Landlords’ decisions significantly shape the housing outcomes of poor and stigmatized renters. Despite this important gatekeeping role, studies of antidiscrimination law have not thoroughly examined how private market actors respond to reform efforts or how private property rights potentially enable them to evade regulation. This study draws on ethnographic data gathered between late 2015 and early 2018 to examine how and why Seattle landlords opposed an ordinance regulating the use of criminal records in rental housing. The findings indicate that landlords’ opposition stems from their expectation that property protects owners’ ability to control their exposure to risk. Yet conceptions of property and risk perception alone cannot explain how landlords can evade regulation. Toward this end, I show how private property rights facilitate adaptation by which landlords can legally circumvent the intent of the law. The study highlights the value of a sociolegal framework of property in action, which incorporates cultural notions of ownership, legal rights, and the regulatory and market environments that shape owners’ discretion. I suggest that greater attention to risk discourse and property rights will deepen our understanding of the limits of antidiscrimination law and the ability of private market actors to adapt to, and resist, legal reform efforts.

Scholars pointed out that antidiscrimination laws do not fully undermine workplace discrimination and that affirmative action policies mostly benefit overqualified or advantaged individuals within minorities. To elucidate this paradox, this case study analyzes how some companies adopted specific selection and assessment processes for job seekers after the reinforcement of a quota for workers with disabilities in France. I observed the creation of alternative recruitment channels, the hiring of disability experts for recruitment, the refusal of resume sorting as a prescreening tool, and an emphasis on face-to-face interviews. While these changes circumvented practices that could have excluded people with disabilities (resume screening as a preselection tool, inaccessible venues for recruitment), they changed these practices only in limited spaces within the organizations. Additionally, while they did help more people get hired, they also compelled more personal disclosure that led to a more emotional assessment of job seekers and enabled “refined statistical discrimination” within pools of job seekers with disabilities. This research therefore reveals recruitment practices that may increase the number of individuals with disabilities hired but that, at the same time, may facilitate overselectivity and trigger significant risks associated with emotional recruitment of individuals with disabilities.

Constitutional drafters often look to foreign constitutional models, ideas, and texts for inspiration; many are explicit about their foreign borrowing. However, when implemented domestically, the meaning of borrowed elements often changes. Political scientists and scholars of comparative constitutional law have analyzed the transnational movement of constitutional ideas and norms, but the political processes through which the meaning of foreign provisions might be refashioned remain understudied. Sociolegal scholars have examined the “transplantation” and “translation” of laws and legal institutions, but they rarely scrutinize this process in the context of constitutions. Drawing on an examination of borrowed constitutional elements in four cases (Pakistan, Morocco, Egypt, Israel), this article builds on research in comparative politics, comparative constitutional law, and sociolegal studies to provide a nuanced picture of deliberate efforts to import “inclusive” constitutional provisions regarding religion-state relations while, at the same time, refashioning the meaning of those provisions in ways that “exclude” specific forms of religious, sectarian, doctrinal, or ideological diversity. Building on sociolegal studies regarding the translation of law, we argue that foreign constitutional elements embraced by politically embedded actors are often treated as “empty signifiers” with meanings that are deliberately transformed. Tracing the processes that lead political actors to engage foreign constitutional elements, even if they have no intention of transplanting their prior meaning, we highlight the need for detailed case studies to reveal both the international and the national dynamics that shape and reshape the meaning of constitutions today.

What happens when courts reach “good” outcomes through “bad” reasoning? Are there limits to consequentialist jurisprudence? The Indian Supreme Court’s recent decision in IYLA v. State of Kerala offers important insights on both issues. IYLA, decided in September 2018, held that the Hindu temple at Sabarimala may not ban women aged ten to fifty from its premises even though devotees argue the exclusion is religiously mandated. Reactions to IYLA have been vehement and violent, and so far only two women in the prohibited age range have managed to visit the temple. Perhaps any outcome impinging on religious practice would have elicited such responses. Nevertheless, the Court’s analysis, which disregarded devotee perspectives in its eagerness to acknowledge the previously overlooked perspectives of women, is problematic insofar as it superficially upholds the Court’s reputation as a progressive institution while creating bad precedent by further damaging the “essential practices” doctrine. This article draws on case law and legal analysis to demonstrate how the Court’s reasoning paid short shrift to its own doctrines and to conflicting imperatives in the Indian Constitution. The Court’s (and ruling’s) failures underscore the extent to which winning good outcomes through bad reasoning should be sobering rather than satisfying.

Marijuana continues to be legalized throughout the world. In the United States, a unique approach to legalization is taking hold that focuses on the creation of commercial marijuana markets. This article examines the everyday realities of this approach to legalization through a focus on one of marijuana’s most legally significant attributes: its smell. In the context of prohibition, the smell of marijuana was a key tool of criminal law enforcement. In the context of legalization, its significance has expanded to include nuisance laws governing the presence of unwanted odors and commercial laws that facilitate economic activity in the marijuana market. By focusing on the sense of smell in the context of marijuana legalization, this article shows the implications of the market-based approach for drug policy reform. More broadly, this focus highlights the importance of the senses to sociolegal change and the ongoing construction of legality in the context of capitalism.

