Thursday, February 10, 2011

Of Interest in Law & Society Review

Law & Society, Vol. 44, No. 3/4 (Sept./Dec. 2010) includes articles and a review of interest to legal historians.

Rachel F. Moran, dean of the University of California, Los Angeles, and an expert on education law and inequality, published “What Counts As Knowledge? A Reflection on Race, Social Science, and the Law.” Here is the abstract.
In the years since the U.S. Supreme Court handed down Brown v. Board of Education (1954), most discussions of the case have focused on whether it was effective in promoting lasting equality of opportunity in the public schools. Although this profoundly important question dominates retrospectives on Brown, another unresolved controversy relates to whether the ruling has altered in any fundamental way the role of social science evidence in constitutional litigation. More than 50 years later, substantial disagreement persists about whether this kind of research has played or should play any important role in the jurisprudence of race. Today, social scientists face increasing doubts about their neutrality and objectivity, struggle to be heard in a marketplace of ideas increasingly flooded with information of questionable quality, and encounter growing resistance to the notion that expertise provides a proper foundation for legal decisionmaking. For those who still believe that social science has a role to play in advancing racial justice, the strategy used in Brown can no longer be taken for granted. The time is ripe to reassess what counts as knowledge so that social science is not increasingly marginalized in courts of law.
The full article is here.

Heather Schoenfeld, a postdoctoral fellow at Northwestern University School of Law whose work focuses on the historical antecedents of mass incarceration in the United Sates, published “Mass Incarceration and the Paradox of Prison Conditions Litigation.” Here is the abstract.

In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order. In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates' lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.

The full article is here

Taunya Lovell Banks, Professor of Law, University of Maryland, published a Review of the acclaimed, What Comes Naturally: Miscegenation Law and the Making of Race in America. By Peggy Pascoe (Oxford, 2009). The review is available at