Rights constitutionalism faces a global crisis of legitimacy, and recent years have seen a surge in scholarship on the crisis. The vast majority of analyses focus on broad structural factors and processes. This article takes a different approach: sociological and bottom up. I use qualitative discourse analysis to examine how social actors in Israel justified their antagonism toward rights constitutionalism in three cases where judicial intervention for human rights encountered exceptional public opposition and political backlash. The analysis reveals that social actors used discourses of belonging—both liberal and non-liberal—to challenge rights constitutionalism as a constraint on democratic politics, when they perceived rights protection as conflicting with or undervaluing boundaries of collective identity. Based on these findings, I introduce a new concept—the challenge of belonging—that expresses the normative tension between individual rights and collective belonging. By highlighting the ethical dimension of social opposition to rights constitutionalism, the sociological approach allows a nuanced understanding of such opposition. The challenge of belonging can account for mixed attitudes in the same polity and even in the same social group on rights-oriented judicial intervention, and it points to a common normative thread linking attacks on liberal constitutionalism in vastly different sociopolitical settings.

Theories of vigilantism frequently locate its cause in the ineffectiveness of the state legal system. The state legal system does not work for some, so they take the law into their own hands. Even in communities where vigilantism is prevalent, however, only certain harms are met with vigilantism. Why are some harms met with violence while others are not? To explore this question, I draw on nine months of fieldwork in the eastern Democratic Republic of Congo, a nation with a largely ineffective state legal system and the presence of vigilantism. Yet vigilante remedies are largely reserved for harms attributed to witchcraft, and typically only particularly serious witchcraft harms. In this article I draw on the concept of legal consciousness to understand why people might turn to vigilantism in response to witchcraft. I develop two themes of legal consciousness—a disconnect in harm naming and different logics of justice—that help explain dynamics vigilantism. My research thus contributes to the scholarship on both vigilantism and legal consciousness.

Myanmar’s citizenship law is stratified by ethnic membership, but, on the books, it is gender neutral. Much attention has therefore focused on ethnic discrimination codified in the law. But individuals whose ethnic identities should provide them with a legitimate claim to citizenship continue to face barriers. Why is this the case? This article examines the additional obstacles that women face legitimating their ethno-national membership and conferring citizenship on their children, despite the gender neutrality of the citizenship law. I argue that the patriarchal structure of evidentiary documentation and patrilineal understandings of ethnic membership transmission shared by village leaders operating as key gatekeepers influence which parent’s claim—father’s or mother’s—to taingyintha (Indigenous or national ethnicity) membership can strengthen or weaken an individual’s chances of obtaining citizenship. The ethno-national identity of women is not evaluated equally to that of men, challenging women’s ability to capitalize on their taingyintha identity for citizenship purposes and contributing to the reproduction of statelessness across generations. I focus on this intersection of gender and ethnicity in establishing ethno-national membership and citizenship across variation in regional geopolitical environments to expand socio-legal knowledge on how formal and informal discrimination together exacerbate inequalities beyond the letter of the law.

This article examines the role of industry in implementing and interpreting the international legal norm of human rights due diligence. Our study focuses on a multi-industry association called the Responsible Minerals Initiative (RMI), which has assumed a leading role in implementing conflict minerals legislation and interpreting the norm of human rights due diligence in mineral supply chains. Drawing on interviews with RMI staff, corporate representatives, and independent members of the RMI’s governance committees, we analyze the RMI’s risk assessment tools that facilitate corporate compliance with global mineral supply chain regulations. We demonstrate that these technocratic tools mask the underlying corporate interests that control how human rights due diligence is being interpreted and implemented on the ground. We then argue that global supply chains are being “governed at a distance” through these technical practices whereby companies divest themselves of responsibility to their suppliers. Supply chain governance at a distance is therefore transforming the norm of human rights due diligence from an instrument of corporate accountability to a tool of corporate legitimacy.

This article examines the development of international human rights standards and oversight mechanisms directed at addressing the negative effects of imprisonment. We identify this as the rules-based prison-regulation project, widely endorsed by international organizations and legal scholars. However, with a focus on the United Nations Standard Minimum Rules for the Treatment of Prisoners, we argue that this project has inherent limitations, as it is based on (a) a reductive understanding of carceral harms and (b) a rule-centric ontology of prisons. By challenging these foundations, we explore whether the project exemplifies “cruel optimism” (Berlant, 2011), where the pursuit of improved prison regulation could inadvertently hinder societal flourishing. We argue that the continuous search for new and better prison standards may perpetuate rather than alleviate the problems associated with imprisonment unless accompanied by explicit strategies for countering prison growth and dramatically reducing prisoner numbers, for building the democratic power of prisoners and communities targeted by imprisonment, and continual linkages between prison conditions and the wider political-economic institution of imprisonment. We conclude that engaging with prisons as sites of relational power in practice must underlie any quest to reduce the harms of imprisonment.

