annurev lawsocsci-102209-152904

LS06CH02-Brisbin ARI 4 October 2010 15:4

Resistance to LegalityRichard A. Brisbin, Jr.Department of Political Science, West Virginia University, Morgantown, West Virginia26506-6317; email: [email protected]

Annu. Rev. Law Soc. Sci. 2010. 6:25–44

First published online as a Review in Advance onJune 21, 2010

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev-lawsocsci-102209-152904

Copyright c© 2010 by Annual Reviews.All rights reserved

1550-3585/10/1201-0025$20.00

Key Words

conflict, law, litigation, subversion, transgression

Abstract

The contingency of legality creates opportunities for individuals andcollective associations to oppose its norms and requirements. This arti-cle examines the context and dimensions of resistance or opposition tolegality, why resistance occurs, the strategies and tactics used to conductresistance, the outcomes of acts of resistance, and whether resistance isa meaningful social and political activity.

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INTRODUCTION

The legal historian Pierre Legendre (1997,p. 97) has written, “Someone who passes tothe other side, who passes above the spacehumanised by legality, by speech and othersigns, is someone who is mad.” The personwho resists legality might not be insane, butshe appears so angry as to violate a widespreadassumption among the people of most modernregimes. The assumption is that legality—thetexts of the law, the interpretation and en-forcement of them by officials, and widespreadpopular understandings of law and legalpractices—provides a complete, autonomous,and neutral definition of right and wrong(Bourdieu 1987, pp. 819–20, 842–53; Ewick& Silbey 1998, p. 22; Shklar 1964, p. 1). Thisarticle examines the nature of resistance or op-position to legality, why resistance occurs, howit is conducted, and its effect on individuals,society, and politics.

THE CONTINGENCYOF LEGALITY: THE FIELDOF RESISTANCE

Resistance to legality is opposition to one orboth of two dimensions of legality: the consti-tutive and instrumental (Brigham 1996; Ewick& Silbey 1998, pp. 49–53, 230–33; McCann1996, 2006b, pp. xvi–xviii; Sarat & Kearns 1993;Silbey 2005, pp. 326–35). In liberal demo-cratic and some authoritarian regimes, legalityconstitutes the ultimate normative authority.Because of its near-monopoly of belief, legalityis a way of thinking that constitutes how peopleimagine the world to be and what it should be-come. People respect modern legality as a sta-ble, privileged truth that disqualifies moral andreligious values, cultural norms, and politicaland economic practices that contravene mean-ings of legal texts and practices. They simplyimagine that law is an efficacious and ethicallysufficient way to keep social peace and governtheir community (Scheingold 1974, pp. 1–22).As an instrument or method of ordering, thepublic recognizes that the application of legality

must be made within a legal complex or throughan “assemblage of legal practices, legal insti-tutions, statutes, legal codes, authorities, dis-courses, texts, norms, and forms of judgment”(Rose & Valverde 1998, pp. 542–43). People ac-cept that the legal complex is a fair and rationalset of texts, norms, and people with the powerto define right and wrong behavior. With legal-ity embedded in human life, its power becomeshegemonic (Silbey 2005, pp. 333–35).

Despite its hegemony in constituting thenorms of governance, in its everyday practicelegality exhibits indeterminate and contingentqualities. It is not a system of known rules. Forexample, legislators often enact laws that lackprecision, that are deliberately vague to appeasemultiple constituent interests, or that gener-ate unanticipated consequences such as litiga-tion that modifies legislative intentions (Lovell2003). The judicial creation of rules, especiallyin common law regimes, and judicial interpre-tations of legislation introduce variability inthe meaning of law (Levi 1948). The use oflaw to resolve private conflicts depends on therecognition of a legal dispute, the willingnessto pursue action, access to legal services, andthe resources to pursue legal relief (Miller &Sarat 1980–81). Governmental enforcement ofthe law requires that street-level bureaucrats becommitted to legal accountability, be knowl-edgeable of law, and be professionally commit-ted to its enforcement. However, bureaucratswill still often have to adjust the enforcementof legal requirements and rules to the partic-ular contexts they encounter (Hawkins 1984;Lipsky 1980, pp. 81–156). Also, local informalrules supplement the formal law, and the forceof these rules depends on the willingness of per-sons to recognize local traditions such as the useof a chair to control the use of a parking spaceon a public street (Ewick & Silbey 1998, p. 21).

The contingency and indeterminate author-ity of legality afford the opportunity for con-flict about the meaning and application of thehegemonic power of legality and define a spaceor a field for thought and action that chal-lenges its constitutive or instrumental power(Abu-Lugod 1990; Bourdieu 1987; Fitzpatrick

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2008; Hirsch & Lazarus-Black 1994, pp. 6–9;Silbey 2005, pp. 341–46). The question there-fore becomes: When and how will people chal-lenge the legitimacy of legality to resolve prob-lems and dictate appropriate behavior?

Any form of resistance in this field is a so-ciopolitical practice that entails two require-ments: an individual or group recognition of aneed to struggle against legal relationships andan imagination of superior future conditions.It is an effort to transform the grip of powerholders that is often omnipresent in the socialorder. Resistance flaunts the sanctity of law andits interpreters and the subjection of the resisterto its commands. It is iconoclastic (Ewick &Silbey 2003, p. 1331; McCann & March 1996).Second, resistance to legality promotes an al-ternative vision of how the law should governthe allocation of political or economic power.Resisters present a new construction of realityand voice new truths derived from subjugatedideas about rights, justice, and social identitiessuch as gender or race. Through new modesof discourse about the rights and relationships,they try to define the contours of a social andpolitical order, disqualify privileged elements ofthe law, and offer new norms, laws, or rights toreconstitute power relationships.

The identification of resistance to legalityfrom resistance to other exercises of politicaland social power is not always clear-cut. Re-sistance to the law is not opposition to cul-tural norms, such as the practice of separatingmen and women in some religious services. Italso is not opposition to certain political lead-ers or public policies, such as criticism or pub-lic protest of a prime minister’s proposals fora trade policy. Yet, in regimes in which offi-cials claim their policies are lawful, a generalresistance to political authority often becomesmixed with resistance to laws that support thelegitimacy of political acts. Resistance to legal-ity is also ambiguously related to crime. Re-sistance often induces individuals and groupsto violate the criminal law, but the distinc-tion of resistance to legality from criminalityposes interpretive issues. The resister and thecriminal both violate rules designed to protect

established distributions of power and privilegein a society; however, the criminal desires ma-terial goods or personal attention, whereas theresister desires to become included in the com-munity governed by law or other norms (Hallet al. 2008). Nonetheless, because of the mixedmotives of individuals, in some situations thisdistinction is difficult to maintain. For example,in Georgian England poachers violated gamelaws to satisfy personal needs for food and in-come and also to resist the privileges of propertyowners (Hay 1975, Thompson 1975).

WHY DO PEOPLERESIST LEGALITY?

Resistance to law requires a consciousness ofhow legality denies or excludes recognition ofan individual’s desires, is arbitrarily applied,or establishes unjust distributions of power,wealth, or status. As suggested by psycholog-ical studies of human reasoning, consciousnessof these situations stems from emotional feel-ings as well as from rational cognition of exter-nal cultural objects. Psychological studies alsoindicate that feelings or affective judgments ofsituations often precede the cognitive processof assessment of external situations (Murphy& Zajonc 1993; Weiner 2006; Zajonc 1980,1984). Studies that link emotional reactions toacts of resistance to legality are relatively rare.The general argument is that feelings towarda situation, person, or organization stimulateresistance (Goodwin et al. 2001); however, byemploying a theoretical framework of motiva-tion proposed by Weiner (2006), it is possibleto link the diverse studies that offer insights onwhy people resist legality.

Situations

Resistance begins with a situation or a set ofevents. Two general situations of social, po-litical, or economic disadvantage can moti-vate threats from subjugated persons to legalityand the legal complex (Ewick & Silbey 1998,pp. 233–44). First, persons can sometimes per-ceive or gain knowledge of how the constitutive

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quality of legality disadvantages them. This oc-curs when they identify alternative accountsof political, economic, or social reality; recog-nize the suppression of their ethnic, racial, orgender identity; perceive victimization; or ac-quire scientific or legal knowledge that chal-lenges the cultural assumptions about individ-ual rights and social or economic status uponwhich faith in legality rests (Albiston 2006;Kaiser & Major 2006; Kirkpatrick 2008, pp. 91–109; Merry 1995, pp. 16–25; Valverde 2003).Religious leaders, academics, injured activists,or other opinion leaders often must dissemi-nate the perception of disadvantage. In thesecircumstances, people begin to assert that legal-ity socially marginalizes their interests (Beckett& Hoffman 2005, Marshall 2003). Also, some-times legality is socially constituted to excludethem or make them invisible. It casts their char-acter, culture, or interests as out-of-law or out-law, as with Jews in Nazi Germany or slaves inthe Americas, or as irrelevant, as with women insome Middle Eastern regimes (Bourdieu 1987,pp. 828–37; Young 1996, pp. 1–26). Second,discretionary procedures by legal personnel andimprecise legal texts mean that elements of thelegal complex can appear arbitrary. Arbitrari-ness in the instrumental application of legal-ity can also generate a sense of disadvantage.Especially it can contribute to a feeling that thelegal complex has created a situation of neglector abuse of the interests of a group (Ewick &Silbey 1998, pp. 189–91).

