This article provides a neoinstitutionalist account of how a transnational social movement (TSM) sets its agenda. A theoretical framework is presented to reveal how logics from the transnational and local organizational fields influence legal mobilization. To provide insight into how a TSM accommodates contradictory and competing logics within and between these fields, this article examines mobilization around a fact-finding commission, sometimes called a truth commission, to address the ongoing social and political divides in Bosnia and Herzegovina (BiH). The findings, based on fieldwork conducted between 2009 and 2011, are used to develop the theoretical concept of a quasi-judicial medium, a legal body that, initially, will appeal to a variety of actors, but may be unable to adequately address existing divides. The conclusions point to further directions in the study of transnational legal mobilization, particularly the conditions under which the ambiguity of a movement strategy helps meet and/or moderate movement goals.

This introduction to a symposium on Robert Gordon's classic article “Critical Legal Histories” (1984) suggests that the article should be read in the first instance as a response to the distinctive historical and jurisprudential currents of the 1980s, even as it also remains a work that continues to challenge legal historians working today, a generation later.

International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision-making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.

The migration policies of the former Soviet Union (or USSR) included a virtual abolition of emigration and immigration, an effective ban on private travel abroad, and pervasive bureaucratic controls on internal migration. This article outlines this Soviet package of migration controls and assesses its historical and international distinctiveness through comparison with a liberal state, the United States, and an authoritarian capitalist state, Apartheid South Africa. Soviet limitations on external migration were more restrictive than those of contemporary capitalist states, and Soviet regulation of internal migration was unusual in its direct bureaucratic supervision of the individual. However, Soviet policy did not aim at the suppression of internal migration, but at its complete regularization. The ultimate goal was “regime adherence”: the full integration of the citizen into the Soviet political order. In contrast to the USSR, migration in the contemporary world is marked by “irregularization”: policies that lead to the proliferation of insecure and unauthorized migration.

Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization and, more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this article reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus, and Sieder (2011); The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000, by Meierhenrich (2008); Judging Russia: Constitutional Court in Russian Politics 1990–2006, by Trochev (2008); and New Courts in Asia, edited by Harding and Nicholson (2010).

Under recent reforms, the UK government has eroded state funding for civil legal aid. Funding cuts affect asylum and immigration law as produced, practiced, and mediated in the course of interactions between case workers and their clients in legal-aid-funded Law Centers in South London. The article explores the contradictory character of one-on-one relationships between case workers and clients. Despite pressure to quantify their work in “value for money” terms, the empathy that often motivates case workers drives them to provide exceptional levels of aid to their clients in facing an arbitrary bureaucracy. Such personalized commitment may persuade applicants to accept the decisions of that bureaucracy, thus reinforcing a hegemonic understanding of the power of the law. The article, however, challenges the assumption that, in attempting to shape immigrant/refugees as model—albeit second-class—citizens, case worker/client interactions necessarily subscribe to the categories and assumptions that underpin UK immigration and asylum law.

For more than twenty-five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal-historical analysis of the resultant stress on the contingency and complexity of social life.

This article centers on Branded Woman v. Unknown, an unusual 1889 trial that gave birth to the “ordinarily accepted significance” of Burmese tattoos. What began as a snippet of gossip from a colonial village became a scandal involving the highest echelon of Britain's metropolis. I explain why this dynamic of escalation occurred and how colonial officials in Burma utilized a courtroom to transform tenuous fictions of tattooing into a seemingly coherent fact about Burma. My argument that this process—shaped through cues from a fragmented audience of peers (rather than a single audience of subordinates)—represents the production of an elite public transcript highlights how colonial scandals worked as eventful moments for an always precarious state to reconfigure its claim to power by prompting local agents to enact expressions of certainty. It further carries implications for scholarship on symbolic state power and the construction of legal facts and public knowledge.

In the second half of the nineteenth century, the Ottomans founded a new court system, the Nizamiye courts, as part of an empire-wide ambitious project of judicial and administrative reform, which involved legal transplantation from the French model. The institutional evolution of these courts was completed with elaborate legislation introduced in 1879. This article explores British consular and diplomatic accounts dispatched in the immediate aftermath of the 1879 reforms in an attempt to assess the value of these reports for understanding the passage of Ottoman law to modernity. Comparison of British accounts with relevant Ottoman sources and recent research reveals that British consuls and diplomats produced distorted representations of Ottoman judicial reform, exhibiting lack of faith in the effectiveness of these reforms. Misrepresentation resulted from ignorance about the nature of reformed Ottoman law, prejudice, and concerns about the effect of these reforms on the ability of British consuls to interfere with Ottoman court proceedings.