Scholars studying wrongful convictions have long examined their causes and the ways in which to prevent them and are increasingly interested in exonerees’ post-prison reentry processes. However, research on the experience of incarceration as a result of wrongful conviction is scarce. This article draws on in-depth interviews with eleven exonerees across three states (Illinois, Texas, and New York) to theorize how multiple facets of innocence (personal, relational, and institutional) shape the ways in which former prisoners have navigated their wrongful incarceration: learning to prove their innocence. For many wrongfully convicted inmates, acquiring legal knowledge and mobilizing post-conviction law—specifically, actual innocence jurisprudence—plays a central role in their daily lives given the onerous legal work it takes to prove their factual innocence. I advance what Kathryne M. Young has termed second-order legal consciousness, which prioritizes the social processes that create legal consciousness, as a framework to illuminate how wrongfully convicted inmates constructed legality when pursuing legal exoneration in prison. This article offers new insights into the relational nature of law to show how marginalized groups like prisoners mobilize law when pursuing their rights and allows us to theorize innocence in contexts where the state and society writ large have ascribed a person’s legal guilt.

This article examines how social capital affects the resolution of disputes by focusing on English Wikipedia’s Arbitration Committee, sometimes described as “Wikipedia’s Supreme Court.” Drawing on quantitative and qualitative data, the article contends that the Arbitration Committee not only examines the merits of the claims made by the disputants, but also and more crucially considers the position of each disputant within the community of editors in its decision-making process. In doing so, the Arbitration Committee does not simply decide or arbitrate disputes but seeks to attenuate their impact on Wikipedia’s social fabric. This data allows us to revisit sociological debates on the role of social capital, by revealing the ways in which well-connected individuals employ it strategically in order to obfuscate their noncompliance with norms, thus leading to what I call “dispute cancellation.”

How do transnational lawyers valorize their expertise in a political and economic crisis? This article argues that knowing how transnational lawyers valorize their expertise is critical to understanding how transnational law evolves and affects society, especially when existing legal frameworks prove to be inadequate and novel practices must pave new paths. Using the acute phase of the Eurozone crisis between 2010 and 2012 as an empirical case, I examine how European Union (EU) legal agents constructed a framework that accommodated the uncertainty of governing a crisis while also mediating the contentious politics between EU Member States. The analysis shows that as intergovernmental bargaining dominates Eurozone crisis governance, EU legal advisors intervene to reconcile these bargains with the EU legal order using novel practices that simultaneously valorize their legal expertise. These practices in effect engender a high degree of interdependence and interconnection between the EU legal order and several intergovernmental arrangements—especially the European Stability Mechanism—leading to the creation of a unique form of EU governance: semi-intergovernmentalism. This article contributes to debates on legal globalization by empirically examining how transnational legal agents valorize their expertise through strategies directed at defending their autonomy while protecting the normative coherence of their transnational legal order: the EU.

This article examines aspirational laws in a randomized field experiment. We analyze the impact of an unenforced public smoking ban on individual behavior and attitudes. The findings indicate that aspirational laws, like public smoking bans, can make rights holders sensitive to behavior that violates their rights, irrespective of the material consequences of infringements and their personal views about the law. The results present a mixed position in the debate between rights-based social movement lawyering and critics of hollow rights. On the one hand, aspirational laws can create unforeseen social frictions when rights are declared, but their implementation and enforcement are ineffective. On the other hand, aspirational laws may also have self-fulfilling potential. Due to the adverse experience of rule breaking, rights holders may seek enforcement and compliance even if the law fails to influence public beliefs.

This article presents a legal history of US citizenship in Guam. I argue that members of Guam’s Congress mobilizing for US citizenship in the 1930s and in the immediate aftermath of World War II offer a powerful and instructive example of popular constitutionalism, or the interactive, extrajudicial process that generates constitutional meaning. Guamanians made constitutional claims to US naval leaders and lawmakers, arguing that colonized people living in the US empire should be US citizens despite ambiguous Supreme Court precedents in the Insular Cases, congressional inaction, and naval obstruction. Guamanians interpreted the Constitution in a way that pressured and influenced naval leaders to support and US lawmakers to ultimately enact legislation that extended citizenship to Guam. This legal history demonstrates the complexity of popular constitutionalism within the context of US empire. By claiming that they should be considered US citizens after the United States formally annexed Guam after the Spanish-American War, Guamanians drew on the Constitution to demand equality, dignity, and full inclusion in the US polity for colonized people. US naval leaders and lawmakers turned this egalitarian reading of the Constitution to their own strategic advantage, however, deploying it as a valuable piece of Cold War propaganda. This article thus provides a useful example of the ideological indeterminacy of popular constitutionalism. The Constitution can be interpreted by marginalized populations to demand equality and inclusion. But the Constitution can also be interpreted by the military and congressional leaders of a global empire to maintain systems of power, oppression, and subordination.

