symbolizing defiance against the image of restraint.

This article describes and compares English and Burmese approaches to the legal establishment of religion. Between 1886 and 1942 the two approaches crossbred to produce a body of case law known as Buddhist ecclesiastical law. However, after 1920 the colonial government radically changed its policy toward Buddhism. The repercussions of this change continue to affect Burma.

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.

Mental health courts (MHCs) offer community-based treatment in lieu of criminal prosecution for chronic offenders with psychiatric disabilities, and MHC judges enjoy expanded powers to achieve the court's objectives. Because scholars know little about how judges transition into a new occupational role in the problem-solving courtroom, this ethnographic study of four MHCs in the United States focuses on how judges learn to orchestrate their responses to treatment noncompliance in this novel court setting. The goal of this article is to examine the professionalization of MHC judges and the emergent craft of therapeutic adjudication. To achieve this goal, I investigate judicial strategies for motivating, questioning, and defending participants accused of wrongdoing. I conclude that the art and practice of problem-solving justice requires judges to rise to the larger institutional challenges embedded in the alternative courtroom, a process I call the politics of benchcraft.

A long-standing scholarly tradition regards professions, in general, and ethics rules, in particular, as “projects” of market control. It is no surprise, critics charge, that in the latest assault on the monopoly of the American legal profession–waged by multidisciplinary professional service firms–lawyers are hiding behind their ethics rules to protect their turf.

In this article, I report on an extensive empirical study of conflict of interest in private legal practice and look comparatively at other fiduciaries, among them, accountants, psychotherapists, physicians, journalists, and academics. I investigate the role of ethics rules that seek to insure fiduciary loyalty in structuring the delivery of services. How does social and institutional change, roiling the fiduciary world, threaten disinterestedness and loyalty and how, if at all, do fiduciaries respond? How is the regulation of conflict of interest accomplished? Where are the conflicts rules most likely to be honored or ignored? What incentive structures encourage compliance? What are the costs and unexpected consequences of compliance? What is foregone? And is it all worth it?

In what might come as a surprise to many, I find that the legal profession takes conflict of interest more seriously than many of the rest of us. As the title implies, legal practitioners largely travel alone, bushwhacking through the underbrush snarling the ethical high road. As critical scholarship predicted, lawyers do enjoy a monopoly at the end of the road. But this monopoly is achieved, not by restraint of trade or some other artifice or stratagem of market control, but by lack of competition. It seems that no one else is trudging alongside the lawyers. Lawyers are not necessarily more ethical than the others; they just behave more ethically–at least with respect to conflict of interest. The question is why. And what difference does it make?

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem-solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem-solving techniques can be utilized in traditional courtrooms.

The Attorney General's Commission on Pornography was asked by the president of the United States to “review the available empirical evidence on the relationship between exposure to pornographic materials and antisocial behavior [and to explore] possible roles and initiatives that the Department of Justice and agencies of local, State, and federal government could pursue in controlling, consistent with constitutional guarantees, the production and distribution of pornography” (at 216). The Commission undertook this review during several public meetings held across the country in 1986 and, as a result of the review, concluded that there is a causal relationship between exposure to many forms of pornography and several harmful effects including increased levels of violence against women. The Commission called for stricter enforcement of existing obscenity laws and serious consideration of additional legal measures. These measures include amending the federal obscenity laws to prohibit the transmission of obscene material through the telephone and eliminating the “utterly without redeeming value” clause found in some state obscenity statutes. In all, the Commission made 92 recommendations involving changes in existing federal, state, and local obscenity laws. Without exception, the recommendations for legal changes call for greater restrictions on sexually explicit material and more stringent enforcement of current obscenity law.