This article reexamines the question of how best to restrain executive power in a political and social context that seems to favor its dramatic expansion. Modern interventionist government amidst a dynamic social environment, where the executive faces a seemingly endless series of “crises” or “emergencies,” provides a heightened scope for executive discretion. At the same time, the US-style separation of powers, in which an independent president faces a potentially obstinate Congress, offers executives many incentives to exploit crises, real or otherwise. The works examined in this article confront, with varying degrees of success, the seemingly inexorable expansion of executive power within the US version of liberal democracy. We can only hope to deal with the many intellectual and political tasks posed by the symbiotic nexus between executive-centered and crisis-oriented government by confronting some tough questions about US constitutional design and the possibility of radical institutional reform. Unfortunately, even those scholars who provide plausible accounts of the US system's fragilities seem hesitant to do so.

US bias crime jurisprudence follows the discrimination model and ejects “hate” from scrutiny. It is suggestive of improvements that should be made to Canadian law insofar as it also better tracks the enactment of discrimination against difference occasioned in the everyday. Criminal law, however, remains weak at preventing crime. And where the law requires evidence of discrimination, it iterates the stereotypes and social backdrop of hate crime. But this view on law and culture underestimates how outgroups may produce countermeanings and influence the law. Turning to the more material basis of identity, neoconservatism has given the law a broad ambit whereby coercion as opposed to investment in human capacities is promoted as the means to social order. Where scholars argue that discursive collaboration with retributionist policy requires outgroups to pursue cultural revalorization, given the decreasing freedom under the contemporary authoritarian paradigm, I argue that they must also pursue distributional justice.

This article traces the impact of Robert Gordon's “Critical Legal Histories” on scholars writing at the intersection of law and history. While Gordon's central claim about the constitutive character of the law has come to serve as a working assumption in the field, the case he made for the intellectual history of doctrine as articulated by legal mandarins has proven less influential in the twenty-five years since the article was published. Instead, legal historians have focused their attention on the interaction between official and lay forms of law-making with a decided emphasis on popular legal consciousness. For precisely this reason, the time may be ripe for reconsideration of mandarin materials, not only for what they have to tell us about the dynamics of cultural change, but also as sources of insight into basic puzzles of the human condition that have tended across time to be expressed in and through legal forms.

This commentary explores Robert Gordon's “Critical Legal Histories” from the perspective of the discipline of history. It argues that we are still stalled at the intellectual juncture that Gordon described so well twenty-five years ago because functionalism and the resulting problems that Gordon addresses in the area of sociolegal studies also pervade the discipline of history. The results reinforce the divide between sociolegal studies and other kinds of historical studies that tend to inhibit the conceptual transformation that Gordon advocates and to marginalize legal studies within the discipline of history.

What can judicial architecture tell us about how courts function? In this essay, I examine Legal Architecture: Justice, Due Process, and the Place of Law (2011) by Linda Mulcahy and Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (2011) by Judith Resnik and Dennis Curtis. I argue that both books develop an understanding of judicial architecture as a socially contingent form of communication. I relate this expressive theory of architecture to older arguments about design and construction articulated by poet and novelist Victor Hugo and architect Frank Lloyd Wright. I also briefly explore the connections between this developing “jurisprudence of what's real” and more conventional forms of law-and-courts scholarship.

Yves Dezalay and Bryant Garth's three studies—Dealing in Virtue (1996), The Internationalization of Palace Wars (2002), Asian Legal Revivals (2010)—trace the globalization of law through “palace wars” among elites for positions in the “fields of state power.” They conclude that globalization occurs through links among elites engaged in their domestic palace wars, which independently establish the symbolic power of law in each state. The article argues that while Dezalay and Garth provide an invaluable new starting point for further research, they do not adequately consider an emerging field of research documenting alternative pathways of legal development pursued by local activists inside and outside the new states of the Global South.

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high-level official law to everyday local law are distinct issues. CLH is mostly moot today, since social-legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation-states.

This essay develops an understated argument in Stuart Scheingold's The Political Novel (2010), namely, how narratives of estrangement serve to empower re-imagination without reinforcing the false promises of modernism. I argue that Scheingold's earlier work in The Politics of Rights and on cause lawyering provides guidance for understanding the character of empowerment to which Scheingold points in his latest work. In addition, I examine three film narratives that treat the “mournful legacy of the twentieth century”—Pan's Labyrinth, Life Is Beautiful, and Everything Is Illuminated. Emergent in these narratives, I suggest, is a way that storytellers point to empowerment by highlighting the largely overwhelming constraints that limit the agency promised by modernism and the strategic, though contingent, choices characters make to confront and cope with their own estrangement.