Contracts are the underpinning of functional business, governmental, organizational, and inter-personal relations across the developed world. It is a methodological advance for contractual research scholars to transform qualitative contractual information into quantitative data to analyze if, how, and why the law is reflected and reproduced in contracts—potentially explaining the continuation or amelioration of social injustices—and/or if contractual content informs human behavior or vice versa. However, efforts to “quantitize” contracts and statistically study them are scattered across subfields without much methodological guidance. The linguistic complexity of many legal contacts, paired with few repositories, makes their comparative quantitative analysis challenging. Prior attempts to quantitatively analyze contracts often lack shared systematic methods for measuring specified textual content, transforming this information into a quantitative format, or statistically analyzing the produced data set. This article presents the power and promise of transforming legal contracts and other similar documents into quantitative data for analysis, reviews the research to date that does so in different ways, and then provides concrete guiding steps and an illustrative example of how to transform contractual content into quantitative data that are valid, reliable, and reproducible, increasing the quality of the data produced and supporting the important socio-legal conclusions that can be derived from their analysis.

In the United States in the early twentieth century, state and local laws discriminating on the basis of alienage proliferated. Progressive reformers, nativist groups, state legislatures, and city councils sought new methods for restricting noncitizen access to the workplace and the marketplace. As this article demonstrates, the primary vehicle they utilized was state and local licensing laws. Licensing proved to be a powerful tool of exclusion; by 1930, citizenship-based licensing restrictions were present in every state and most major cities. Noncitizens challenged some of these laws, pushing for greater protection of their constitutional rights. The resulting court contests over exclusionary licensing laws led to the creation of a new branch of legal doctrine, one that redefined the relationship between noncitizens and state power. This article highlights the significant and underappreciated role played by state and local laws in shaping the immigrant experience in the Progressive Era. It furthers our understanding of the licensing power and illuminates a pivotal moment in the development of immigrant rights. Today, noncitizens are still excluded from a range of economic activities due to licensing restrictions. This article explores the roots and the spread of this little understood – and still consequential – technique of exclusion.

This article explores how not-in-my-backyard (NIMBY) sentiments affect the implementation of new cannabis laws in California cities. Despite increasing legality and growing social tolerance, the actual status of cannabis remains controversial. Large segments of the population and local authorities remain uncomfortable with the use of cannabis and resist allowing cannabis facilities in their communities. I employ statistical analysis to understand why some jurisdictions move toward more permissive cannabis policies and others do not. The results show that, on average, socially and economically prosperous cities express higher support for cannabis legalization, but cannabis businesses are more likely to receive permits in cities that are socially and economically distressed. The disparity between demand (white middle-class communities) and supply (poor Hispanic communities) demonstrates that stereotypes generated by the war on drugs have not disappeared after the passage of new cannabis laws and continue to perpetuate the marginalization of disadvantaged individuals and places.

This study examines legal opportunity in China after the recent “law-based governance” reforms, including those that have professionalized the judiciary, established NGOs’ public interest standing, and expanded legal aid coverage. Based on in-depth interviews, it finds that despite the generally tightening political control over the social sector, the reforms have helped some law-related NGOs expand their litigation practice, social and legislative influence, and domestic funding sources. At the same time, these changes have had considerable cooptation effects by aligning these NGOs’ interests with the state’s and channeling their activities into state-sanctioned institutional processes. The findings suggest that states can effectively utilize a dualist strategy that combines restrictive and supportive approaches to public participation in the legal process. It thus sheds light on the progression of legality within various political and institutional contexts.

In 2008 the California Supreme Court forced the state’s parole board to change how it justifies the decision to keep a person in prison. This article combines computational and interpretive analysis of 9,842 hearing transcripts to show how, to achieve compliance with the court, parole board commissioners refurbished an old rehabilitative way of talking about incarceration found in a set of secondary hearing procedures and placed it at the center of decisions. The article considers the consequences of this shift for inequality in incarceration in California. More broadly, it makes the case for focusing on the relationship between administrators and those who can directly intervene in their practices in the name of compliance to understand bureaucratic penal change.

