There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Against this view, this essay suggests that the relations between theory and empirical study ought to be understood as more intimate and that making legal theory an explicit focus can improve empirical scholarship. We pursue this claim by articulating a basis for legal theory and by showing how that basis illuminates both the application and design of empirical research on law. Legal theory, we argue, follows jurisprudence in interrogating the law as a set of coercive normative institutions. The upshot of this approach is a recognition that an interdisciplinary analysis of law must rely on both a theory (explicit or implicit) of the way law's power and its normativity align and an account of the way in which this discursive cohabitation manifests itself institutionally. We thus argue that legal theory is necessary in order to draw fruitfully on empirical research and further claim that legal theory provides guidance both for setting up an empirical research agenda on law and for designing research into specific topics.

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process. Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon's opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously. Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “nonoffenders.” In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror. In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

This article reexamines one of the most enduring questions in the history of human rights: the question of human rights universality. By the end of the first decade after the end of the Cold War, debates around the legitimacy and origins of human rights took on new urgency, as human rights emerged as an increasingly influential rubric in international law, transnational development policy, social activism, and ethical discourse. At stake in these debates was the fundamental status of human rights. Based in part on new archival research, this article offers an alternative interpretation of the rediscovery by scholars in the late 1990s of a 1947 UNESCO survey that purported to demonstrate the universality of human rights through empirical evidence. The article argues that this contested intellectual history reflects the enduring importance of the “myth of universality”—a key cultural narrative that we continue to use to find meaning across the long, dark night of history.

Visual data are transforming the documentation of activities across many legal domains. Visual data can incriminate or exonerate; they can shape and reshape public opinion. Visual evidence can legitimize certain accounts of events while calling others into question. The proliferation of visual data creates challenges for the law at multiple points of entry: recording, distribution or disclosure, redaction or deletion, or use as evidence. This symposium outlines and analyzes legal challenges posed by recent developments in visual data technologies and practices. This introductory essay and the articles that follow highlight legal issues that arise when state actors collect visual data and when visual data are used in legal disputes. Technological development is outpacing empirical research on, and legal regulation of, visual data within society and inside the courtroom. This symposium provides a much-needed opportunity to highlight new legal and empirical research at the intersection of visual data and law.

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well-defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.

In 1917, Congress created the status of temporary labor migrant. A new kind of restricted worker born from nineteenth-century free labor politics, employer and citizen worker demands under modern liberal capitalism, and state labor market regulation, temporary migrants have always had an employer-dependent legal status and been subject to deportation. Yet, since 1942, changing rights and legal processes have governed migrant employment termination across sectors. By drawing on employment cases from archival and unpublished files made available to me under FOIA, and court decisions, I compare the impact of laws of employment termination on deportable laborers beginning in 1942, when government agencies planned migration, and under privatized migration after 1964. From agriculture and war to today's service and knowledge economies, I demonstrate how employment rights have always shaped deportable workers' legal status. Yet, I also show how today's rights and legal processes, in contrast to the past, hardly mitigate employer control over migrants under contemporary capitalism.

Unwelcome touching, groping, and kissing are illegal, but widely tolerated in public drinking settings. This contingency in the law's response means that patrons routinely negotiate the moral boundaries of nonconsensual sexual contact. We use 197 interviews with college-age individuals to examine the discursive strategies young people employ when negotiating those boundaries. We find that most interviewees have experiences with sexual aggression, do not categorize it as aggression, but advocate for stronger legal punishments against offenders. In accounting for this paradox, they draw on contradictory legal and cultural narratives that both normalize and condemn men's sexual aggression. We build on legal consciousness theories and gender theories by highlighting the complex ways that gender stereotypes enshrined in law are implicated in the construction of a social problem. We also contribute to the sociology of culture by explicating the often unconscious link between culture and action revealed in young people's narratives about sexual aggression.

