During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.

We start this special issue with two perspectives. First, that the sociological study of crime and law often intersects with the study of inequality, power, the state, and life chances. Second, that the study of crime and law are deeply interconnected—institutionally, politically, and culturally. Legal institutions build on normative ideas, organizations, careers, and power to govern, to criminalize, and to punish (and, conversely, to ignore or absolve), and everyday understandings of crime are deeply tied to cultural understandings of legality, perceptions of justice and injustice, and hopes for everyday life. Law and crime are thus dynamically tied to social aspirations, fears, and divisions, and are political and social contests over what unites and what divides societies.

Among law and society fields, legal anthropology has experienced markedly high highs and low lows. Its parent disciplines, law and anthropology, have fluctuated from intense and productive engagement with one another to mutual disregard for each other’s ways of knowing. Most commentary on the trajectory of this interdisciplinary relationship has bemoaned anthropology’s (ir)relevance to legal scholarship, but this introduction and the symposium essays that follow invert the usual narrative by asking how—and why—formal law might matter to anthropology. The symposium is part of a dual special issue that grows out of a multi-year conversation between legal anthropologists representing varied institutional and intellectual backgrounds. Drawing on that conversation and on the essays it has produced, this introduction argues that anthropologists would do well to abandon their prepositional attitude to formal law and, instead, to build on the strengths of anthropological analysis by “cultivating attentiveness” to things legal.

In eleven countries, same-sex sexual intimacy is punishable by death. Applying a legal pluralistic framework, we argue that “state-enabled killing” of same-sex-attracted people occurs in at least twenty-three countries. State-enabled killings range from extrajudicial and quasi-judicial killings, where state actors carry out the killing, through instances where the state retrospectively authorizes, through bias or lawful excuses to homicide, the killing of same-sex-attracted people by private actors, to cases where the state permits or endorses forms of so-called “conversion therapy” that can lead to death. We contend that a narrow focus on the death penalty as the only genuine form of state-enabled killing of same-sex-attracted people is analytically unwarranted and strategically dubious in terms of law reform advocacy. Critical legal pluralism allows us to pursue the practical and normative implications of hypothesizing a functional equivalence between the death penalty and these other forms of state-enabled killing.

This article examines data collected from users of the German Federal Ombudsman Scheme (GFOS). The data was collected as part of a research project to understand how the GFOS operates in practice and how its procedures and outcomes are accepted by its users. We begin from the premise that experience of procedural justice during this alternative dispute resolution (ADR) process will build institutional legitimacy, and the article makes three contributions to the literature on procedural justice. First, we extend evidence of the link between procedural justice and legitimacy to a novel institutional context that is different in many ways to the criminal justice focus of much of the extant literature. Second, we consider the motivations of service users to engage with ADR as potential moderators of that link. Third, we analyze the relationship between procedural justice, subjective outcomes, and the actual outcomes provided to service users. Overall, we conclude that the link between procedural justice and legitimacy can be identified among those with very different motivations for using the GFOS.

While much is written about racialization of street criminals in the American media, racial dimensions of the media framing of white-collar crime remain underexplored. To address this issue, we analyze the coverage of bribery, electoral fraud, tax evasion, and insider trading in five national newspapers between 1950 and 2010. Drawing on John Hagan’s (2012) work, we trace the racialization of white-collar crime in the press back to Richard Nixon’s presidency and the beginnings of the War on Drugs. We also find that race is a significant predictor of offenders’ individualization, or the length of description accorded to them by writers. We argue that by individualizing black offenders significantly more than white perpetrators, reporters connote their oddity in the context of white-collar criminality and contribute to their collective framing as an exception. Finally, we find that black perpetrators receive significantly more positive coverage than white offenders, which serves to further underscore their distinctiveness from stereotypical black criminals and their similarity to nonthreatening (white) Americans. These findings support Hagan’s (2012) argument that racialization of street crime is mirrored by the collective framing of elite economic crime as white and, by extension, a nonthreatening side effect of American capitalism.

