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.

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.

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.

Recent years have seen a growing literature on citations between courts from different countries. What explains why such cross-citations occur between some courts but not others? This article addresses this question with original data on 2,967 citations between the private law supreme courts of the twenty-eight member states of the European Union. These cross-citations form a valued network of twenty-eight nodes, which can be analyzed with tools of network analysis. The article uses the method of a multiple regression quadratic assignment procedure in order to address the dependency of observations in a network. The explanatory variables distinguish between variables that proxy for legal similarities between countries and other factors, and, thus, this article contributes to the wider debate about the predominance of either legal or nonlegal factors in judicial decision-making. The main finding is that nonlegal factors play a decisive role, notably a common native language and overlapping language skills, while legal families are not found to be a significant determinant.

This article demonstrates a method to measure the extent and variation of ethnoracial disproportion in world prison populations. Using a novel data set covering eighteen democracies for the year 2016, this method shows that conspicuous ethnoracial disproportion in prisons is pervasive in democracies for which data is available. Socioeconomically marginalized ethnic and racial groups are overrepresented in the prisons of every case. Further, this pattern extends to countries known for penal progressivism, which otherwise are regarded as models of fair and rational criminal justice implementation. Correlation between prison disproportion and national socioeconomic and criminal justice characteristics suggests the complexity of the issue. A selection of single-case analyses drawn from the sample describe prison disproportion emerging under significantly varied national conditions. I discuss causal hypotheses for why ethnoracial disproportion would occur in such differing places.

In 1919, the Territory of Alaska enacted a tax to finance its school system, in which Native children could attend public schools alongside non-Native children only if they were “of mixed blood” and led “a civilized life.” As originally enacted, the scope of the tax included every man within a certain age bracket, meaning that all Native men would have been required to pay a tax designed to finance a racist and discriminatory policy. However, the Alaska governor and his attorney general quickly decided to narrow the scope of the tax to Natives who were either “civilized” settler colonial subjects or “uncivilized” workers in settler spaces. But what did this revised scope reflect? This article uses the history of the 1919 Alaska school tax to unpack the role of tax law in shaping subaltern political and sociocultural identities. It argues that the tax provided two of the territory’s most powerful men an opportunity to express and reinforce their ideological views on indigeneity. The tax also helped them advance settler colonialism, both by ensuring that segregated territorial schools would thrive and by crafting a legal instrument that allowed them to decide who was “civilized” enough to be a taxpayer.

This article analyzes the processes shaping the emergence of a professionalized legal academia in Chile. Through a case study informed by quantitative and qualitative evidence, the study shows that the control and orientation of a professional school is a contested space, where the interactions between the profession, the market, and the state shape the trajectory of the legal education field. The article argues that the neoliberal remaking of higher education of the 1980s created a regime that increasingly relies on performance indicators modeled on the paradigm of the research university, which have been used as an opportunity by law schools seeking elite status to increase their academic reputation through the formation of bodies of full-time legal scholars. This new institutional environment has produced, however, an important degree of malaise among the new professional legal academics, the majority of whom resent that their research is increasingly swayed by the standards imposed by governmental or university-wide bureaucratic structures rather than by the needs of legal practice.

In the immediate aftermath of Reconstruction, coverage of executions in the Atlanta Constitution and the New Orleans (Times-)Picayune occasionally portrayed African Americans executed by the state as legally, politically, and spiritually similar to their white counterparts. But as radical white supremacy took hold across the South, the coverage changed. Through an analysis of 667 newspaper articles covering the executions of Black and white men in Georgia and Louisiana from 1877 to 1936, I found that as lynching became the principal form of lethal punishment in the South, accounts of Black men’s legal executions shrank in length and journalists increasingly portrayed them as ciphers, nonentities that the state was dispatching with little fanfare. In contrast, accounts of white men’s executions continued to showcase their individuality and their membership in social, political, and religious communities. A significant gap between the material reality and the cultural representation of capital punishment emerged. Legal executions in Georgia and Louisiana overwhelmingly targeted Black men. But on the pages of each state’s most prominent newspaper, the executions of white men received the most attention. As a result, capital punishment was increasingly represented as a high-status punishment that respected the “whiteness” of those who suffered it.

What factors influence citizens’ demand for law to protect social rights? We turn to the case of social rights in South Africa, just under three decades after the end of apartheid and the adoption of social rights constitutionalism, to examine the contours of rights claims-making in the courts. Drawing on original interview and survey research, we argue that above and beyond factors such as the accessibility of the courts and support of civil society, citizens must believe that rights claims-making through courts is possible. We find that these beliefs and the subsequent demand for justice are connected to people’s personal circumstances, sentiments as rights-holders, and trust in legal institutions, rendering the legitimacy of social rights constitutionalism beholden to people’s perception that the state actually delivers on these constitutional promises.

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.