This article examines the persistent authority of lobola, the customary practice for forming marriages in many South African communities. South African marriage rates have sharply fallen, and many blame this on economic challenges completing lobola. Using in-depth, qualitative research from a village in KwaZulu-Natal, where lobola demands are the country's highest and marriage rates its lowest, I argue that lobola's authority survives because lay actors have innovated new approaches for pursuing emerging desires for marriage via lobola. I argue that dyadic narratives of marriage increasingly circulate alongside “traditional” extended-family narratives, especially among the young women who strongly support lobola while yearning for gender-egalitarian marriages. My argument synthesizes actor-oriented analyses of legal pluralism with Ewick and Silbey's theorization of lay actors’ role in producing legality to illuminate how lay actors contribute not only to the form and content of different legal systems, but also to the reach of their authority.

This article seeks to understand how reported mediation rates in Chinese courts are produced and what they actually signify. It analyzes data obtained through prolonged fieldwork at a court in central China. The article finds that the court has directly responded to central level mediation incentives by enhancing its overall mediation rate. It has done so strategically by seeking the highest increase using the fullest discretion in the mediation incentive structure and seeking to optimize the highest rate at the lowest cost and risk to the court. This has undermined the objectives of the central level incentives toward mediation, while also drawing the courts' scarce resources away toward unnecessary mediation practices, in part far removed from the courtroom. The article concludes by drawing out broader theoretical conclusions about how information asymmetries, discretion, and goal displacement play out in hierarchical control structures of authoritarian courts.

The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept—movement liberalism—that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.

As law deepens its engagement with visual data, legal scholars have expressed concern that courts all too often uphold photographic evidence as objective representations of truth, rather than as necessarily partial portrayals of reality. To combat this naïve realism in legal institutions, some are incorporating insights from media studies in calling for a jurisprudence of the visual. Drawing on an ongoing lawsuit over the disclosure of detainee abuse photographs taken in Iraq and Afghanistan after September 11, I suggest this project expand its scope to examine litigants' interpretations of images in courtrooms, as well as concerns beyond photographic objectivity that arise in disclosure disputes, including images' unique privacy implications and national security risks. Though the stakes in this case are atypical, these specific concerns are to varying degrees more germane. Having all been raised before, they are likely to be heard again, if only by a single judge or jury.

For-profit penal servitude flourished in Gilded Age America. Prisoners produced consumer goods inside factory-penitentiaries for private enterprise. Regulations protecting free labor encountered litigation by businesses invested in carceral capitalism. Judges who defended “liberty of contract,” maintained “state neutrality,” and condemned “class legislation” exhibited a different approach when evaluating labeling laws. Such statutes were seemingly consonant with the free labor ideology that dominated appellate benches—they remediated markets distorted by state-created privileges. Yet courts routinely struck them down. This article argues that judges were motivated by a class-infused framework structuring interpretation of facts and aliening lower-class Americans. Judges perceived workingmen who sought remedial assistance as seeking class legislation; they saw prison inmates and products as ordinary workers and goods, not as captive manpower and state-subsidized wares. Jurisprudence bent and bowed from judges’ values and associations. This article thus reintroduces the explanatory power of class to the Lochner era through judicial subjectivity.

Citizen video and other publicly available footage can provide evidence of human rights violations and war crimes. The ubiquity of visual data, however, may overwhelm those faced with preserving and analyzing it. This article examines how machine learning and computer vision can be used to make sense of large volumes of video in advocacy and accountability contexts. These technologies can enhance the efficiency and effectiveness of human rights advocacy and accountability efforts, but only if human rights organizations can access the technologies themselves and learn how to use them to promote human rights. As such, computer scientists and software developers working with the human rights community must understand the context in which their products are used and act in solidarity with practitioners. By working together, practitioners and scientists can level the playing field between the human rights community and the entities that perpetrate, tolerate, or seek to cover up violations.