Exploring what it means to take formal law as an ethnographic object—a social phenomenon that both reflects and affects the society that produced it—this article analyzes the legal doctrine governing the judicial review of agency action. This doctrine is split into two streams: one evaluates agency interpretations of law, the other, agency policy decisions. In choosing to use one or the other, courts thus implicitly categorize the agency action under review as either interpretation or implementation. As interviews with agency administrators underline, however, these categories do not map onto the structure of agency action. Neither do they reflect the qualities of legal language. Rather than reacting to the inherent realities of their object, these doctrines instantiate a language ideology that pits the saying of law against the doing of it. After a brief introduction to language ideologies, I show some linguistic and legal realities that this particular one erases, and trace its recursive ramification in other areas of legal thought. Obscuring the speech-act nature of law, the saying-versus-doing language ideology helps commentators paint a picture of ideal judges as neutral, passive interpreters who merely report on the inherent meaning of law, as opposed to less ideal others who implement policies that change it. I also consider what a new language ideology—one that recognizes that the meaning of legal language emerges in part through its effects in the world—might do.

Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, and belonging in the United States), and a third pertaining to their status as “impossible subjects” (stories rendering non-citizens “illegal,” categorically excludable, and contradictory to the law). Findings demonstrate that the courts’ prioritization of these three narratives disconnects detainees from their own socially organized experience and prevents them from fully engaging in the immigration court process. In closing, we discuss the potential implications of crimmigrating narratives for the US immigration legal system and non-citizen status.

For most of legal anthropology’s existence as a distinct subfield, ethnographers have studied the function of law rather than its form. With the proliferation of neoliberal technologies of governance, however, anthropologists are increasingly turning to law’s form. This article surveys the anthropology of legal form and its contribution to the study of transnational law and governance. In taking legal form as the object of ethnographic inquiry, legal anthropologists examine the material, sensory, and symbolic dimensions through which law is recognized. Such an approach analyzes how power operates not through law’s substantive meanings but, rather, through its aesthetic dimensions. Current anthropological scholarship has illuminated the diverse ways in which the technical and formal aesthetics of law operate to foreclose political contestation. I argue, however, that the aesthetics of legal form may also be mobilized to render power relations visible and open to challenge amidst proliferating forms of neoliberal governance. Drawing on ethnographic fieldwork within one arena of global governance—the UN Committee on World Food Security—I illustrate how activists draw on the aesthetics of rights to illuminate inequalities and politicize governance processes. In doing so, I suggest that greater engagement with Jacques Rancière’s political theory of aesthetics can deepen anthropological insights into the power of legal form in the context of transnational law and governance.

The law often lays down mandatory rules, from which the parties may deviate in favor of one party but not the other. Examples include the invalidation of high-liquidated damages and the unenforceability of excessive noncompete clauses in employment contracts. In these cases, the law may substitute the invalid term with a moderate arrangement, with a punitive arrangement that strongly favors the protected party, or with a minimally tolerable arrangement (MTA), which preserves the original term as much as is tolerable. This article revisits the choice between the various substitutes. Based on theoretical analysis and five new empirical studies (N = 2,089), it argues that the incidence of MTAs should be rather limited. It demonstrates that people find moderate substitute arrangements more attractive than the alternatives. It also points to two overlooked incentive effects of the substitute arrangement (in addition to its impact on the drafting of contracts). First, the applicable substitute strongly influences customers’ inclination to challenge excessive contract terms once a dispute arises. Second, when the invalidation of an excessive term is discretionary, the applicable substitute can affect decision makers’ inclination to invalidate excessive clauses in the first place.

