This symposium focuses on judicial politics at the micro level. Its aim is to shed light on justice in action, drawing on an ethnographic approach to explore the routine decision-making practices of judges and other legal actors, and to study their interactions with citizens and politicians. Each article is based on close observation of the interactions between legal professionals and administrative actors who are at the frontline in local and lower courts. By examining a variety of jurisdictions around the globe, the articles in this symposium offer fresh insight into “judicial politics on the ground.”

This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.

In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession. Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.

Although judges were included in the street-level-bureaucracy (SLB) group by Lipsky (1980), sociolegal scholars have barely used this theoretical framework to study them. This article aims to specify their position with respect to SLB in order to bridge the gap between public administration and sociolegal research. Specifically, using a cross-national ethnography of judicial institutions, it compares family trial judges' practice on the ground in France and Canada. General conditions separate them from the core SLB group: encounters with clients are less direct; discretion is more legitimate. However, French judges are far closer to the SLB group than their Canadian counterparts regarding public encounters and case processing. As such, the accuracy of the SLB framework depends on professional and cultural patterns that combine differently in these two national contexts.

Based on Chinese constitutional analysis, political science, and law and society studies, we argue that work extending the application of popular constitutionalism to authoritarian states applies in Vietnam, as popular constitutionalism targets sites relevant to constitutional reform. We contend that popular constitutionalism located in authoritarian states requires three factors: a tradition of activism, space for reformist and pragmatic dialogue targeting constitutional change, and the political need for legitimacy. This article analyses activism in Vietnam, focusing on the lodging of Petition 72 with the Constitutional Amendment Drafting Commission in 2013, and the resulting responses. We conclude that this activism was pivotal in advocating for new constitutional norms, evidencing popular constitutionalism in Vietnam. The long history of Vietnamese scholar activism, the relative space for governance debates, and the political need for legitimacy made this possible. We also note that popular constitutionalism faces constraints in authoritarian states, which may shape its trajectory.

Legal self-help is the fastest-growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self-help clinic, this article expands the empirical investigation of access to justice to consider what legal self-help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self-help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.

Between the 1970s and 1990s, political scientists in the United States pursued a distinctive research program that employed ethnographic methods to study micro politics in criminal courts. This article considers the relevance of this concept for court researchers today through a case study about bail decision making in a lower criminal court in Australia. It describes business as usual in how decisions are made and the provision of pretrial services. It also looks at how traditionalists and reformers understood business as usual, and uses this as a critical concept to make visible micro politics in this court. The case study raises issues about organizational change in criminal courts since the 1990s, since there are fewer studies about plea bargaining and more about specialist or problem-solving courts. It is suggested that we need a new international agenda that can address change and continuity in criminal courts.

In these two fine contributions to the relatively small body of empirically-grounded theoretical accounts of law, Fred Schauer and Richard McAdams focus on the two key elements of any legal system: the coordination of conduct that individuals have an incentive to engage in if they believe others will also, and the coercive force that is needed to deter conduct when coordination incentives are absent or insufficient. Both contributions deepen our understanding of the dynamics of coordination and coercion. But both also focus primarily on the concept of law as a set of rules generated and enforced exclusively by government. In this comment, drawing on recent work with Barry Weingast, I emphasize the importance of extending the scope of analysis to include settings in which governments are missing or weak and where legal order has not yet been achieved or stabilized—the challenge that faces many poor and developing countries around the world and the challenge that today's advanced legal regimes overcame historically. In our account, coordination and coercion are not substitute mechanisms, but are deeply linked: prior to the establishment of wealthy stable governments (and perhaps even in the presence of such governments), coercive penalties are delivered only if the decentralized application of punishment by ordinary individuals is successfully coordinated and incentivized.

This article explains the development of international crime as a legal category. I argue that states' pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States' turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies' attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.

This article examines the history of the Chilean Legal Aid Service (Servicio de Asistencia Judicial) from the 1920s until the 1960s. It argues that with the emergence of the “social question”—the concern for improving the lower classes' working and living conditions to promote the nation's modernization and prevent political radicalization—the Chilean legal profession committed to legal aid reform to escape a professional identity crisis. Legal aid allowed lawyers to claim they had a new “social function” advocating on behalf of the poor. However, within legal aid offices, lawyers interacted with female social workers who acted as gatekeepers, mediators, and translators between the lawyers and the poor. This gendered professional complementarity in legal aid offices helped lawyers to put limits on their new “social function”: it allowed them to maintain legal aid as a part-time activity that did not challenge the structure of the legal system as a whole.

How is legal order possible? Why do people comply with law when it prevents them from doing what they think best? Two important books show how these questions can—and from some methodological perspectives must—be answered in the form of game-theoretic accounts that show how legal compliance can be compatible with the broad self-interest of officials and citizens. Unfortunately, however, these books also serve to demonstrate that game-theoretic accounts along these lines lack the resources to explain how real-world legal systems emerge and evolve or the various institutional shapes these systems take. The fundamental limitation of game theory, in this context and more generally, is its inability to predict or explain the size and shape of cooperative equilibria.

Public interest law organizations (PILOs) are important institutions for providing access to justice in the United States. How have political, economic, and institutional factors shaped PILOs? How do PILOs vary in the services they offer and in their geographical location relative to poverty and population in the United States? This article investigates these questions by combining original survey data from a representative sample of public interest law organizations with GIS data on population and poverty. We find that the presence of a PILO is positively related to political progressiveness and population at the county level, but negatively related to the concentration of poverty. Our analysis reveals a two-tier system of public interest representation in which national organizations engage in a variety of social change strategies, whereas local and regional organizations utilize more limited strategies and depend more on governmental funding. These patterns have implications for access to justice in the United States today.

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game-theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well-grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game-theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game-theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.

Since 2013, a three-year entry bar (zapret na v'ezd) has been issued in Russia to migrants with a record of two or more administrative offenses. This article examines the sociolegal characteristics of zapret na v'ezd by situating it in a global, comparative perspective, vis-à-vis the legal developments in the areas of deportation and removal in the United States and the United Kingdom. This article argues that the Russian entry bar law experienced a shift, established by other migration-receiving jurisdictions, from controlling the migration process to controlling the social conduct of migrants, toward an increased reliance on deportability as a form of post-entry control of the migrant population. At a broader level, I aim to shed more light on the migration governance processes in Russia—the third largest destination of migrants worldwide—by moving away from the intellectually dead-end explanations that consider Russia as a deviant exception.

International law dictates that actors in armed conflicts must distinguish between combatants and civilians. But how do legal actors assess the legality of a military operation after the fact? I analyze a civil proceeding for compensation by victims of a German-led airstrike in Afghanistan. The court treated military video as key evidence. I show how lawyers, judges, and expert witnesses categorized those involved by asking what a “military viewer” would make of the pictures. During the hearing, they avoided the categories of combatants/civilians; the military object resisted legal coding. I examine the decision in its procedural context, using ethnographic field notes and legal documents. I combine two ethnomethodological analytics: a trans-sequential approach and membership categorization analysis. I show the value of this combination for the sociological analysis of legal practice. I also propose that legal practitioners should use this approach to assess military viewing as a concerted, situated activity.

Nonlawyer advocates are one proposed solution to the access to justice crisis. Theory and research suggest that nonlawyers might be effective, yet scholars know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers who represent employers in these hearings, this article explores how both types of representatives develop expertise and what this means for effectiveness. We find judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through “trial and error.” We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or advocate for law reform on a broader scale. These findings have implications for future access to justice research and interventions.