Through the lens of lesbian and gay parenthood we ask how individuals who experience “legal status ambiguity”—that which emerges when legal fluctuations combine with divided attitudes, ignorance of the law, and autonomous institutional gatekeepers—exercise their legal rights and responsibilities. The results from thirty-one interviews with lesbian and gay parents in Oregon and their six adult children suggest that the state's fluctuating legal and social climates for lesbian and gay parenting between 1985 and 2013 presented significant challenges for two generations of same-sex parents. Although both cohorts created and utilized a range of legal and social mechanisms to assert their legal rights, they found these rights to be controlled as much by gatekeeper perspectives as by legal force. After the 2015 Obergefell ruling on marriage equality, lesbian and gay parenting status remains a site of ongoing legal and social contestation, providing insight into the risks and challenges of legal status ambiguity.

While data theft and cyber risk are major threats facing organizations, existing research suggests that most organizations do not have sufficient protection to prevent data breaches, deal with notification responsibilities, and comply with privacy laws. This article explores how insurance companies play a critical, yet unrecognized, role in assisting organizations in complying with privacy laws and dealing with cyber theft. My analysis draws from and contributes to two literatures on organizational compliance: new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars' research on how institutions govern through risk. Through participant observation at conferences, interviews, and content analysis of insurer manuals and risk management services, my study highlights how insurers act as compliance managers for organizations dealing with cyber security threats. Well beyond pooling and transferring risk, insurance companies offer cyber insurance and unique risk management services that influence the ways organizations comply with privacy laws.

The criminalization of offensive, privacy-intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine-country comparative study. We distinguish between voyeurism-centric approaches (focusing largely on nudity and sex) and broader, intrusion-centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing nonconsensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiability, and counter-indicators to prevent over-criminalization. This framework is relevant for protecting visual aspects of privacy in view of individuals' underlying autonomy interests.

In this article, we combine quantitative and qualitative methods to investigate why post-tenure law professors of color and women professors within the US legal academy are differentially dissatisfied with their work lives. Previous social science research has indicated lingering difficulties for professionals from traditionally marginalized groups as they advance to higher levels. Post-tenure law professors have been understudied relative to similar senior-level professionals. Mixed methods allow us to isolate institutional structure and implicit cultural bias as key mediators of this dissatisfaction, converging on issues of respect, voice, and collegiality as crucial. We use the example of the legal academy to show how empirical research can shed important light on the realities of legal professionals—here, the faculty who are training the next generation of US attorneys. Following in the new legal realist tradition, we demonstrate the power of mixed empirical methodologies for grasping social realities pertinent to law.

Sexually violent predator (SVP) statutes define some sex offenders as dangerous enough to be segregated from society, but then require their release into local communities. This article examines how decision makers and community members interpret and respond to this inherent contradiction during disputes over SVP placements. The article departs from traditional moral panic explanations of reactions to sex offenders by linking literature on local siting conflicts to insights from legal mobilization studies in order to understand the origins and features of community opposition to sex offenders. Data from three case studies of SVP placements in California suggest that interpretations of what I call legal signals, or implicit messages embedded in state laws, produced these conflicts. The findings shed new light on the role of law in siting conflicts and collective action by explaining how state laws facilitate communities’ exclusion from siting decisions, encourage local opposition, and disempower already marginalized communities.

Domestic human rights trials are often conceptualized within the context of transition toward democracy. Yet, a recent cascade of trials in Turkey defies this argument. Between 2008 and 2015, Turkish courts oversaw fifteen trials examining individual criminal accountability for human rights violations carried out by the Turkish military during the conflict with the PKK in the 1990s. The cascade of trials has emerged and remained ongoing while the Turkish regime has become steadily more authoritarian. This article explains the emergence of these trials by the redistribution of power among elite actors, which created a window of opportunity allowing for ongoing legal mobilization to result in prosecutions. Drawing on original data from interviews conducted in Turkey between 2014–2015, this study demonstrates the importance of power redistribution for human rights during periods of democratic stagnation, while emphasizing the ability of trials to contribute to the contestation of hegemonic narratives.