In Who Are the Criminals?, John Hagan argues that legislators use “crisis framing” to influence how the general public thinks about crime. President Ronald Reagan used reports of a drug use epidemic fueled by organized crime as part of his crisis framing. In 1984, he signed the Comprehensive Crime Control Act (CCCA) as part of his “war on drugs.” The CCCA allowed law enforcement to use civil asset forfeiture (CAF) to keep or sell property that it suspected was connected to illegal activity. State legislators followed suit and passed their own CAF laws. Some critics argue that law enforcements’ use of CAF has disproportionately targeted minority populations. We draw on racial threat theory to examine connections between the size of minority populations and the use of CAF in California. Our analysis uses nineteen years of CAF cases filed with the California Attorney General’s Office. Consistent with racial threat theory, we find a positive association between the number of forfeitures in a jurisdiction and a logged measure of the percentage of Black residents, net of crime, and other jurisdiction attributes. Our results support concerns that law enforcement has incorporated CAF as a technique used disproportionately against some minority communities.

How to better police mental illness is an evergreen component of criminal justice reform agendas. The Los Angeles Police Department (LAPD) has, like many departments, adopted specialized strategies designed to improve these encounters by tasking officers with both care and control responsibilities. These hybridized policing strategies are illustrative of a larger trend of managing social marginality through institutions that increasingly destabilize the penal/welfare state binary. This article draws from fieldwork with the LAPD to analyze how patrol officers construct the category of “mental illness” and deploy hybridized strategies. The analysis focuses on the inflection points that shape how a subject is categorized and the call’s disposal to understand how policing from the “murky middle” of state governance unfolds on the ground. Findings show how officers strategically invoke the pressure of time and the power of place to construct this category and deploy specialized resources when resolving trouble case, or “5149 and a half,” calls. Here, hybridized strategies function to manage social marginality through a governance of problem solving that appears uninterested in doing either care or control. The article concludes by reflecting on the project of hybridizing care and control to police mental illness specifically and social marginality more broadly.

Using preliminary observations from three parallel projects that employ a range of methods (network and content analysis, surveys, focus groups, and interviews), this article traces the experience of navigating different kinds of identity as useful capital within the legal profession. Identity is not the first kind of non-economic capital to influence professional navigation, but it is distinct in that it is owned and deployed primarily by minority actors. Adding to scholarship that has located the extensions for identity as capital, three interrelated contributions follow from this research. First, it reveals the prevalence of a diffuse field of diversity consciousness where, regardless of outcome, there is a sense that diversity is useful capital. Second, despite being notionally useful, these multi-method sources reveal the ways in which navigating such capital is simultaneously complicated for both actors within visible (e.g. race and perceived gender) and invisible (e.g. some disability, genderfluidity, and religion) identity categories. The isomorphic diversity posturing by organizations fosters a system where being a minority is seen as an advantage, but inclusion feels like accommodation either because it demands certain portrayals of precarity or because it leaves individuals unsure of their worth beyond the expected performance of their identity. As a result, even though the new version of the ideal professional norm might valorize identity as capital, it continues to serve organizations rather than individuals. Finally, these data make the methodological case for the usefulness of the periphery as an analytical vantage point to assess systemic inequalities in legal profession research.

We investigate whether inherent differences between the majority opinions of US Supreme Court justices result in certain justices being systematically more influential compared to their peers. We offer a theory in which lower court adoption of the Supreme Court’s precedents are influenced through justice opinion attributes, case characteristics, and circuit-level influences. To test the predictions, we examine the universe of responses by US Courts of Appeals to the signed majority opinions of individual justices by assembling a dataset of over 130,000 observations. We assess the interdependence of the mechanisms at work through a coarsened exact matching algorithm. We find that intricate tendencies in opinion writing disparately impact lower court attentiveness to the Supreme Court’s decisions. These findings offer new and important implications toward a richer understanding of the influence of individual justices on legal development and policy adoption in the American courts.

Since the 1960s, police departments have turned to rules and procedures to help control how patrol officers, as legal decision-makers, exercise their discretionary authority. The logic of the administrative rulemaking model depends on the development and enforcement of bureaucratic rules and regulations. The public outcry over high-profile incidents of police abuses of authority has renewed interest in this approach. This article conceptualizes a complementary craft learning model to supplement rulemaking. This model harnesses patrol officers’ knowledge and skills, learned through experience, to the development of criteria for assessing and guiding how they use their discretion in less dramatic encounters with the public. Using in-depth interviews with thirty-eight patrol officers reacting to a video clip of a fairly routine and low-key neighbor dispute, we derive seven evaluative standards (accountability, lawfulness, problem diagnosis, repair of harm, economy, fairness, and safety and order). We then explore how these standards could be used by first-line supervisors to structure reviews of patrol officer decision-making through a process of reflection-in-action. Our purpose is to imagine a reform strategy that tries to account for the complex technical and normative dimensions of everyday police work to facilitate more deliberate, transparent, and principled decisions.

