Law and Social Inquiry-Journal of the American Bar Foundation最新文献

This article examines constitutional innovation through the case study of the emergence of animal protection in Egypt's 2014 Constitution. Egypt's provision, which is a state obligation to provide al-rifq bi-l-hayawan (kindness to animals), was adopted in Article 45 as part of the country's second constitution following the 2011 revolution that ousted President Hosni Mubarak. Three aspects proved crucial to the adoption of the provision: a decision by animal protection activists to influence the constitutional process; the ability of citizens to convey their ideas to the constitutional drafters, albeit in a limited way; and, most importantly, the use of frame bridging. The activists and then the constitutional drafters presented the new cause of constitutional animal protection in terms of well-established areas of social, and constitutional, concern in the country, including Islamic law, women's rights, human rights, and the protection of the environment.

This study explores the role of corporate lawyers in the construction and operation of a key area of the Brazilian economy over a thirty-year period. It looks at three periods in the history of the Brazilian telecoms sector: the fall of state monopoly; global restructuring, neoliberalism, and privatization; and the recent resurgence of state activism. In the first two periods, lawyers worked to facilitate privatization and to create a lightly regulated market for telecoms services that attracted foreign capital. Things changed, however, when the industry was faced with new industrial and social policies. In this period, lawyers oscillated between resisting government intrusion and negotiating engagement with regulators. This sequence of events encompasses changes in the field of state power, hierarchies in the legal profession, and core-periphery relations, which invite new syntheses of existing theoretical traditions about law, lawyers, and capitalist development in emerging economies.

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday, Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp, Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein, A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo-American law.

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

In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested “attractive nuisance” doctrine illustrates turn-of-the-twentieth-century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity to understand danger and to exert self-control. Although at first courts in attractive nuisance cases perceived children as innocent, irrational “butterflies,” they gradually reconceived child plaintiffs to be rational, risk-bearing individuals, a change reflected and accelerated by the Safety First campaign launched by railroad corporations. This reframing of children's ability to bear risk created the standard of the “reasonable child,” which transferred responsibility for industrial accidents to children themselves. Although by the 1930s the attractive nuisance doctrine had been widely accepted, in practice the “reasonable child” standard posed a difficult hurdle for child plaintiffs to overcome.

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