In the wake of rape law reforms, lack of sexual consent emerged as a key element that defined sexual contact as criminal. Its presence modified the requirement of force or threat of violence, and it gained traction in campaigns to eradicate sexual assault. Little is known, however, about how prosecutors assess consent. In this article, I use the case of statutory rape to better understand the legal construction of sexual consent. By focusing on an age-based class of individuals who are sexually mature but still under the age of consent, I show how legal actors identify sexual victimization among youth. Drawing on interviews with forty-three prosecutors, I analyze prosecutorial decision making during the investigation, charging, and trial phases. I find that sexual consent is not simply a dichotomous legal category but rather a sociological process. Prosecutors define sexual victimization based on informal ideas about normative adolescent sexuality, reproducing social hierarchies based on age, gender, and sexual identity.

Data from a case study of piecemeal zoning change suggest that the decisions of citizen zoning boards of appeal are neither lawless nor ineffective. The bulk of requests that come before them are for minor dimension or use variances and are typically allowed unless there is local opposition. The proportion of changes granted varies with the degree of clash between a proposed use or structure and the preexisting local land use-the “character of the community” (particularly in single-family residential areas). Expressions of opinion (positive or negative) by current neighbors and other community members are given heavy weight in zoning decisions.

Despite criticism of zoning boards as defective and illegitimate legal institutions and calls for their abolition, they have remained popular and extremely resistant to change. This is because zoning boards have evolved beyond their explicit rule enforcement functions to also play important dispute-settling and community maintenance functions in the contemporary urban setting. These functions of zoning can only be understood in terms of a participatory model of legal process where legal rules serve to identify situations and trigger sociopolitical processes as much as they serve as substantive norms to be enforced.

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.

This article examines why deportation and imprisonment for immigration offenses rose under presidential administrations that claimed to favor more “humane” approaches to immigration enforcement. I examine the politics of enforcement discretion on the US-Mexico border during the administrations of Bill Clinton (1993–2001) and Barack Obama (2009–17). Drawing on historical and ethnographic research, I argue that the Clinton and Obama administrations took a punitive humanitarian approach to enforcement discretion aimed at punishing “illegal immigration” at the border while protecting “legal immigrants” with long-standing ties to the United States from deportation. The findings show that such an approach extended crime control to US-Mexico border enforcement. This blend of humanitarian and punitive approaches systematized criminal enforcement priorities and expanded the discretion of border agents to deport and imprison. Just as other scholars have shown how liberal reform contributed to the rise of the carceral state, this article shows how immigration policies that blended humanitarianism and security punished the very people such policies were designed to protect.

This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power.

Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I call mimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.

Shari‘a (commonly translated as Islamic law) is at the epicenter of anti-Muslim discourses in the United States. How do Muslims in the United States understand and experience shari‘a in the context of virulent attacks on it and on Islam and Muslims more generally? This article explores the meanings Californian Muslims give to and the intentions they derive from shari‘a when dominant discourses represent shari‘a as a cause for concern in American life. Drawing from fieldwork and interviews with Muslims across California, as well as scholarship on legal consciousness and lived religion, we document three interrelated stages of shari‘a consciousness: perceiving shari‘a and discriminatory depictions of it; educating oneself about shari‘a’s social and political relevance; and forming an intention for social action. Documenting these interrelated stages and theorizing the relationship between legal consciousness, religion, and inequality, this article reveals how religious identity formation is a significant precursor of legal mobilization and how nonstate normative orders provide interpretive frames for understanding human rights and social justice. Ultimately, legal consciousness may stem from sacred sensibilities and the desire to be a more ethical servant of God and not merely to be a more ethical subject of the state.

For as long as there have been motion pictures, scenes of execution have appeared in American film. This article examines those scenes over the course of the twentieth century and suggests that spectatorship, and what it means to watch, is central to scenes of execution in film. We are interested less in the intentions and politics of a filmmaker and more in what those scenes offer viewers. We argue that three central motifs of spectatorship characterized death penalty films during the more than 100‐year period that we studied. First, viewers are often positioned as members of an audience and many scenes of execution are presented in a highly theatrical fashion and, as a result, the line between spectatorship and witnessing is blurred. Second, in many scenes of execution viewers are brought “backstage” and provided chilling, intimate views of the machinery of death, privileged views unavailable outside of film. The third motif shifts the positioning of the viewer such that we stand in the shoes of those who are to be executed. We conclude by asking whether and how scenes of execution in American film provoke in viewers an awareness of the political responsibility inherent in their identities as democratic citizens in a killing state.