Legislatures often require a specific or minimal sentence be imposed if certain conditions are fulfilled. This study shows how such rules might benefit defendants. Israeli law requires that a suspended prison sentence be activated if the offender is reconvicted of a further offense during the term of suspension. Hence, the suspended sentence becomes a sort of minimum sentence for a breach offense. Yet judges are allowed to prolong the suspended term if, among other things, the breach offense is minor and hence does not result in a prison sentence. Using propensity score matching to analyze a rich database of magistrate court cases, we find that courts use the exception much more often than expected and, more importantly, that judges refrain from sentencing breaching defendants to prison, even if the breach offense justifies imprisonment, in order to circumvent the requirement to activate the suspended sentence. Moreover, for severe offenses, courts are less likely to sentence an offender to prison if the offender is in breach of a suspended sentence, compared to a similar offender who is not in such breach. For such offenses, being in breach of a suspended sentence reduces the likelihood of a prison sentence. For some offenders, the suspended sentence thus becomes a benefit rather than a punishment.

A growing body of research suggests that contemporary law firms face challenges with the retention of legal talent—especially women and racialized lawyers. Yet, we know little about the conditions that prompt lawyers to leave law firms or where they go after leaving. This article builds on the scholarship of John Hagan, emphasizing the role of social capital in law firm culture, and work by Emmanuel Lazega, tracing dimensions of law firm collegiality—both with implications for lawyers’ careers within and beyond law firms. I draw on data from a twenty-seven-year longitudinal survey of Canadian lawyers. Using piecewise exponential survival models, I examine organizational, cultural, and individual factors that may encourage mobility from law firms. The study reveals a pervasive gender difference that is not explained by human capital, organizational characteristics, or individual traits. Results also demonstrate the importance of social capital and firm culture—specifically, the presence of workplace policies of flexible scheduling, lawyers’ sense of a good match with their firm, their satisfaction with status rewards, and finally, the role of mentors—in shaping the flow of legal talent from law firms to various job destinations.

Our understandings of what corporations are—narratives of why they exist, who they serve, and their basic ontological status—matter for the way in which legal and ethical responsibilities become imputed to them. Interactions between the law of corporations and ordinary peoples’ thinking about themselves (as agents, as owners, and as responsible, or not, for an organization’s adherence to social mores) contribute to the way in which they imagine the corporation to be. Beyond the question of personhood, then, is the question of how the jurisprudence of the corporation is (en)cultured. To tease apart the multiple layers of this inquiry—to make the anthropologist’s move of rendering the familiar strange—it is useful to shift our attention to less typically encountered uses of the corporate form; here, a look at Indigenously owned corporations provides that new perspective. This slant view makes apparent new intersections between understandings of the reasons for corporate existence and the rights that the corporation might properly claim, suggesting the crucial role that these intersections might play in theorizing the corporation.

Over the past half-century, the US welfare and penal systems have become increasingly fused modes of poverty governance. At the center of the welfare-penal continuum sits probation, a form of community supervision that operates as a central hub, directing people to both services and incarceration. Drawing on interviews with 166 adults on probation in Hennepin County, Minnesota, in 2019, we argue that the coercive care of probation is structured by the broader project of controlling alcohol and drug use among the poor. Developing the concept of strong-arm sobriety, we show how the “criminal addict” trope undergirds the central processes of probation: treatment, testing, and revocation. We argue that strong-arm sobriety misreads structural precarity as the result, rather than the cause, of individuals’ choices. In doing so, strong-arm sobriety fails to address the circumstances that engender substance use and produces future subjects for coercive care.