Attribution of Causes

People who chose resistance to legality nextmust attribute how some aspect of legalitycaused their situation of social marginality orarbitrary treatment. They also must possesssome appreciation of the contingent powerof the legal complex, be able to recognizeopportunities to counteract its power, andoffer a vision of a better future in which theycan legally realize their emotional desires andinterests and realize an internal sense of justiceand fairness (Ewick & Silbey 2003, pp. 1336–37). Sociolegal studies indicate that persons

who do not attribute the cause of their disad-vantage to legality will adopt cultural normsthat influence them to repress their anxieties(Engel 1984), find other channels for relievingfears or disadvantages (Engel & Munger 2003,Greenhouse 1986), or suppress or sublimatetheir emotions (Bumiller 1988, Kirkland 2008).

Although no comprehensive explanation ofthe attribution of disadvantage exists, followingthe division of legality into constitutive andinstrumental dimensions, some authors (Ewick& Silbey 1992, McCann 2006b, Silbey 2005)suggest that consciousness of legal disadvantageis a social practice that has two interconnecteddimensions: a loss of faith or psychologicalcommitment to law as a legitimate source ofjustice and a cognitive reassessment of theinstrumental utility of laws and legal processes.Social psychological studies of proceduraljustice provide partial insight into how expe-riences in specific legal situations affect thedepth and limits of the popular faith in thelegitimacy of the law. These studies examinepeople’s normative assessments of the work ofcourts and police in various situations, and theyfind evidence that most people feel obligatedto obey the law and the directives of judgesand police officers. The obligation is strongestwhen individuals have had experiences withlaw and courts and felt that the process was fair.For these persons, fairness has two dimensions:They perceive the decision-making process asoffering the opportunity for their represen-tation and influence over its determinations,honesty and ethicality, and clarity and reason-ableness; they also perceive fairness as attentiveor personalized treatment by court personnel.Consequently, a person’s feeling that he or shehas experienced unfair procedures or treatmentand lacks trust in the honesty of the institutionsof the legal complex can generate resistance(Tyler 1988, 1990; Tyler & Huo 2002).

Cognitive assessments of situations that pro-duce outcomes that enforce social marginalitycan also induce resistance. If persons calculatethat the costs of social marginality or the dis-tributive decisions made by legal institutionsdo not benefit their preferred interests or rights

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claims, they might resist. In particular, somescholars have derived from microeconomicand public choice theory the assumption thatresistance to legality conforms to a cognitiveassessment of costs and benefits or utility max-imization. This explanation assumes that theseverity and certainty of loss or the impositionof coercive sanctions determines the extentof compliance with or resistance to legality.Therefore, persons who resist legality arecapable of collecting all necessary information,effectively predicting all costs or benefits ofoptions, and making rational, unemotionaldecisions that avoid the imposition of sanctionson their resistance actions (Becker 1968,Rodgers & Bullock 1976, Scholz 1997).

A cost-benefit or public choice theory expla-nation of persons’ identification of the causesof resistance is more complex and less ratio-nal than that implied by microeconomic the-ory, however. First, cost-benefit explanationsoften neglect the inclusion of the potentialnoneconomic benefits of resistance or noneco-nomic factors that restrict the rationality ofchoice (Bachman et al. 1992, Casey & Scholz1991, Kuperan & Sutinen 1998, Scholz 1997).Persons absolutely dedicated to a moral princi-ple therefore often chose to ignore the real po-tential for costs in certain contexts because of anemotional belief in the rightness of their princi-ple (Tyler 1990, Tyler & Huo 2002). Ambiguityin the law, bargaining about the enforcement ofrules, cooperation in enforcement, and the be-havior of enforcement personnel can mitigatethe realization of the costs of resistance to laws(Edelman et al. 1991, Scholz 1997). Finally, re-sistance might be encouraged or discouragedby one-sided, incomplete, or hyperbolic infor-mation about its costs or benefits (Haltom &McCann 2004, May 2004).

Although these studies provide insights intothe role of emotional and cognitive assessmentsin the identification of the causes of resistance,in some situations people will not attribute thecause of their disadvantage to legality. Severalstudies have found that people are not consciousof the situations in which they might choose thealternative of resistance through or to legality.

They might lack knowledge of rights or con-front corporations, governmental institutions,or lawyers who impede their recognition of le-gal subjection (Sarat 1990). Other reasons asso-ciated with the failure to recognize a situationof injustice and pursue resistance include self-identity, race, gender, experiences with legality,fear of retribution, shame, and other social andpsychological attributes of self-identification(Albiston 2005, 2006; Bumiller 1988, pp. 98–108; Conley & O’Barr 1990; Engel 1984;Engel & Munger 2003; McCann 2006b; Merry1990; Marshall 2003, 2006). However, the rel-ative significance of these reasons for a failureto resist appears to be rooted in a mix of histor-ical experience, personal identity, and culturaland other normative beliefs in varying and oftenunique situations (Abu-Lugod 1990, pp. 52–53;McCann 2008; pp. 524–25, 528–32; Sarat 1990;Silbey 2005, pp. 351–55).

Assignment of Responsibilityand Blame

Resisters will normally assign responsibility forthe cause of their legal disadvantage to a personor organization. Therefore, resistance becomesnot just action against legality but action againstthose believed to have caused their legal dis-advantages. Resisters name as responsible andthen blame those advantaged by legality as theobjects of resistance (Felstiner et al. 1980–81,Coates & Penrod 1980–81, Weiner 1995). Inmany regimes legal procedures create the op-portunity for individuals and organizations tomobilize and tell stories of legal arbitrariness.Through the rules, procedures, and institutionsthat are a part of the legal complex, in both rep-resentative and authoritarian regimes, resisterscan present at least claims about the immoral-ity, inequality, unfairness, or arbitrary neglectof interests or rights by the legal complex orthe regime that controls it (Ewick & Silbey1998, pp. 180–220; Lazarus-Black 1994; Merry1995; Moore 1994; Moustafa 2007, pp. 136–218; Seng 1994; Yngvesson 1993). Given thepotential contingency of legality in these situa-tions, the likelihood of a political struggle about


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who constructs and who interprets the legalityis almost inescapable.

Anger and the Choice of Resistance

Situations and attributions of legal socialmarginality, outlawry, or arbitrariness can gen-erate a variety of emotions (Polletta 2001). Fear,shame, anxiety, or a sense of powerlessness in-cline persons to resignation and quiescence;people sense that they are destined to subjec-tion (Bumiller 1988, pp. 52–77; Gilliom 2001,pp. 69–92). For some persons the specific emo-tional reaction is a religiously grounded fatalism(Engel & Munger 2003, pp. 133–41, 159–65);for others it is a decision to avoid legality, con-stitute the world in terms of Christian harmony,and seek the resolution of conflicts through re-ligious practices such as prayer (Greenhouse1986).

Anger, however, is a different emotion thatcan prompt resistance to legality. Evidence in-dicates that some people are “intuitive prose-cutors” who are more likely to become angrywhen they witness a situation of serious trans-gression of societal and legal norms and believethat the transgressor has escaped punishment(Goldberg et al. 1999). Studies have also foundthat anger, unlike anxiety, induces actions toalleviate an injury or to reduce the risk of in-jury in the future. Angry persons experiencethe negative effect of their situation, associateit with a specific legal action or condition, andseek the reprimand or condemnation of the lawor retaliation against its perpetrators. Yet theyhold optimistic expectations about the satisfac-tion of their desires and interests in the future.The optimism stems from a sense of certaintythat their values are true or just and a sensethat they can control their own lives (Huddyet al. 2007; Lerner et al. 2005; Lerner & Keltner2001; Lerner & Tiedens 2006; Weiner 1995,pp. 14–21, 259–66).

The angry person also engages in a searchfor information and alternative paths of action.Although a cognitive process, the angry per-son’s choice among practices of resistance of-ten relies on the use of heuristic methods and

features a limited assessment of alternatives.Anger “is associated with superficial and pos-sibly rapid decision making, a lower sensitiv-ity to risk, and an orientation toward action”(Huddy et al. 2007, p. 209). Studies have asso-ciated anger with stereotypic judgments, use ofheuristics, limited searches for information, andhostile inferences based on limited knowledge(Huddy et al. 2007, Lerner & Keltner 2001,Lerner & Tiedens 2006). In this respect theprediction of the value of resistance exhibits thebounded rationality depicted in studies of policyand economic choices ( Jones 2001, Kahneman2003, Kahneman & Tversky 1979, Tversky &Kahneman 1973). As with other economic andpolitical choices, the predicted outcome of re-sistance to legality is often based on assessmentsof past events, social norms toward engagementin conflict, and ideological biases toward the lawor rights claims (Albiston 2005). This methodof choice can ignore information about how adecision could cascade into political outcomessuch as anarchy, violence, or more intense sub-jugation. The miscalculation of legally empow-ered opponents’ intentions also can occur whenthe resisters regard them as less trustworthy andmore powerful than they really are—the “devilshift” (Sabatier et al. 1987). Although the mis-calculation and exaggeration of opponents’ in-tentions might spur an individual or groups toresist, alternatively the miscalculation might in-duce quiescence. Finally, available knowledgeof locales, spaces, or institutional contexts, suchas courts, legislatures, public places, or mediathat permit the interaction among resisters orthe expression of resisters’ claims, also can in-fluence the choice to resist or how to resist(Beckett & Hoffman 2005; Hoffmann 2003;Marshall 2005, 2006; Nielsen 2006).