Why is the police role so broad in the United States today? Carceral state scholars have investigated how and why policymakers have treated so many social problems as policing problems, but they have not yet recognized the degree to which the call-for-service system has marginalized political control over police strategy. This Article traces the historical sources of this arrangement through extensive archival research into its evolution. We find that over the course of the twentieth century, the rise of new communications technologies gradually shifted the power to decide which problems are proper subjects of police attention to private individuals, eventually channeling their demands through centralized call centers that had been stripped of the authority and contextual knowledge needed to govern them in a meaningful way. That process fundamentally altered the character of public oversight over policing, elevating a distinctive set of individual interests as largely unchallenged determinants of the kinds of situations that are policeable. By illustrating how sociotechnical change unintentionally reallocated the authority to define the scope of an important institution’s mandate, this case sheds new light on the factors that shape the police role and the role the public plays in defining it.

Based on fourteen months of ethnographic research on the central money exchange bazaar in Kabul, Afghanistan—Sarai Shahzada—this article examines the micro-dynamics of legal change within a close-knit community in a fragile setting. For most of its history, the bazaar has been governed by informal legal norms. New state-building measures after 2001 led to increased efforts by the state to regulate the bazaar, causing money exchangers to initiate internal transformations to protect their autonomy. While scholarship generally argues that state coercion substitutes for private legal norms, this study shows the centrality of the state in consolidating the bazaar legal system. Exchangers have cast their non-state legal system in the image of the state by formalizing new operating rules that have introduced a management structure and dispute resolution forum. New state licenses have also helped to safeguard the boundaries of the bazaar. This article contributes to private governance and legal pluralism scholarship by revealing that a private community, even in a fragile state, may be capable of maintaining an autonomous non-state legal system not in spite of, but rather by depending on, the state.

Since the early 2000s, many of the left groups that spurred the alt-globalization movement have embraced directly democratic organizing and the creation of ethical relationships and subjectivities far more than they have pursued projects to reform legal and political institutions. These practices are often described as prefigurative because people are working to build alternative possible futures in the here-and-now outside of dominant statist and capitalist rationalities. In this essay, we ask if prefiguration can also involve imagining legal forms anew. Drawing on Amelia Thorpe, Owning the Street: The Everyday Life of Property (2020), we discuss contemporary efforts to use the language, form, and legitimacy of law to imagine it otherwise, efforts that occur through various kinds of direct actions rather than primarily through appeals to courts, legislators, or other state officials. In so doing, we point to an emergent field of critical and sociolegal scholarship that we call prefigurative legality.

In this article, we examine how courts make decisions in religious exemption cases that implicate LGBT rights in a wide range of contexts including education, employment, and medical care. Through an in-depth qualitative analysis of 50 federal cases decided between 1990 and 2020, we demonstrate a shift in how anti-LGBT sentiment is expressed by parties bringing religion-based claims—from a broad condemnation of LGBT identity to a narrow condemnation of same-sex marriage—and find that courts are more likely to rule in favor of the latter. We show how courts construct competing understandings of harm and religious freedom depending on the context of the case and whether the setting is deemed public or private. Our analyses shed light on the shifting and competing meanings about religion, sexuality, and public life in the United States.

Employee pension and welfare plans first appeared in the United States well before the turn of the century, but rapid growth began only in the 1940s, when wartime wage controls, coupled with favorable tax rules, encouraged fringe benefits as a substitute for wage increases. The plans have attained awe-inspiring dimensions since World War II: The Department of Labor estimates 750,000 pension plans and 1,050,000 welfare plans, covering about 35 million persons, with total assets of the pension plans alone growing from $2.4 billion in 1940 to more than $150 billion in 1973. In 1971 the 50,000 largest welfare plans, those with 100 or more participants, paid benefits in excess of $15 billion. But legal service plans, among the most recent of welfare plans and the subject of this study, are still experimental and small; they involve no great amount of resources.

While the legal profession's efforts to suppress the practice of law by non-lawyers go back to colonial times, the modern unauthorized practice movement began in the late 1800s and early 1900s. Its greatest success, however, took place during the 40 years from 1920 to 1960. Recent years have seen the reversal of some of the prior successes in the field, and current challenges to unauthorized practice restrictions raise serious questions about their present validity. Do the benefits to the public from the enforcement of rules against the unauthorized practice of law justify continuation of the effort?

This article explores the settling and unsettling of legal concepts in relation to refugee-status determination. To gain admission to the United States, asylum seekers are required to demonstrate a well-founded fear of persecution on the basis of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Accordingly, many political asylum claims turn on the interpretation of “particular social group.” This article examines case law disputes in the federal courts of appeals over the meaning of that phrase and describes how statutory interpretation by judges has contributed to the persistence of such disputes over several decades since the passage of the 1980 Refugee Act. My analysis reveals the tensions between different forms of rationality at play in judicial statutory interpretation and applies the concept of legal settling to a new empirical domain.