This article examines how ill-defined legal norms around modern slavery are being outlined in supply chain legislation and then interpreted by management professionals. Building on an infrastructural analysis of supply chain governance, I uncover the set of practices that underlie recent regulations around modern slavery. I track the implementation of these laws by following the “chain of translation,” whereby information is transformed from on-the-ground raw data, to quantitative metrics of modern slavery risks, and, finally, to polished corporate statements. This analysis focuses on the critical role being played by the Supplier Ethical Data Exchange (Sedex), which is a platform for sharing responsible sourcing data. While Sedex is not an auditor and is not governed by lawyers, it is nonetheless serving an important function in interpreting legal norms around modern slavery and facilitating the implementation of supply chain laws. Yet there are potential costs to its expansive role. Sedex is translating modern slavery into a management problem largely based on quantitative metrics such as indicators and risk scorecards. While Sedex provides limited opportunities for public participation, it needs to be more transparent with respect to the methodology behind its metrics and provide further opportunities for comment by parties underrepresented in its governance.

Market regulation has traditionally focused on disclosure duties, yet mounting evidence questions their effectiveness. The efficacy of nudges is similarly doubted, especially when suppliers counter their effects. Consequently, there is growing interest in mandatory regulation of the content of contracts. Previous studies have examined public opinion about nudges but not about mandatory rules.

We explore how the formulation of mandatory rules might affect their judged desirability, focusing on the choices: (1) between negative and positive formulation; and (2) between merely establishing substantive mandatory rules and supervising the wording of the contract as well. We also examine laypersons’ general attitude toward mandatory rules.

We report the results of four studies, conducted with a representative sample of 968 US adults and 795 MTurk master workers. Contrary to our conjecture, we found that subjects generally judged wording rules as more desirable than merely substantive ones, and positive rules as more desirable than negative ones. There also appears to be strong support for pro-customer mandatory rules, even among conservative people. These results arguably legitimize more, and more effective, mandatory rules. They also suggest that the relative paucity of mandatory rules in US law is not due to public opposition to them but to other reasons.

This article explores the ideals of open Internet governance in Brazil. I examine Brazil’s Internet law, the Marco Civil da Internet (MCI), which promotes the right to Internet access, online privacy, and net neutrality. The MCI’s ideals of a free and open Internet are challenged by Internet companies, such as Facebook, which offer “zero-rating” promotions that provide limited, free mobile data to low-income subscribers. I juxtapose the ideals of openness embodied in the regulatory sphere of the MCI with those of Brazil’s cultura livre (free culture) movement to show the ascendance of open values in Brazilian governance and culture. Accordingly, I employ the rhetorical question, “Is Facebook the Internet?” to demonstrate the ways in which commitments to open Internet governance, expressed in both the cultural and regulatory realms, run counter to the more proprietary ideals of the transnational tech community.

Using interviews with forty formerly incarcerated people in the Greater Toronto Area, I explore how criminal record holders describe seeking work. People articulate being driven by a desire to be selective to whom, when, and how they disclose their past criminal record; they simultaneously want to talk about their past, at least to some people, some of the time. Many say they are quite selective in what types of jobs and employers they seek out, and their efforts to secure employment are driven by broader projects of stigma management. In light of these findings, I coin “selective, voluntary disclosure” (SVD) as a new set of policy configurations that aim to facilitate not only employment but also dignity, privacy, and empowerment. SVD is well attuned with what former prisoners describe doing on an everyday basis, and it accords with their goals, aspirations, and rehabilitative self-projects.

Capitalist society seems particularly disorderly of late, a disorder contributing to the beginnings of what we hope will be a renewal of Marxist legal scholarship. This essay reviews some key developments in Marxist analysis of law from the 1970s to the present. Over all, our essay traces a back and forth between Marxists’ emphasis on theoretical inquiry on the one hand and empirical and historical work inquiry on the other. We argue that Christopher Tomlins’s 1993 book, Law, Labor, and Ideology in the Early American Republic, remains salient for thinking about ways to combine Marxist theoretic and historical work to understand the role of law in capitalist social formations and that Nancy Fraser and Rahel Jaeggi’s recent book Capitalism: A Conversation in Critical Theory offers complementary resources for a renewal in Marxist legal thought. We conclude that further development of Marxist legal thought will require a mix of both empirical and theoretical innovations, and we identify political questions that Marxists will need to address.

Robert A. Kagan’s influential book, first published at the beginning of the twenty-first century, is now brought up to date with a second edition. “Adversarial legalism,” in Kagan’s view, distinguishes law in the United States from the law of other developed countries in many ways, for example, heavy use of policymaking through litigation and punitive regulation, as opposed to bureaucratic and conciliatory techniques. He suggests that this situation is likely to continue. This essay, however, looks at the same phenomena from the standpoint of similarities rather than differences. It suggests that powerful economic and cultural forces, common to the modern world of developed countries, tend to push the legal systems of these countries in parallel directions. Convergence, rather than divergence, is therefore the trend in the legal systems of the Western world; and this trend is likely to continue in the future.