THE PRACTICE OF RESISTANCETO LEGALITY

Once a choice to resist is made, there are twogeneral strategies that resisters of legality mightadopt to convey their claims of social marginal-ity or arbitrariness. An “inside” resistancestrategy features resisters acting through legal

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institutions to voice challenges to the interpre-tation or application of law. Often the adoptionof this strategy means that resisters use legalinstitutions to argue about a denial of rights,an erroneous interpretation of the law, or theflawed enforcement of law. There is no denialof the legitimacy of the regime or its insti-tutions that constructed and enforced the law(Fitzpatrick 2008, pp. xi–xv). Instead, the legal-ity and the legal process become a means ofempowerment. An “outside” resistance strat-egy rejects the use of legality and violates theconstitutive power relations ensconced withinit. Often with reference to moral, religious, orcultural arguments, outside resisters seek eman-cipation from legality and, often, an exit fromthe regime that devised the law.

In many situations resisters will mix thesestrategies and shift among them over time asthey search for an effective means of chang-ing their circumstances. To facilitate each strat-egy, they can employ a mix of specific tactics inan attempt to communicate a subversive storyabout the power of legality. Their story is a so-cial practice that conveys how the hegemony oflaw or the legal complex has fomented socialmarginality or inflicted economic, social, psy-chological, or physical injuries on the resisters.In telling their story, resisters also will argue fora transformation of their legal status. In manyinstances, a person’s story transcends the par-ticular and attempts to mobilize other personsto resist legality (Ewick & Silbey 1995, 2003,pp. 1340–49).

When choosing how to communicate theirresistance stories, several factors shape resisters’choice of tactics. Resisters must first determinehow to proceed. If socially isolated or lack-ing knowledge of similarly situated persons,they might resist alone. Alternatively, they canseek out alliances, patrons, and mass supportfor their cause (McCann 1994, pp. 108–24).Resisters’ choice of tactics depends, second,on cultural frames of reference rooted in his-tory and any collective experiences. In partic-ular, shared experiences and symbols of a reli-gious, racial, or gendered nature and commonknowledge of the successes and failures of past

protests can affect the choice of tactics ( Jasper1997, pp. 69–99, 322–34). Third, the presenceof policy entrepreneurs or movement leaderswho convert personal feelings of anger towardsituations of marginality or arbitrariness intosome form of organized resistance practices caninfluence the choice of resistance. Policy en-trepreneurs identify, characterize, and draw at-tention to cultural, social, political, or economicbiases within legality or the operations of thelegal complex. They also prioritize the aims oftheir resistance, devise stories to communicatetheir cause, offer incentives or disincentives toexpand support for their resistance, and dividesupport for the interpretation and enforcementof legality (Lichbach 1995, pp. 167–76; Lipsky1970, pp. 163–82; McCann 1994, pp. 86–88,124–34). Finally, resisters need to identify theopportunities and to acquire the resources nec-essary for legal change. They require an aware-ness of the availability of access to institutionsfor advancing their interests such as courts,knowledge of what legal and other forms ofprotest action might produce, and the resourcesto promote their interests (money, time, mem-bership, access to media) (McAdam 1999;McCann 1994, pp. 48–86; Pedriana 2004).

Inside Strategy and Tactics

The inside strategy for resistance requires an in-vestment in tactics that pit legality against itself.This form of resistance treats legality as a legiti-mate resource that resisters mobilize to presentstories about the social marginality or the arbi-trariness they experience in legalized contexts.Through stories expressed in legal language,they try to use legality as an instrument toleverage concessions from legal institutions torelieve their disadvantage and achieve their as-pirations (Epp 2008; McCann 1994, pp. 138–79, 2006a, 2008; Zemans 1982). These storiessuggest that a variety of tactics effectuate an in-side strategy of resistance.

Complaint and threat by individuals. In-dividuals can deploy the indeterminate andcontingent qualities of law or its provision of


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expressive rights to resist legality. For example,persons can offer stories to lie to or attemptto mislead law enforcers, can question theirinterpretation of legal rules, can dispute theirclaims of authority, or can physically occupyspace or file documents and formal complaintsthat critique legal authority (Gilliom 2001;Ewick & Silbey 2003, pp. 1350–63). Individ-uals especially can use these tactics in contactswith police officers, inspection agents, andother street-level law enforcers. Complaintsaddressed face-to-face to police personnel,inspection agents, legislators, and firms canexpress an individual’s resistance to their usesof their legal authority and discretion. Lettersto officials can express a vision of justice and lawthat challenges official legal interpretations andenforcement decisions (Lovell 2006). Foot-dragging is another form of individualizedresistance. For example, after a divorce one ofthe parents can subvert the enforcement of thedivorce decree by delays in the payment of childsupport or disputes about child visitation rightsto voice dissatisfaction with the divorce decree.

Threat of litigation is another form of re-sistance. An individual experiencing workplacediscrimination because of a disability or racialor gender discrimination can engage in im-plicit threat of the invocation of legal action.Responding to the uncertainty that the threatof litigation poses, employers will make ad-justments to serve the employee’s interests oradopt an interinstitutional process to alleviatethe threat of lawsuits that resist the claims oflegal authority (Edelman 1990, Edelman et al.1993, Marshall 2005). Threatening legal ac-tion also can induce persons, nonprofit organi-zations, businesses, and governments to adoptpolicies to settle conflicts through negotiationor to avoid latent legal threats and potentialuse of the legal complex for resistance (Barnes& Burke 2006, Epp 2009, Ross & Littlefield1978). Despite the opportunity for these formsof resistance, they usually are not collectiveefforts designed by policy entrepreneurs whochallenge faith in legality. Rather, they aim atrelief of individuals from arbitrary applicationsof the law.

Litigation by individuals. Litigation affordsindividuals the opportunity to resist interpreta-tions and the application of legality by lawyersand legal institutions. Individuals, often poorand female, can use pretrial negotiated settle-ments or the courtroom as opportunities to telltheir stories about their subordinate identityand social position. However, because these in-dividuals usually lack collective or professionalsupport for the construction of their story ofevents, lawyers and judges can often nudge theirtales into legal form and issue legally basedrulings that reinforce the disadvantaged statusof the litigant (Ewick & Silbey 1992; Lazarus-Black 1994; McCann 1994, pp. 118–71; Merry1995, pp. 18–23; Moore 1994; Seng 1994;White 1990; Yngvesson 1993). Also, as illus-trated in a study conducted in the Netherlands,should they win a victory, individuals havedifficulty in securing damages (Van Koppen& Malsch 1991). However, these instances ofresistance still reveal that litigation can serve asa tactic for exacting revenge and gaining poweragainst parties advantaged by legality.

Expressive actions by social movements andinterest groups. Collective efforts can be crit-ical in framing complaints of disadvantage inlegal terms. Complaints about legality and le-gal institutions can develop into collective law-ful practices such as organized letter-writingcampaigns; publications and commentary in themedia; appearances on talk shows; marches, pa-rades, boycotts, and other demonstrations; thelobbying and provision of political campaign as-sistance to legislators; and litigation (Beckett& Hoffman 2005, Espeland 1994, Jasper1997). Political entrepreneurs can develop so-cial movements into organized interest groupsto direct and maintain the resistance, build al-liances and influence public officials, and uti-lize resources, especially legal rights of expres-sion. In many of these actions resisters employa culturally based story of a denial of rights orseek to encourage people to make rights claimsand participate in efforts to secure their rights(McCann 2006a, Polletta 2000).

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Another way for movements or groups toresist is through the creation of institutionsthat can escape laws and legal interpretationsthat marginalize their social identity. Alterna-tive educational institutions such as parochialand Christian schools convey resistance to U.S.judicial decisions that exclude Bible reading,prayer, religious instruction, and creation sci-ence in the public schools. After the U.S.Supreme Court held that the constitutionalright to privacy did not encompass homosexualsodomy (Bowers v. Hardwick 1986), the groupQueer Nation organized alternative practicessuch as the Queer Shopping Network, QueerNights Out, and queer bars to signal their re-sistance to the rejection of their right to sexualprivacy (Bower 1994).

Litigation by collectivities. Social move-ments can also lawfully engage in resis-tance through litigation. In regimes that allowsome popular participation in politics, socialmovements have litigated conditions of socialmarginality and arbitrariness by constructing astory of a denial of rights (Epp 1998). However,litigation is becoming more common as a tacticof resistance in authoritarian regimes (Moustafa2007, Tezcur 2009) and transnational contexts(Boyle & Thompson 2001, Holzmeyer 2009).The incentive to engage in collective litiga-tion as an act of resistance lies in its relativelylow cost and its ability to provide judgmentsthat change the law or convey a message aboutthe legal identity and rights of disadvantagedgroups.

A disadvantaged movement or group is mosteffective when it possesses a consciousness of aclaim of disadvantage that can be framed as adenial of legal rights plus access to adjudicatoryinstitutions and a support structure. A supportstructure includes interest groups or move-ments dedicated to changing law or rights thatcan assist in locating and funding litigationcosts and professional legal expertise over thelong run (Epp 1998). Numerous studies havedetailed how resistance movements in demo-cratic and authoritarian regimes rely uponthe support of “political” and “cause” lawyers

dedicated to resistance litigation (Hallidayet al. 2007; Sarat & Scheingold 1998, 2001,2005, 2006; Scheingold & Sarat 2004). Theseattorneys provide litigants with legal argumentsthat challenge previous judicial interpretationsof the law or file friend-of-the-court briefs withappellate courts in support of changes in legaldoctrines (Epp 2008, pp. 598–600; Epstein& Kobylka 1992). Often resistance litigationrequires a planned campaign to secure a specificlaw or a legal interpretation from an appellatecourt, so the resistance groups must locateforums with judges or rules favorable to theirclaims and political institutions that mightenforce their victories (Epp 1998, pp. 200–4,2008, pp. 597–98). Disadvantaged groups alsocan engage in publicity campaigns and legisla-tive lobbying to mobilize their allies to supportlegislation or constitutional amendments thatwould change a pattern of judicial decisions. Inthe United States such groups have supportedcandidates for judicial elections or appointmentin order to create a judiciary receptive to theirattack on doctrine. Other tactics have includedcampaign contributions to elected officialswho oppose a judicial action that affirms acondition of disadvantage, financial support fora continuation of litigation by a disadvantagedparty, and the release of negative publicityabout a court decision or a judge hostile to theclaims of a disadvantaged group (Brisbin 2009,pp. 218–19, 223–24; Miller 2009, pp. 105–33).