Executive clemency is a discretionary power to grant legal mercy and is rarely given. Using data from contemporary clemency hearings in four states, I explore how state actors use commutation hearings as sites to exert social control and communicate hegemonic ideology. Clemency board members use hearings as sites to communicate the behaviors and attitudes they desire from applicants, aiming to generate compliance and consent. These state actors use the ritual of the clemency process and the hope afforded by the possibility of legal mercy as tools to motivate desired behaviors and beliefs among those in prison both explicitly and implicitly in these hearings. Such behaviors and beliefs, accordingly, are those that serve to reinforce the control and power of the state.

In this article, we: (1) advance a theory for how courts should respond to highly political disputes about jurisdictional authority, and (2) assess whether courts can achieve this ideal. Our theory draws from normative realism to argue that courts should push conflict back into the political realm whenever possible—facilitating free and fair dialogue by outlining rules and principles to guide negotiations, while also rejecting zero-sum outcomes when enforcing jurisdictional powers and related rights. We favor this approach because it can generate legitimacy for the legal and political systems by recognizing the judiciary’s limited democratic standing in structural disputes. To ground this argument in actual practice, we assess how the Supreme Court of Canada has managed two streams of highly political jurisprudence related to jurisdictional authority—federalism and Aboriginal rights cases. We show that the Court has increasingly relied on this approach of facilitating dialogue in both areas. While we argue that this approach is particularly well suited to federalism cases, our analysis uncovers negative outcomes in Indigenous case law. The Court’s approach often fails to strongly enforce the constitutional rights of Indigenous peoples, demonstrating that its facilitator role does not adequality account for the power imbalances between the state and Indigenous peoples.

International criminal law (ICL) is premised upon the principle of individual criminal responsibility—the idea that individual persons, rather than states or other entities, bear criminal responsibility for mass atrocities. This principle has been operationalized in practice through the development of various legal theories, technically known as “modes of liability,” that delineate individual contributions to collective forms of violence. However, the modes of liability have been interpreted and applied differently across international courts and tribunals. Crucially, the International Criminal Court has construed those modes in a significantly more restrained manner than previous international tribunals, essentially limiting the set of situations in which a person could be found guilty of an international crime. This article contributes to the interdisciplinary literature on international criminal justice by exploring the social construction of different conceptualizations of the modes of liability in ICL and their transformations over time. Specifically, the framework focuses on the promotion and contestation of ideas among various actors participating in the international criminal justice field and the power dynamics that govern the field. This is a key issue for ICL and global justice because it demarcates the legal boundaries of “guilt” and “accountability” for international crimes.

This article shows how Progressive-Era state actors in Chicago employed open-ended, low-level criminal charges directed at regulating the moral health of the community to criminalize interracial relationships—even though interracial marriage had been legal in Illinois since 1870. Capacious legal definitions of offenses like vagrancy, disorderly conduct, adultery, and fornication allowed police officers and judges to delineate moral and immoral relationships along racial lines. Using newspaper articles, writing from contemporary social reformers, and court reports, this article reconstructs the treatment of interracial couples in the Chicago legal system to show how discretion in criminal law can reinforce racial hierarchy. I offer three historical arguments: first, that individual arrests and prosecutions of interracial couples labeled lawful, interracial relationships as a form of unlawful “vice,” second, that large-scale raids on spaces for interracial socialization reinforced the criminality of interracial intimacy in a segregated city, and third, that singling out interracial couples allowed the state to exercise control through intrusive forms of punishment like probation and institutionalization.

Because states must rebut the presumption of responsibility, all prisoner deaths must be investigated. These investigations frequently illustrate the tip of an iceberg of rights abuses and systemic hazards but have largely escaped analysis in prison-monitoring scholarship. Focusing on suicides, we assemble some of the first evidence illustrating how the staff of the Prisons and Probation Ombudsman, who investigate prisoner deaths in England and Wales, seek to prevent further deaths. Ombudsman investigations are widely regarded as ineffective, yet there are competing constructions regarding why this is and what could be done to improve outcomes. As a result of organizational norms and constraints, ombudsman staff have offered narrow accounts of prisoner suicides, focusing on the failure of frontline staff to comply with prison policies. By contrast, prison staff and coroners have focused on systemic hazards or “accidents waiting to happen,” including imprisoning people with severe mental illness, illegal drugs, unsafe facilities, and inadequate staffing. These differing constructions lock penal actors into an unproductive cycle of blame shifting that contributes to high suicide numbers. We reconceptualize prisoner deaths as occurring at the intersection of systemic hazards, organizational contexts, and individual errors. We hope that this reconceptualization facilitates broader investigations that are more likely to prevent prisoner deaths.