What I learned at LSA

I’ve been attending the annual meeting of the Law & Society Association off and on for thirty years. It’s always been one of my favorite academic conferences. LSA is interdisciplinary to the core, it draws more international attendees than some of the political science conferences I attend, and it’s got more gender and racial diversity as well.

It’s also just got a different vibe than your typical academic conference. Maybe this year’s free tote bag captures it:

The increasingly international conference has been particularly appealing to me as my own research has shifted from a U.S. to a global focus over the past couple decades. In recent years, most of the panels I’ve attended have been associated with the Project on Autocratic Legalism, from which I’ve learned a great deal about the uses and abuses of law by autocratizing governments worldwide. PAL isn’t active at this year’s conference, so my schedule has been more of a grab bag, but here are some things I learned. It’s a big conference, with multiple concurrent sessions, so this report represents just my own very partial take.

I attended a panel in which the new editorial team of the Law & Society Review reported on their vision for the journal. I’ve got a soft spot for LSR because it’s the home of what is probably my most widely read paper. It’s a tremendous resource for the field, and I appreciate the willingness of the new team to take on the challenging task of shepherding it through difficult times. They shared a lot of details about their strategies for dealing with the proliferation of both AI-generated manuscripts and AI-generated peer reviews. But more important for me was hearing about their vision for preserving the rich interdisciplinary character of the journal while also preserving the coherence of sociolegal research as a field of study. It’s not an easy balance to strike.

One of my favorite parts of the conference is the many “author meets readers” panels that announce, celebrate, and sometimes critique newly published books. The authors have often been working on these books for a full decade, so the celebration is well deserved. And it’s a great opportunity to learn about new works that may not already have been on my radar.

I made it to two book panels this year, focused on Theresa Squatrito’s Judging Under Constraint and Jessica Greenberg’s Justice in the Balance. Both books are about international courts, with Squatrito examining the politics of judicial deference on the East African Court of Justice, the African Court of Human and People’s Rights, and the Carribean Court of Justice, and Greenberg offering a legal anthropology of the European Court of Human Rights (ECtHR).

I learned that international courts exhibit varying levels of deference. That is, some courts are more likely than others to reject human rights claims on the grounds that the domestic state actors in question have struck a reasonable balance that international judges should not second guess. On Squatrito’s account, levels of international judicial deference vary with both the formal independence of the court and the level of fragmentation among the member states. If the states mostly disagree with one another, it will be harder for them to sanction unwanted action by the court; without fear of repercussion, the judges may be more willing to rule against state actors. (This finding is consistent with the literature on domestic apex courts.) These explanatory factors vary at the court level, but in the Q&A at Squatrito’s panel, we also discussed the possibility that international courts defer more fully to some states in their jurisdiction than to others. (And also whether deference varies depending on which state institution was responsible for the challenged policy—e.g., domestic courts v. legislatures.)

This conversation was helpful to my own work, as I have found that the European Court defers much more to speech-restricting policies adopted by stable democracies than to otherwise similar policies adopted by backsliding democracies or autocracies. This argument will appear in my forthcoming book on free speech and democratic backsliding.

Greenberg, for her part, draws on extensive ethnographic field work in Strasbourg, including interviews with ECtHR judges and advocates, to explore the internal bureaucratic workings of the world’s most influential human rights court. As panelist Leo Coleman said, seeing how the sausage is made is not reassuring.

Greenberg quoted one interlocutor who described the Court’s mission not as doing justice per se, but as establishing the conditions enabling others to pursue justice. I rarely read legal anthropology, but I’m excited to read Justice in the Balance to learn more about the internal transmission of this institutional mission to each new generation of judges. Here again, there was some helpful conversation about the Court’s differential treatment of cases from different parts of Europe, with Greenberg suggesting that ECtHR staff tend to classify cases from Eastern Europe and other states on Europe’s periphery as legally less interesting, partly because of their repetitive nature. As a result, these cases tend to get funneled into single-judge, non-precedential decision procedures. The panelists noted that the ECtHR’s interventions in Turkey and Eastern Europe bear some resemblance to the Warren Court’s interventions in the U.S. South—interventions that often advanced the cause of democracy and human rights, but only because the judges viewed the region as an uncivilized backwater. In both contexts, this dynamic raised significant questions about the judicial willingness to police human rights violations at the center as well as the periphery.

Another great panel was one honoring the legacy of Christine Harrington. Harrington is a longtime leader in the Law & Society Association (which I already knew), an influential scholarly critic of alternative dispute resolution (which I also knew), and an amazing mentor to the next generation of scholars in the field (which I learned at the panel). Several of the panelists were Harrington’s former students, and their testimonials were amazing. Christine and I have never worked closely together, but she was a welcoming senior presence at both law & society and political science conferences as far back as I can remember.

But my favorite panel of the week may have been the one devoted to the conservative legal movement and autocratic legalism in the Trump-era United States. The presentations were all great, though they ran long and we didn’t have much time for Q&A. The panel featured an interesting conversation between Scott Cummings and Deborah Pearlstein about whether Trump-era autocratization is best understood as an instance of Hungarian-style autocratic legalism (as described by Kim Scheppele) or as something distinctive and maybe worse (Pearlstein suggested “autocratic legal nihilism”). The point I would have made if we had more time is that Hungary is not the only relevant comparative case—indeed, not even the case on which the concept of autocratic legalism was first advanced. (That would be Venezuela, in this paper by Javier Corrales.)

The literature on other backsliding countries has developed Corrales and Scheppele’s original accounts to show that autocratic legalism appears in different guises. The Brazilian literature, for example, has identified a process of “autocratic infra-legalism” that features extensive use of unilateral executive orders rather than statutory or constitutional lawmaking—by former President Jair Bolsonaro, but in ways that seem applicable to Trump 2.0 as well.

The question I would have asked about the particular U.S. variant of autocratic legalism is whether it has played out in distinctive form in part because the United States has the world’s most robust system of diffuse or decentralized judicial review. Some democracies feature a single apex court that has the authority to enforce constitutional limits on national executives and legislatures. This system has the upside of segregating the political domain of constitutional law from the ordinary courts, but the significant downside of facilitating autocratic capture of a key democratic guardrail. In the United States, Trump has captured the Roberts Court to a significant degree, but is nowhere close to capturing the federal judiciary as a whole, and every federal judge in the country is authorized to enforce constitutional limits on the administration’s actions. (Though the Trump-allied Roberts Court has been trying to rein them in over the past year and a half.)

All in all, it was an engaging conference. I look forward to the next one.