Resistance by public officials. Most of theresistance to legality by public officials is di-rected at judicial interpretations of legislation.Such resistance is common in regimes suchas the United States in which constitutionallyseparated powers and federalism create interin-stitutional political competition. For example,criticism of judicial decisions by U.S. legislatorsoften occurs when they think their response willencourage support for their reelection or policyagenda from voters and campaign contribu-tors. They denounce or support a law, judicialdecision, or other action of the legal complexin speeches, media interviews, and pressreleases or introduce legislation or propose


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constitutional amendments that have littlechance of passage. Legislative efforts to reversejudicial decisions are uncommon and usuallyfocus on unpopular decisions about individualrights or are a result of an invitation by thecourt for the legislature to consider the con-stitutionality of a law that it previously passed.However, legislators can pressure the judiciarythrough legislation that reduces funding forthe courts, changes its jurisdiction, or changesthe selection of its members (Brisbin 2009,pp. 219–21, 223; Canon & Johnson 1999,pp. 116–27; Miller 2009, pp. 15–104, 134–84).

Executives also can resist judicial actions. Aswith legislators, such resistance is not commonand is usually confined to cases in which theannouncement of a response might create apolitical advantage. Beyond public statementsof resistance or support, executives in someregimes can try to change some future decisionsby nominating political allies to the bench orby directing their law enforcement agencies toundertake certain criminal or civil cases or byappearing as a friend of the court to inform ap-pellate judges of the executive’s views (Brisbin2009, pp. 219–21, 223; Canon & Johnson1999, pp. 68–89, 128–31). Besides complaint,executive bureaucrats also have legal means toresist legality. Despite the commands of lawsthey swore to uphold, police officers, prosecu-tors, inspectors, and providers of governmentservices can use their lawful discretion to arrestor cite for civil offenses, drop criminal chargesor civil citations, plea bargain, treat personsdifferently because of the circumstances of theircrime or violation of civil regulations, or denycertain government services (Flemming 1990,Hawkins 1984, Lipsky 1980). An account of lit-igation brought to curtail the abuse of prisonersin Arkansas and Texas describes how state offi-cials used various legal tactics and bureaucraticpractices to delay or frustrate the implemen-tation of court-ordered reform of prison man-agement (Feeley & Rubin 1999, pp. 51–95).

Finally, the judges of lower courts can re-sist appellate court interpretations of legality.This activity can occur when an appellate courtopinion contains ambiguous or vague state-

ments, multiple opinions, and inconsistent useof precedents, when the appellate court lacksthe coercive political authority to enforce itsjudgments on trial court judges, or when localpolitical and social pressures and ideological bi-ases can encourage lower-court judges to resistthe full implementation of an appellate ruling(Canon & Johnson 1999, pp. 29–57). As withother forms of political efforts to resist legality,these actions by the lower judiciary are quiterare.

Outside Strategies and Tactics

As a challenge to power relationships in aregime, an outside strategy rejects the faith inlegality and the legitimacy of the legal com-plex. The challenge consists of stories and ac-tions that transgress the constitutive dimen-sion of the regime’s legality. Consequently, thisresistance strategy often features a “discursivebreakdown” (Wagner-Pacifici 1994, pp. 143–45). The resisters either cannot express theirdisadvantage or legal arbitrariness in legal lan-guage or they use a language with an ideolog-ical, religious, or normative logic that rejectsthe constitutive assumptions of state legality(Brisbin 2002, pp. 208–18; Gilly 1998, pp. 314–27; Speed 2008, pp. 161–73). Often commu-nicated as rights claims, outside tactics rejectthe power of the institutions and texts of le-gality that protect people and institutions thatsocially marginalize or arbitrarily regulate re-sisters’ lives. Resisters can adopt several tacticsas part of an outside strategy of resistance.

Subversion by individuals. Even in repressiveregimes individuals and groups find space to ex-press resistance to the legitimacy of legality, es-pecially the privileges it affords to the wealthy orthe authority it assigns to governmental officials(Scott 1990, pp. 136–82). The homeless candefy the legal control of property by squattingand expose the support of their social marginal-ity by legality. Grumbling about governmentalauthority or procedures in ordinary conversa-tions is often an expression of a cultural hos-tility based on nonlegal values (Gilliom 2001,

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pp. 69–92). Canadian and U.S. television fictionand some reality and talk shows convey folk-tales about criminals commonly “getting off”on “technicalities” and imply the illegitimacyof judicial interpretations of rights and proposeretaliation against an outlaw class (Doyle 2003).Lawyer jokes expose the arbitrariness of the le-gal process (Galanter 2005).

Outright violation of the law by individualresisters who express a rejection of the norma-tive aspects of legality can occur. Articulatingethical or religious justifications in the UnitedStates, cancer sufferers sometimes violate druglaws by using marijuana for medicinal purposes,polygamists ignore bans on their domestic rela-tionships, and persons withhold taxes that fundwars. More commonly, persons resist laws orjudicial decisions that affect their economic sta-tus. For example, the poor violate legal ruleson the receipt and use of government benefitsto earn income for food, clothing, and shel-ter (Gilliom 2001, pp. 89–90). In contract, per-sonal injury, or divorce cases, the losing personor firm continues to resist payment of legallyawarded remedies and frustrate the interests ofthe legally advantaged party (Van Koppen &Malsch 1991).

Collective subversion: civil disobedience.Social movements and interest groups canstep outside legality to criticize it or bypass itsconstitutive authority. Civil disobedience orcollective nonviolent violations of the civil andcriminal law based on moral or religious valueshave long served as a tactic of resistance to le-gality (Thoreau 2004). Examples include illegalstrikes, sit-ins, sleep-ins, and other illegal occu-pations of space, illegal parades and demonstra-tions, and other random illegal protests againstthe symbols of legality, law enforcementofficials, or legally empowered organizations(Brisbin 2002, pp. 142–89; Jasper 1997,pp. 251–66; Lipsky 1970; Thompson 1975). Inthese instances, the resisters chose to violatethe law in a peaceful fashion to draw attentionto their cause and encourage positive politicalresponses to alleviate their disadvantage.

Law-breaking by public officials. Author-itarian political regimes, regimes that divideauthority among distinctive institutions, andregimes in which top officials confront limita-tions in their control of subordinate bureaucratsafford opportunities for resistance to publishedlaw and rights. In authoritarian regimes, the lawis sometimes manipulated by political elites toquell lawful actions of political opponents suchas demonstrations. The authoritarian elites of-ten use a subservient judiciary as an instru-ment for the control of political parties, socialmovements and groups, religions, or govern-mental subordinates’ discretion. Through thejudiciary, the symbolism of the rule of law re-mains in place while the elites restrict claims ofrights or lawful public actions (Ginsburg 2008,Magaloni 2008, Moustafa 2008, Pereira 2008).In regimes that divide authority among distinc-tive institutions, public officials can resist legal-ity, especially when the judiciary defines legalrules in a way that does not serve the politicalinterests of the officials. For example, despiteU.S. Supreme Court rulings, local school offi-cials have ignored its rulings banning prayersin schools. Finally, superior officials confrontlimitations in their control of subordinate bu-reaucratic agents’ willingness to follow the law.For example, it is difficult for superior officialsto control the use of force, corruption, racialprofiling, and other illegal acts that police offi-cers can use to resist constitutional, statutory,and administrative law and structure the socialand political order to suit their interests.

Violence. Persons can choose to engage in vi-olence as resistance in several ways. Individualscan act alone or in small groups against lawsthey consider unjust. For example, to protestlegalized abortion, Eric Rudolph bombed theAtlanta Olympic Park and abortion clinicsbetween 1996 and 1998. To protest laborlaws and injunctions during a coal strike,some persons engaged in unorganized acts ofintimidation of company managers and strike-breakers, and promoted the use of explosives,assaults, and gunfire against company propertyand strikebreakers (Brisbin 2002, pp. 190–207).


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Organized efforts to replace unjust or inef-fective legal authorities, such as vigilantes andlynch mobs, also can employ violence to chal-lenge legality (Kirkpatrick 2008, pp. 39–90).

Mass insurrections against political author-ity often include violent resistance against le-gality. For example, land and labor laws andlegal practices in Chiapas, Mexico, long im-posed a marginal status upon indigenous Indianpeoples (Gilly 1998, pp. 261–90). In 1992, theMexican government changed the constitutionand other laws in ways that further adverselydisadvantaged indigenous people by endingland reform, diminishing rural subsidies, andopening communal lands to privatization. Al-though since 1983 the Zapatista Party (EZLN)had opposed the government and landowners,the legal changes by the government spurredthe willingness of indigenous people to as-sist the EZLN and other indigenous peoples’groups. The Zapatista leaders seized upon thediscontent with the law to develop a militaryarm and establish autonomous governmentsand popular legality in rural towns. In theirappeal to supporters, the Zapatistas and othergroups drew upon a mix of Catholic natural law,liberation theology, customary rights, globalhuman rights discourse, Marxist theory, andstate law to voice the claims for legal recogni-tion of the collective cultural rights of indige-nous people and the rights of women. WhenEZLN guerilla forces seized three large townsin 1994, armed conflict with the Mexican armyensued that resulted in 145 deaths. Althoughnegotiations between the Zapatistas and thegovernment produced a cease-fire, low-levelacts of violence continued between resisters andparamilitary forces reputedly allied with thegovernment. However, after years of delay thegovernment finally enacted laws that addressedsome of the rights claims of the indigenous pop-ulation (Gilly 1998; Harvey 1998, pp. 169–245;Speed 2008; Speed et al. 2006).

