Every other day, books and articles are published that examine the withering of democracy across multiple national contexts, perhaps best summarized by Steven Levitsky and Daniel Zibblat’s How Democracies Die. The law has not been ignored in this burgeoning literature. Telling examples are the studies on autocratic legalism by Javier Corrales and Kim Lane Scheppele; Tom Ginsburg and Aziz Huq’s book How to Save a Constitutional Democracy; a recent review essay by Michael McCann and Filiz Kahraman on the “interdependence of liberal and illiberal legal orders … in the United States”; and two forthcoming works from the Project on Autocratic Legalism: a special issue in the Verfassung und Recht in Übersee/World Comparative Law journal and a book on Brazil edited by Oscar Vilhena Vieira and colleagues. In this review essay, I focus on three critical issues arising from these and other sources. First, they show that a backlash against liberal democracies is happening in both the global South and the global North. Second, they show that law is no longer thought of as an intrinsic bulwark against assaults on liberal democracy—on the contrary, rising autocrats, many of whom are trained lawyers, often use the law as a tool to consolidate power, sideline minorities and political adversaries, and rule unconstrained. Finally, while earlier analyses of this phenomenon have tended to emphasize legislative change that reconfigured governance at its highest levels (the Presidency or Prime Minister’s Office, Congress, and High Courts), new studies are revealing––and are helping constitute––an empirically broader field of inquiry.

The object of criminal punishment (what exactly an offender is punished for) is a central construct of criminal law theory, but it remains hard to identify in many contexts. This is especially relevant in the case of proxy crimes—offenses that criminalize behavior that does not seem wrongful per se but stands in for some other hard-to-prove wrongdoing. What is the object of punishment imposed on a person convicted of a proxy crime? Is it the criminalized conduct itself or the primary wrongdoing (which could not have been proven)? Our experimental study demonstrates that people tend to find a defendant guilty of a proxy crime most frequently when there is an indication of the primary wrongdoing as opposed to being charged with a primary offense in the context of the same evidence and being charged with a proxy in the absence of suspicion of the primary offense. However, we find evidence of discrepancies between laypeople and legal experts: the former seeing the object of punishment in a rather naively legalistic way, and the latter adhering to an instrumental vision. This challenges theories that postulate that the task of criminal law is to send messages that are understandable to both legal officials and citizens.

In the United States, legal representation increases the likelihood that undocumented immigrants win legal claims. Yet private attorneys are expensive, and free and low-cost attorneys are scarce. How do legal services providers make representation decisions when demand outweighs capacity? Drawing on interviews with attorneys in thirty-eight nonprofit organizations who represent affirmative, humanitarian status seekers, this article describes how lawyers face pressure to represent winnable cases. Attorneys assess case winnability in two ways. First, attorneys aim to maximize clients’ cultural legibility as “deserving immigrant victims.” Simultaneously, attorneys aim to minimize case representation burden by considering the time, resources, and expertise needed to represent each claim. Attorneys assess both cultural legibility and case burden at every stage of the representation process (client selection, attorney assignment, relief pursual, and application production). In doing so, attorneys try to represent clients as the most deserving of status and in the most efficient way. These findings extend past research on attorneys’ selection processes that occur well before a client’s application is filed with the federal immigration bureaucracy. By highlighting how attorneys’ constrained decisions exacerbate legal stratification, these findings complicate calls for an immigrant legal inclusion strategy that depends on the labor of attorneys rather than on changes to the state’s demands on immigrants themselves.

In two recent books, Linda McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006), and James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families (2002), lay out the respective positions in the opposing family values that divide the United States. Wilson maintains that family well-being rests on the foundation of a strong cultural commitment to marriage, while McClain articulates liberal feminist values that require equality within and among families. This article maintains that delayed childbearing, not marriage or equality, holds the key to the new middle-class morality and discusses the prospects for family law pragmatism in an era of values polarization.

With the enactment of the Clean Air Act amendments in 1970, the federal government, essentially an interested bystander as recently as 1960, became the dominant presence in air pollution control. The current statute provides for federal research, financial support of state control programs, and interstate compacts (secs. 101-106). It retains, in vestigial form, a cumbersome conference procedure (sec. 115) copied from the earlier water-pollution statute and never much used in air pollution. irect federal regulatory authority was substantially increased by the 1970 amendments: the federal Environmental Protection Agency (EPA) may now adopt emission standards not only for new vehicles (sec. 202) but also for all aircraft (sec. 231), for new stationary sources of any type that “may contribute significantly to air pollution” (sec. 111), and for any source of a “hazardous” air pollutant, that is, one that “may cause, or contribute to, an increase in mortality or … in serious irreversible, or incapacitating reversible, illness” (sec. 1 12); it may also regulate the contents of motor-vehicle fuels (sec. 211). An emergency provision authorizes the federal agency, absent adequate state or local action, to sue to enjoin any emissions contributing to “an imminent and substantial endangerment to the health of persons” (sec. 303). Yet everyday control of most existing stationary sources remains subject to an awkward joint federal-state system of air-quality standards. That system is the subject of the present article.

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.

This paper examines the paradoxical and problematic position of rights discourses in lesbian, gay, bisexual, and transgender (LGBT) parents' custody and adoption cases. In it, I analyze the ways in which different types of rights are framed by the litigants and, alternatively, by the judges, as well as how the same constitutional rights (e.g., the right to privacy) are often deployed both in defense of and in opposition to gay /lesbian parents. An in-depth analysis of judicial decisions over a 50-year period and interviews with key family law players reveal the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context. Consistent throughout this analysis are the problematic intersection of the collective and the individual in rights-based claims, and evidence of the distinct nature of LGBT rights claims as revolutionary in both their bases and their implications. The analysis confirms in some ways, but also contradicts and complicates many assertions of the “rights critique” of the past two decades. It also suggests a more complex and less dichotomous relationship between rights, status, and contract.

The implementation and enforcement of civil rights laws in the aftermath of the mid-twentieth-century rights revolution has been a prominent concern for a multidisciplinary group of scholars. This article reviews a recent literature that is devoted to better understanding the dynamics of judicial authority and enforcement power and, in particular, how courts are frequently empowered to enforce laws through complex interactions with an array of public and private actors. The article emphasizes new books by Charles Epp and Sean Farhang, which each examine different features of this enforcement process. In The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), Farhang explores the frequency with which Congress has chosen to enforce its civil rights statutes through incentivizing private litigation. In Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (2010), Epp examines how civil rights are enforced and transformed through the relationship between administrators, activists, and lawmakers within bureaucratic organizations. Together, these books expand our understanding of the politics and processes of implementing rights in practice and, more broadly, challenge and enrich our perspective on the effectiveness of the American state in enforcing rights. The often complex series of self-conscious legislative, judicial, and administrative choices and interactions necessary in order to deliver rights protections requires that we view policy enforcement from a broader institutional and political perspective. From that perspective, we can see that effective implementation is far from automatic.

This article brings the state into constitutional theory by presenting a theory of the development of the American state from the late 19th century to the present. The focus of the theory is the ability of the national state to exercise sovereignty or public authority over civil society. The main thesis is that the Constitution did not establish a government with a level of public authority adequate to the requirements of a modem democratic state. The result was a mismatch between the demands of civil society and the competence of state institutions, causing a reorganization of the political institutions of civil society in the early 20th century and a crisis of public authority in the 1960s. The United States continues to experience the consequences of an imbalance between the state institutions established by an 18th-century constitution and 20th-century democratic politics.