Exit. If a resister finds legal options closed andoutside strategies ineffective or unpalatable, afinal tactic is simply to leave the geographicalspace controlled by legality or a legal complex.

For example, during the Vietnam conflict someAmericans resisted compulsory military servicelaws by leaving the country (Hagan 2001). Lawsthat penalize or tax religious dissidents alsohave long encouraged the immigration of thesegroups to regimes tolerant of their beliefs.

THE OUTCOMESOF RESISTANCE

What can resistance to legality achieve? Nocomprehensive theory or methodology existsto assess the outcomes of resistance. Indeed,significant methodological debates about theidentification of the variable of effective ormeaningful outcomes and about the use ofinterpretive and positivist measurement orassessment of outcomes continue to occur(Handler 1978, pp. 34–41; McCann 1996;Rosenberg 1996). What is known?

Most studies examine resistance in whichpeople act within the law and employ the lit-igation tactic. Although many case studies touttangible victories against the powerful by thosewho used litigation and held fast to their con-viction to resist, the durability of these victo-ries is little examined. Studies also argue that,as a tactic of resistance, litigation can producea range of outcomes (Epp 1998, 2008). Somestudies suggest that litigation has an educa-tive effect. It can broaden consciousness of in-equities and arbitrariness inherent in legality,succeed in placing some problems of the disad-vantaged on the political agenda, and pressureadministrators to enforce laws fairly (McCann1994, pp. 180–93, 2006a, pp. 30–34). Litigationcan serve as a catalyst that encourages a disad-vantaged movement or group to seek political,economic, or social gains in other institutionalarenas and encourages proactive institutionalresponses to accommodate the implications ofthe decision (McCann 1994, pp. 278–88, 307–9). It can change the perceptions of legislatorsand regulators toward issues that affect a disad-vantaged class (Mather 1998), result in changesin government administrative practices (Feeley& Rubin 1999), or allow the disadvantaged ac-cess to political institutions (Cichowski 2004).

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With a support structure, policy entrepreneur-ship, and opportunities, resistance movementscan win victories in their cases, initiate a seriesof cases that reshape legality, and induce legisla-tors to enact laws that propagate new policy al-ternatives or readings of the meaning of the law.For example, fear of civil liability actions hasstimulated governments to impose new stan-dards on legalized accountability that requiretheir agencies to protect disadvantaged groupssuch as racial minorities, women, and children(Epp 2009).

Resistance through litigation can mobilizepeople for other forms of resistance, suchas complaint, boycotts, or demonstrations. Itcan create a new awareness of both disadvan-tage and rights that can strengthen a resis-tance movement (Polletta 2000). Through me-dia coverage of litigation in particular, peoplecan acquire knowledge of harms or disadvan-tage, a prerequisite to mobilization into a polit-ical movement (Haltom & McCann 2009). Suc-cessful resistance litigation can stimulate otherdisadvantaged individuals and encourage themto mobilize, develop an organization, and lit-igate the legality that treats them as sociallymarginal or with arbitrariness. It can broadenpublic awareness of disadvantaged groups andencourage public officials to place the prob-lems confronting these groups on the politicalagenda (Handler 1978, pp. 209–22; McCann1994, pp. 227–77). These changes keep alivethe “myth of rights” or the belief that legal ac-tion can foster a more legitimate, democratic,and just politics (Scheingold 1974, pp. 3–79).

However, Rosenberg (2008) has contendedthat even visible litigation campaigns by AfricanAmericans, prochoice women, and gays pro-duced little direct improvement in the con-dition of disadvantage they faced. Althoughscholars have offered evidence that challengesRosenberg’s general thesis on the ineffective-ness of litigation as a means for the empower-ment of disadvantaged groups (McCann 1996,Epp 2009), resisters who engage in litigationface significant barriers to the alleviation oftheir disadvantages. Some barriers arise fromconditions inside a collective resistance move-

ment. Because resistance to legality depends inpart on organized leadership, leaders who usecollective action for personal gain, who can-not control internal discord or factionalism inthe resistance movement or group, who cannotmaintain zeal and voluntarism by members, orwho cannot build and maintain alliances withother movements or groups can undermine re-sistance to legality (Lichbach 1995, pp. 263–72). Internal discord above all can allow extrem-ists to separate themselves from other resistersand adopt tactics that affect external perceptionsof the entire resistance movement ( Jasper 1997,pp. 344–66).

Resistance through litigation can also facestruggles with external interests and unantici-pated consequences that limit its effectiveness(Epp 2008, pp. 602–7). Opponents of thedecision or others adversely affected by the de-cision can frustrate the victory through a rangeof counterresistance or “backlash” actions. Be-cause judges normally assume that people willobey the law, resisters might not anticipate thebarriers to achieve their objectives. The partiesnegatively affected by judicial decisions in favorof resisters can choose the paths of activelyrefusing to comply, passively not complying(perhaps because of a lack of knowledge of thedecision), or superficially complying. In othersituations of legal change, institutional practicesand norms might encourage partial complianceor noncompliance with the law by a corpora-tion or government agency (Kelly 2010). Thenegatively affected parties can also modify theirbehavior to evade full compliance, escape fromthe effects of the decision, or thwart successfulresisters (Barnes & Burke 2006; Gould 2001;McCann 1994, pp. 193–206). For example,during the late 1950s and early 1960s manycommunities reacted to U.S. school desegrega-tion orders with official refusals to comply withcourt rulings. Because they did not face liti-gation of legislative pressures to desegregate,many district officials remained passive and didnot comply. A few districts chose the path ofsuperficial desegregation by devising plans thatadmitted only a few black children to formerlyall-white schools or modified attendance


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policies to limit judicial desegregation man-dates. In urban areas unanticipated white flightand judicial decisions restricting the geographicrange of desegregation remedies limited thevictory of black children. Finally, opponentsof desegregation used protests and acts ofviolence in a series of confrontations withofficials and minorities who won desegregationof schools (McAdam 1999, Marable 2007).Other illustrations of variations of these formsof backlash to successful resistance litigationappear in studies of reactions to U.S. SupremeCourt decisions in favor of women, minorities,and criminal defendants (summarized in Canon& Johnson 1999, pp. 74–87, 106–11).

Among the forms of backlash to resisters,perhaps the form of most significance isthe organization of groups in opposition toresisters’ legal victories. In the United States,this has occurred as conservative, libertarian,and religious groups mobilized to opposejudicial decisions requiring school desegrega-tion, affirmative remedies for disadvantagedminorities, protections for consumers and theenvironment, rights for women and gays andlesbians, and restrictions on religious practicein public places. The opposition groups alsoengaged in lawsuits, supported legislativechanges, and proposed constitutional amend-ments by referenda that would restrict the useof litigation as a tactic of resistance by dis-advantaged persons and social and economicreformers (Hatcher 2005, Pring & Canan1996, Southworth 2008, Teles 2008, Witt &McCorkle 1997). The backlash thus produceda broader policy conflict about claims of rights.

Other than litigation, the outcome of re-sistance strategy and tactics still needs muchmore attention. For the poor, for social out-casts, for the ill-educated, for persons withoutorganized leaders, resources, help from others,or access to attorneys, and for persons with lim-ited knowledge of legality and resistance tac-tics, it appears that resistance as lawful com-plaint or outsider tactics of subversion createsa struggle that can end in frustration (Gilliom2001). Although individuals can improve theircircumstances through actions against the law,

such as complaint, subversion, and the litiga-tion of personal problems, these acts produceisolated and uncoordinated benefits for the re-sister. However, if officials perceive a patternof complaints that might threaten their author-ity or if firms experience the pattern, they candevise practices and procedures to amelioratethe source of resistance (Edelman et al. 1993).Often these alternative dispute-resolution prac-tices displace the disadvantages and anger of po-tential resisters rather than address their con-cerns (Cobb 1997, Harrington & Merry 1988).

Additionally, no systematic analysis existsof the effectiveness of individual and collectivesubversion and civil disobedience in the inau-guration of changes in legality. Such practicesapparently can raise the consciousness of theplight of the legally disadvantaged. Scholarshave credited civil disobedience by MahatmaGandhi and the India Congress Party with dis-crediting laws imposed by British colonialists(Weber 1997). However, the association oflaw-breaking and violence of abolitionist mobs,strikers, revolutionary movements, and partiesoften results in backlash as opponents portraythe resisters as abnormal, evil, terroristic, orposing other threats to public safety (Brisbin2002, pp. 218–29; Kirkpatrick 2008, pp. 91–109). The result can be criminal penalties for in-dividuals or the suppression of the law-breakingby resisters through negotiated settlementsthat revise legal relations between the resistersand the regime (Brisbin 2002, pp. 235–59).

CONCLUSION

Many facets of resistance to legality requirefurther study. Although there are many casestudies of resistance activity, the role of specificsituations, individual attributions of blame, thegenesis of anger, and the choice of individual orcollective responses to associations of legalitywith social marginality and arbitrariness needfurther theoretical development and empiricalanalysis. As revealed by the case studies ofthe practice of resistance, the creativity of thehuman imagination is the primary limitationon the strategies and range of tactics and stories

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that resisters can deploy against legality ( Jasper1997, pp. 11–13). When coupled with the pen-chant of resisters to shift tactics over time andemploy multiple tactics to confront legality,the dynamism and complexity of resistancestrategies have made it difficult to offer a firmlygrounded explanation of why an angry resisterwill choose a particular strategy or tactic. Ad-ditionally, for those who resist ethnic discrim-ination, environmental destruction, warfare,economic injustice, surveillance, and the sub-jection of women to male authority, the political

legitimacy of resistance and the myth of rightswill continue to generate new challenges tolegality and new evidence for analysis. As withprevious acts of resistance, the outcome of theseactions will be difficult to assess. Nonetheless,some of the resisters would agree with UnitedMine Workers President Cecil Roberts.During a strike that violated laws and judicialdecisions protecting coal mine operators, heremarked, “There is nothing wrong with goingto jail when you are trying to change an unjustsystem or an unjust law” (Brisbin 2002, p. 217).

DISCLOSURE STATEMENT

The author is not aware of any affiliations, memberships, funding, or financial holdings that mightbe perceived as affecting the objectivity of this review.

LITERATURE CITED

Abu-Lugod L. 1990. The romance of resistance: tracing transformations of power through Bedouin women.Am. Ethnol. 17:41–55

Albiston C. 2005. Bargaining in the shadow of social institutions: competing discourses and social change inworkplace mobilization of civil rights. Law Soc. Rev. 39:11–49

Albiston C. 2006. Legal consciousness and workplace rights. See Fleury-Steiner & Nielsen 2006, pp. 55–75Bachman R, Paternoster R, Ward S. 1992. The rationality of sexual offending: testing a deterrence/rational

choice conception of sexual assault. Law Soc. Rev. 26:343–72Barnes J, Burke TF. 2006. The diffusion of rights: from law on the books to organizational rights practices.

Law Soc. Rev. 40:493–523Becker G. 1968. Crime and punishment: an economic approach. J. Polit. Econ. 76:169–217Beckett K, Hoffman B. 2005. Challenging medicine: law, resistance, and the cultural politics of childbirth.

Law Soc. Rev. 39:125–70Bourdieu P. 1987. The force of the law: toward a sociology of the juridical field. Transl. R Terdiman. Hastings

Law J. 38:805–53 (From French)Bower LC. 1994. Queer acts and the politics of “direct address”: rethinking law, culture, and community. Law

Soc. Rev. 28:1009–33Boyle EH, Thompson M. 2001. National politics and resort to the European Commission on Human Rights.

Law Soc. Rev. 35:321–44Brigham J. 1996. The Constitution of Interests: Beyond the Politics of Rights. New York: N.Y. Univ. PressBrisbin RA. 2002. A Strike Like No Other Strike: Law and Resistance During the Pittston Coal Strike of 1989–90.

Baltimore, MD: Johns Hopkins Univ. PressBrisbin RA. 2009. Resistance to the judiciary: the boundaries of judicial power. In Exploring Judicial Politics,

ed. MC Miller, pp. 213–30. New York: Oxford Univ. PressBumiller K. 1988. The Civil Rights Society: The Social Construction of Victims. Baltimore, MD: Johns Hopkins

Univ. PressCanon BC, Johnson CA. 1999. Judicial Policies: Implementation and Impact. Washington, DC: CQ PressCasey J, Scholz J. 1991. Beyond deterrence: behavioral decision theory and tax compliance. Law Soc. Rev.

25:821–43Cichowski RA. 2004. Women’s rights, the European Court, and supranational constitutionalism. Law Soc.

Rev. 38:489–512


Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.


Coates D, Penrod S. 1980–81. Social psychology and the emergence of disputes. Law Soc. Rev. 15:655–80Cobb S. 1997. The domestication of violence in mediation. Law Soc. Rev. 31:397–440Conley JM, O’Barr WM. 1990. Rules versus Relationships: The Ethnography of Legal Discourse. Chicago: Univ.

Chicago PressDoyle A. 2003. Arresting Images: Crime and Policing in Front of the Television Camera. Toronto: Univ. Toronto

PressEdelman L. 1990. Legal environments and organizational governance: the expansion of due process in the

American workplace. Am. J. Sociol. 95:1401–40Edelman L, Erlanger H, Lande J. 1993. Internal dispute resolution: the transformation of civil rights in the

workplace. Law Soc. Rev. 27:497–534Edelman L, Petterson S, Chambliss E, Erlanger H. 1991. Legal ambiguity and the politics of compliance:

affirmative action officers’ dilemma. Law Policy 13:73–97Engel D. 1984. The oven bird’s song: insiders, outsiders, and personal injury in an American community. Law

Soc. Rev. 18:549–82Engel D, Munger F. 2003. Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities.

Chicago: Univ. Chicago PressEpp CR. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago:

Univ. Chicago PressEpp CR. 2008. Law as an instrument of social reform. See Whittington et al. 2008, pp. 595–613Epp CR. 2009. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago: Univ.

Chicago PressEpstein L, Kobylka J. 1992. The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill:

Univ. N.C. PressEspeland W. 1994. Legally mediated identity: the National Environmental Policy Act and the bureaucratic

construction of interests. Law Soc. Rev. 28:1149–79Ewick P, Silbey SS. 1992. Conformity, contestation, and resistance: an account of legal consciousness. New

Engl. Law Rev. 26:731–49Ewick P, Silbey SS. 1995. Subversive stories and hegemonic tales: toward a sociology of narrative. Law Soc.

Rev. 29:197–226Ewick P, Silbey SS. 1998. The Common Place of the Law: Stories from Everyday Life. Chicago: Univ. Chicago

PressEwick P, Silbey SS. 2003. Narrating social structure: stories of resistance to legal authority. Am. J. Sociol.

108:1328–72Feeley MM, Rubin EL. 1999. Judicial Policy Making and the Modern State: How the Courts Reformed America’s

Prisons. Cambridge, UK: Cambridge Univ. PressFelstiner WLF, Abel RL, Sarat A. 1980-81. The emergence and transformation of disputes: naming, blaming,

claiming. Law Soc. Rev. 15:631–54Fitzpatrick P. 2008. Law and Resistance. Burlington, VT: AshgateFlemming R. 1990. The political styles and organizational strategies of American prosecutors: examples from

nine courthouse communities. Law Policy 12:25–50Fleury-Steiner B, Nielsen LB, eds. 2006. The New Civil Rights Research: A Constitutive Approach. Burlington,

VT: AshgateGalanter M. 2005. Lowering the Bar: Lawyer Jokes and Legal Culture. Madison: Univ. Wis. PressGilliom J. 2001. Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. Chicago: Univ. Chicago

PressGilly A. 1998. Chiapas and the rebellion of the enchanted world. In Rural Revolt in Mexico: U.S. Intervention and

the Domain of Subaltern Politics, ed. D Nugent, pp. 261–333. Durham, NC: Duke Univ. Press. Expandeded.

Ginsburg T. 2008. Administrative law and the judicial control of agents in authoritarian regimes. See Ginsburg& Moustafa 2008, pp. 58–72

Ginsburg T, Moustafa T, eds. 2008. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge,UK: Cambridge Univ. Press

40 Brisbin

Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.


Goldberg JH, Lerner J, Tetlock P. 1999. Rage and reason: the psychology of the intuitive prosecutor. Eur. J.Soc. Psychol. 29:781–95

Goodwin J, Jasper JM, Polletta F. 2001. Introduction: why emotions matter. In Passionate Politics: Emotionsand Social Movements, ed. J Goodwin, JM Jasper, F Polletta, pp. 1–24. Chicago: Univ. Chicago Press

Greenhouse C. 1986. Praying for Justice: Faith, Order, and Community in an American Town. Ithaca, NY: CornellUniv. Press

Gould JB. 2001. The precedent that wasn’t: college hate speech codes and the two faces of legal compliance.Law Soc. Rev. 35:345–92

Hagan J. 2001. Northern Passage: American Vietnam War Resisters in Canada. Cambridge, MA: Harvard Univ.Press

Hall S, Winlow S, Ancrum C. 2008. Criminal Identities and Consumer Culture: Crime, Exclusion and the NewCulture of Narcissism. Cullompton, UK: Willan

Halliday TC, Karpik L, Feeley MM, eds. 2007. Fighting for Political Freedom: Comparative Studies of the LegalComplex and Political Liberalism. Oxford: Hart

Haltom W, McCann M. 2004. Distorting the Law. Chicago: Univ. Chicago PressHaltom W, McCann M. 2009. Framing fast-food litigation: tort claims, mass media, and the politics of

responsibility in the United States. In Fault Lines: Tort Law as a Cultural Practice, ed. DM Engel,M McCann, pp. 97–115. Stanford, CA: Stanford Univ. Press

Handler JF. 1978. Social Movements and the Legal System: A Theory of Law Reform and Change. New York:Academic

Harrington CB, Merry SE. 1988. Ideological production: the making of community mediation. Law Soc. Rev.22:709–35

Harvey N. 1998. The Chiapas Rebellion: The Struggle for Land and Democracy. Durham, NC: Duke Univ. PressHatcher L. 2005. Economic libertarians, property, and institutions: linking activism, ideas, and identities

among property rights advocates. See Sarat & Scheingold 2005, pp. 112–46Hawkins K. 1984. Environment and Enforcement: Regulation and the Social Definition of Pollution. Oxford:

ClarendonHay D. 1975. Poaching and the game laws on Cannock Chase. In Albion’s Fatal Tree: Crime and Society in

Eighteenth-Century England, ed. D Hay, P Linebaugh, JG Rule, EP Thompson, pp. 189–253. New York:Pantheon

Hirsch SF, Lazarus-Black M. 1994. Introduction/performance and paradox: exploring the law’s role in hege-mony and resistance. See Lazarus-Black & Hirsch 1994, pp. 1–31

Hoffmann EA. 2003. Legal consciousness and dispute resolution: different disputing behavior at two similartaxicab companies. Law Soc. Inq. 28:691–716

Holzmeyer C. 2009. Human rights in an era of neoliberal globalization: the Alien Tort Claims Act andgrassroots mobilization in Doe v. Unocal. Law Soc. Rev. 43:271–304

Huddy L, Feldman S, Cassese E. 2007. On the distinct political effects of anxiety and anger. In The AffectEffect: Dynamics of Emotion in Political Thinking and Behavior, ed. WR Neuman, GE Marcus, AN Crigler,M MacKuen, pp. 202–30. Chicago: Univ. Chicago Press

Jasper JM. 1997. The Art of Moral Protest: Culture, Biography, and Creativity in Social Movements. Chicago: Univ.Chicago Press

Jones BD. 2001. Politics and the Architecture of Choice: Bounded Rationality and Governance. Chicago: Univ.Chicago Press

Kahneman D. 2003. A perspective on judgment and choice: mapping bounded rationality. Am. Psychol. 58:697–720

Kahneman D, Tversky A. 1979. Prospect theory: an analysis of decision under risk. Econometrica 47:263–91Kaiser CR, Major B. 2006. A social psychological perspective on perceiving and reporting discrimination. Law

Soc. Inq. 31:801–30Kelly EL. 2010. Failure to update: an institutional perspective on noncompliance with the Family and Medical

Leave Act. Law Soc. Rev. 44:33–66Kirkland A. 2008. Think of the hippopotamus: rights consciousness in the fat acceptance movement. Law Soc.

Rev. 43:397–431


Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.


Kirkpatrick J. 2008. Uncivil Disobedience: Studies in Violence and Democratic Politics. Princeton, NJ: PrincetonUniv. Press

Kupernan K, Sutinen JG. 1998. Blue water crime: deterrence, legitimacy, and compliance in fisheries. LawSoc. Rev. 32:309–38

Lazarus-Black M. 1994. Slaves, masters, and magistrates: law and the politics of the resistance in the BritishCaribbean, 1736–1834. See Lazarus-Black & Hirsch 1994, pp. 252–81

Lazarus-Black M, Hirsch SF, eds. 1994. Contested States: Law, Hegemony, and Resistance. New York: RoutledgeLegendre P. 1997. Law and the Unconscious: A Legendre Reader. Ed. transl. P Goodrich with A Pottage, A

Schutz. New York: St. Martin’s (From French)Lerner JS, Gonzalez RM, Small DA, Fischhoff B. 2005. Effects of fear and anger on perceived risks of terrorism:

a national field experiment. In Psychological Responses to the New Terrorism: A NATO-Russia Dialogue, ed. SWessely, VN Krasnov, pp. 67–79. Fairfax, VA: IOS Press

Lerner JS, Keltner D. 2001. Fear, anger, and risk. J. Personal. Soc. Psychol. 81(1):146–59Lerner JS, Tiedens LZ. 2006. Portrait of the angry decision maker: how appraisal tendencies shape anger’s

influence on cognition. J. Behav. Decis. Mak. 19:115–37Levi EH. 1948. An Introduction to Legal Reasoning. Chicago: Univ. Chicago PressLichbach MI. 1995. The Rebel’s Dilemma. Ann Arbor: Univ. Mich. PressLipsky M. 1970. Protest in City Politics: Rent Strikes, Housing, and the Power of the Poor. Chicago: Rand McNallyLipsky M. 1980. Street-Level Bureaucracy: Dilemmas of Individuals in Public Service. New York: Russell Sage

Found.Lovell GI. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. Cambridge,

UK: Cambridge Univ. PressLovell GI. 2006. Justice excused: the deployment of law in everyday political encounters. Law Soc. Rev. 40:283–

324Magaloni B. 2008. Enforcing the autocratic political order and the role of courts: the case of Mexico. See

Ginsburg & Moustafa 2008, pp. 180–206Marable M. 2007. Race Reform, and Rebellion: The Second Reconstruction and Beyond in Black America, 1945–2006.

Jackson: Univ. Miss. Press. 3rd ed.Marshall A. 2003. Injustice frames, legality, and the everyday construction of sexual harassment. Law Soc. Inq.

28:659–89Marshall A. 2005. Idle rights: employees’ rights consciousness and the construction of sexual harassment. Law

Soc. Rev. 39:83–123Marshall A. 2006. Consciousness in context: employees’ views of sexual harassment grievance procedures. See

Fleury-Steiner & Nielsen 2006, pp. 101–16Mather L. 1998. Theorizing about trial courts: lawyers, policymaking, and tobacco litigation. Law Soc. Inq.

23:897–940May PJ. 2004. Compliance motivations: affirmative and negative bases. Law Soc. Rev. 38:41–68McAdam D. 1999. Political Process and the Development of Black Insurgency 1930–1970. Chicago: Univ. Chicago

Press. Rev.McCann MW. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: Univ.

Chicago PressMcCann MW. 1996. Causal versus constitutive explanations (or, on the difficulty of being so positive . . .).

Law Soc. Inq. 21:457–82McCann MW. 2006a. Law and social movements: contemporary perspectives. Annu. Rev. Law Soc. Sci. 2:17–38McCann MW. 2006b. On legal rights consciousness: a challenging analytical tradition. See Fleury-Steiner &

Nielsen 2006, pp. ix–xxxMcCann MW. 2008. Litigation and legal mobilization. See Whittington et al. 2008, pp. 522–40McCann MW, March T. 1996. Law and everyday forms of resistance: a socio-political assessment. Stud. Law

Polit. Soc. 15:207–36Merry SE. 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago:

Univ. Chicago PressMerry SE. 1995. Resistance and the cultural power of law. Law Soc. Rev. 29:11–26

42 Brisbin

Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.


Miller MC. 2009. The View of Courts from the Hill: Interactions between Congress and the Federal Judiciary.Charlottesville: Univ. Press Va.

Miller R, Sarat A. 1980–81. Grievances, claims, and disputes: assessing the adversary culture. Law Soc. Rev.15:525–66

Moore EP. 1994. Law’s patriarchy in India. See Lazarus-Black & Hirsch 1994, pp. 89–117Moustafa T. 2007. The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt.

Cambridge, UK: Cambridge Univ. PressMoustafa T. 2008. Law and resistance in authoritarian states: the judicialization of politics in Egypt. See

Ginsburg & Moustafa 2008, pp. 132–55Murphy ST, Zajonc RB. 1993. Affect, cognition, and awareness: affective priming with optimal and suboptimal

stimulus exposures. J. Personal. Soc. Psych. 64:723–39Nielsen LB. 2006. The power of “place”: public space and rights consciousness. See Fleury-Steiner & Nielsen

2006, pp. 217–31Pedriana N. 2004. Help wanted NOW: legal resources, the women’s movement, and the battle over sex-

segregated job advertisements. Soc. Probl. 51:182–201Pereira AW. 2008. Of judges and generals: security courts under authoritarian regimes in Argentina, Brazil,

and Chile. See Ginsburg & Moustafa 2008, pp. 23–57Polletta F. 2000. The structural context of novel rights claims: southern civil rights organizing, 1961–1966.

Law Soc. Rev. 34:367–406Polletta F. 2001. The laws of passion. Law Soc. Rev. 35:467–93Pring GW, Canan P. 1996. SLAPPS: Getting Sued for Speaking Out. Philadelphia: Temple Univ. PressRodgers HR, Bullock CS. 1976 . Coercion to Compliance. Lexington: Lexington BooksRose N, Valverde M. 1998. Governed by law? Soc. Legal Stud. 7:541–51Rosenberg GN. 1996. Positivism, interpretivism and the study of law. Law Soc. Inq. 435–55Rosenberg GN. 2008. The Hollow Hope: Can Courts Bring About Social Change? Chicago: Univ. Chicago Press.

2nd ed.Ross HL, Littlefield NO. 1978. Complaint as a problem solving mechanism. Law Soc. Rev. 12:199–216Sabatier P, Hunter S, McLaughlin S. 1987. The devil shift: perceptions and misperceptions of opponents.

Western Polit. Q. 40:449–76Sarat A. 1990. “. . .The law is all over”: power, resistance and the legal consciousness of the welfare poor. Yale

J. Law Human. 2:343–79Sarat A, Kearns TR. 1993. Beyond the great divide: forms of legal scholarship and everyday life. In Law in

Everyday Life, ed. A Sarat, TR Kearns, pp. 21–61. Ann Arbor: Univ. Mich. PressSarat A, Scheingold S, eds. 1998. Cause Lawyering: Political Commitments and Professional Responsibility. New

York: Oxford Univ. PressSarat A, Scheingold SA, eds. 2001. Cause Lawyering and the State in a Global Era. New York: Oxford Univ.

PressSarat A, Scheingold SA, eds. 2005. The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice.

Stanford, CA: Stanford Univ. PressSarat A, Scheingold SA, eds. 2006. Cause Lawyers and Social Movements. Stanford, CA: Stanford Univ. PressScheingold SA. 1974. The Politics of Rights: Lawyers, Public Policy, and Political Change. New Haven, CT: Yale

Univ. PressScheingold SA, Sarat A, eds. 2004. Something to Believe In: Politics, Professionalism, and Cause Lawyering. Stanford,

CA: Stanford Univ. PressScholz JT. 1997. Enforcement policy and corporate misconduct: the changing perspective of deterrence theory.

Law Contemp. Probl. 60:253–68Scott JC. 1990. Domination and the Arts of Resistance: Hidden Transcripts. New Haven, CT: Yale Univ. PressSeng YJ. 1994. Standing at the gates of justice: women in the law courts of early sixteenth-century Uskudar,

Istanbul. See Lazarus-Black & Hirsch 1994, pp. 184–206Shklar JN. 1964. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard Univ. PressSilbey SS. 2005. After legal consciousness. Annu. Rev. Law Soc. Sci. 1:323–68Southworth A. 2008. Lawyers of the Right: Professionalizing the Conservative Coalition. Chicago: Univ. Chicago

Press


Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.


Speed S. 2008. Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas. Stanford, CA: StanfordUniv. Press

Speed S, Hernandez Castillo RA, Stephen L, eds. 2006. Dissident Women: Gender and Cultural Politics in Chiapas.Austin: Univ. Tex. Press

Teles SM. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton, NJ:Princeton Univ. Press

Tezcur GM. 2009. Judicial activism in perilous times: the Turkish case. Law Soc. Rev. 43:305–36Thompson EP. 1975. Whigs and Hunters: The Origin of the Black Act. New York: Pantheon BooksThoreau HD. 2004. The Higher Law: Thoreau on Civil Disobedience and Reform, ed. W Glick. Princeton, NJ:

Princeton Univ. PressTversky A, Kahneman D. 1973. Availability: a heuristic for judging frequency and probability. Cognition

5:207–32Tyler TR. 1988. What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures.

Law Soc. Rev. 22:103–35Tyler TR. 1990. Why People Obey the Law. New Haven, CT: Yale Univ. PressTyler TR, Huo YJ. 2002. Trust in the Law: Encouraging Public Cooperation with the Police and Courts. New York:

Russell Sage Found.Valverde M. 2003. Law’s Dream of a Common Knowledge. Princeton, NJ: Princeton Univ. PressVan Koppen PJ, Malsch M. 1991. Defendants and one-shotters win after all: compliance with court decisions

in civil cases. Law Soc. Rev. 25:803–20Wagner-Pacifici R. 1994. Discourse and Destruction: The City of Philadelphia versus MOVE. Chicago: Univ.

Chicago PressWeber T. 1997. On the Salt March: The Historiography of Gandhi’s March to Dandi. New Delhi: HarperCollinsWeiner B. 1995. Judgments of Responsibility: A Foundation for a Theory of Social Conduct. New York: GuilfordWeiner B. 2006. Social Motivation, Justice, and the Moral Emotions: An Attributional Approach. Mahwah, NJ:

Lawrence ErlbaumWhite LE. 1990. Subordination, rhetorical survival skills, and Sunday shoes: notes on the hearing of Mrs. G.

Buffalo Law Rev. 38:1–58Whittington K, Kelemen RD, Caldeira G, eds. 2008. The Oxford Handbook of Law & Politics. New York: Oxford

Univ. PressWitt S, McCorkle S, eds. 1997. Anti-Gay Rights: Assessing Voter Initiatives. Westport, CT: PraegerYngvesson B. 1993. Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England Court. New

York: RoutledgeYoung A. 1996. Imaging Crime: Textual Outlaws and Criminal Conversations. London: SageZajonc RB. 1980. Feeling and thinking: Preferences need no inferences. Am. Psychol. 35:151–75Zajonc RB. 1984. On the primacy of affect. Am. Psychol. 39:117–23Zemans FK. 1982. Framework for analysis of legal mobilization: a decision-making model. Am. Bar Found.

Res. J. 7:989–1071

44 Brisbin

Ann

u. R

ev. L

aw. S

oc. S

ci. 2

010.

6:25

-44.

Dow

nloa

ded

from

ww

w.a

nnua

lrev

iew

s.or

gby

CSI

C -

Con

sejo

Sup

erio

r de

Inv

estig

acio

nes

Cie

ntif

icas

on

06/1

0/11

. For

per

sona

l use

onl

y.

LS06-frontmatter ARI 29 September 2010 12:22

Annual Review ofLaw and SocialScience

Volume 6, 2010Contents

Law and Society: Project and PracticeRichard L. Abel � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Resistance to LegalityRichard A. Brisbin, Jr. � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �25

Specters of Foucault in Law and Society ScholarshipMariana Valverde � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �45

Law and Cognitive NeuroscienceOliver R. Goodenough and Micaela Tucker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �61

The Law’s Use of Brain EvidenceJay D. Aronson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �93

Psychological Syndromes and Criminal ResponsibilityChristopher Slobogin � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 109

On the Politics of Imprisonments: A Review of Systematic FindingsDavid Jacobs and Aubrey L. Jackson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 129

Social Historical Studies of Women, Crime, and CourtsMalcolm M. Feeley and Hadar Aviram � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 151

The Nexus of Domestic Violence Reform and Social Science:From Instrument of Social Change to Institutionalized SurveillanceKristin Bumiller � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 173

Law and Culture in a Global Context: Interventions to EradicateFemale Genital CuttingElizabeth Heger Boyle and Amelia Cotton Corl � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 195

The Law and Economics of Bribery and ExtortionSusan Rose-Ackerman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 217

The Politics of Crime, Punishment, and Social Order in East AsiaDavid Leheny and Sida Liu � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 239

Human Rights and Policing: Exigency or Incongruence?Julia Hornberger � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 259

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South African Constitutional Jurisprudence: The First Fifteen YearsD.M. Davis � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 285

After the Rights Revolution: Bills of Rights in the Postconflict StateSujit Choudhry � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 301

The Gatehouses and Mansions: Fifty Years LaterRichard A. Leo and K. Alexa Koenig � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 323

The Strategic Analysis of Judicial DecisionsLee Epstein and Tonja Jacobi � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341

Environmental Law and Native American LawEve Darian-Smith � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 359

The Mass Media, Public Opinion, and Lesbian and Gay RightsDaniel Chomsky and Scott Barclay � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 387

Happiness Studies and Legal PolicyPeter Henry Huang � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 405

Insurance in Sociolegal ResearchTom Baker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 433

The Debate over African American ReparationsJohn Torpey and Maxine Burkett � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 449

Comparative Studies of Law, Slavery, and Race in the AmericasAlejandro de la Fuente and Ariela Gross � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 469

Understanding Law and Race as Mutually Constitutive: An Invitationto Explore an Emerging FieldLaura E. Gomez � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 487

The Comparative Politics of Carbon TaxationKathryn Harrison � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 507

Capitalism, Governance, and Authority: The Case of Corporate SocialResponsibilityRonen Shamir � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 531

Toward a New Legal Empiricism: Empirical Legal Studies and NewLegal RealismMark C. Suchman and Elizabeth Mertz � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 555

Empirical Legal Scholarship in Law ReviewsShari Seidman Diamond and Pam Mueller � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 581

Bureaucratic Ethics: IRBs and the Legal Regulation of HumanSubjects ResearchCarol A. Heimer and JuLeigh Petty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 601

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Conflict Resolution in OrganizationsCalvin Morrill and Danielle S. Rudes � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 627

On Law, Organizations, and Social MovementsLauren B. Edelman, Gwendolyn Leachman, and Doug McAdam � � � � � � � � � � � � � � � � � � � � � � � � 653

Indexes

Cumulative Index of Contributing Authors, Volumes 1–6 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 687

Cumulative Index of Chapter Titles, Volumes 1–6 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 689

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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AR392-FM ARI 30 September 2009 19:8

Annual Review ofLaw and SocialScience

Volume 5, 2009Contents

Morality in the Law: The Psychological Foundations of Citizens’Desires to Punish TransgressionsJohn M. Darley � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Experimental Law and EconomicsRachel Croson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �25

The Challenge of Empirical Research on Business Compliancein Regulatory CapitalismChristine Parker and Vibeke Nielsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �45

Welfare, Workfare, and Citizenship in the Developed WorldJoel F. Handler � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �71

Willpower and Legal PolicyLee Anne Fennell � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �91

More Religion, Less Crime? Science, Felonies, and theThree Faith FactorsJohn J. DiIulio, Jr. � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 115

The Political Economy of ProsecutionSanford C. Gordon and Gregory A. Huber � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 135

Lineups and Eyewitness IdentificationAmy-May Leach, Brian L. Cutler, and Lori Van Wallendael � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 157

Punitive DamagesNeil Vidmar and Matthew W. Wolfe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 179

Does the Process of Constitution-Making Matter?Tom Ginsburg, Zachary Elkins, and Justin Blount � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 201

The New Legal PluralismPaul Schiff Berman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 225

Global Legal PluralismRalf Michaels � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 243

Recursivity of Global Normmaking: A Sociolegal AgendaTerence C. Halliday � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 263

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AR392-FM ARI 30 September 2009 19:8

Rethinking Sovereignty in International LawAntony Anghie � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 291

Does Torture Work? A Sociolegal Assessment of the Practicein Historical and Global PerspectiveLisa Hajjar � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 311

The Empirical Study of Terrorism: Social and Legal ResearchGary LaFree and Gary Ackerman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 347

Public Support for Civil Liberties Pre- and Post-9/11John L. Sullivan and Henriet Hendriks � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 375

The Expanding Purview of Cultural Properties and Their PoliticsRosemary J. Coombe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 393

Indexes

Cumulative Index of Contributing Authors, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 413

Cumulative Index of Chapter Titles, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 415

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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annurev lawsocsci-102209-152904

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