Worldwide, the legal profession is grappling with how deeply to embrace the datafication of law. Drawing on interviews and the public record, this article offers a case study of how France’s 2016 Law for a Digital Republic—which promised public release of all judicial decisions—exposed divisions within the French legal profession over technology, big data, and identity. A heated debate over “predictive justice” (justice prédictive) mobilized competing coalitions, ultimately resulting in France becoming the first country to ban data analytics that reveal the identity of individual judges in 2019. For scholars of the legal profession, this episode highlights how legal professionals serve as gatekeepers of technological change and, in the process, reshape law-related cultural scripts central to national identity. For scholars interested in big data, the French case reminds us that the datafication of law is not an inexorable force, but rather a contested political process. And for those interested in court administration, France’s experience offers insight into how one early-moving jurisdiction re-negotiated the boundaries of privacy and judicial transparency for the twenty-first century.

The label ‘populist’ has been used in recent years by scholars and journalists to describe judicial behavior in a diverse set of countries. Yet judicial populism has to date not been the subject of comparative scholarly inquiry. This symposium aims to launch just such a comparative analysis, bringing together work by scholars with diverse disciplinary and geographic expertise to grapple critically with the phenomenon of judicial populism. In this introductory article, symposium organizers Lisa Hilbink and Yasser Kureshi distill and synthesize the findings and arguments from the four individual articles in the symposium to address three main questions: (1) What is judicial populism? (2) Where does judicial populism come from? and (3) Do populist courts benefit or undermine democracy? They discuss how the contributions to the symposium speak to each of these questions, in turn, generating a scholarly discussion, across disciplines and contexts, with which others can engage moving forward. To this end, they cap the introduction with some suggestions for future research.

Does the process of writing a constitution have any impact on its durability? Using a cross-national analysis of 209 constitutions adopted since 1974, this study shows that the broader inclusion of different societal and political groups in constitution-making processes, rather than mere public participation, positively correlates with constitutional durability. Following self-enforcement theories, this study argues that to be self-enforcing and enduring, a constitution should be viewed as “fair” by every group in society to create a supporting constituency. This study suggests that an inclusive process can result in a “fair” constitution, which is deemed beneficial to every group in society and garners their willingness to defend and support the terms of the constitution. Confirming this argument, our statistical analysis shows that inclusive constitutions have 54 percent lower risk of replacement than noninclusive constitutions.

This paper introduces the concept of symbolic rule of law promotion, which consists of repeated enactments of policy and initiatives equated with advancing the rule of law despite no evidence suggesting actual progress. To demonstrate its existence, US rule of law promotion in Afghanistan is examined as a “least likely” crucial case, from the end of President Obama’s Surge in 2014 to the Taliban’s return in 2021. During this time, Afghanistan— a major foreign policy priority—received the most US rule of law aid of any country globally. Unlike earlier attempts that sought to use the rule of law policy and practice to achieve substantive goals and adapted over time, US rule of law endeavors from 2015 to 2021 were symbolic. Decision makers consistently pursued rule of law strategies, and practitioners implemented initiatives that lacked any prospect of success. Previously unsuccessful strategies and programming were replicated alongside partnerships with disinterested, uncooperative stakeholders. More broadly, symbolic rule of law promotion has potentially significant implications for understanding the persistence of underperforming long-term rule of law efforts elsewhere. To increase the prospects of success, it shows the need to engage with non state justice authorities, support robust accountability mechanisms, and take concerns about state legitimacy seriously.

Across the developed world, citizens typically file many more administrative appeals than administrative lawsuits. Yet, in contrast to the rich literature on court decisions, little is known about the determinants of administrative appeals decisions. We seek to fill this scholarly gap. An important feature of administrative review panels is that typically only some of their members have professional legal training. Drawing on original data on Japanese prefectural-level Administrative Complaint Review Boards (ACRBs), we show that ACRBs with more private attorneys rule more often against agencies. Consistent with a socialization perspective, we find preliminary evidence that ACRBs with more experienced private attorneys rule more often against agencies. We also find that, consistent with insights from both political insurance theory and the literature on technocratic appointments, more recently elected prefectural governors are more likely to appoint more private attorneys to ACRBs and that governors’ ideological orientations have little effect on their choices.

The rise of judicial populism in various national jurisdictions is usually explained through the vicissitudes of power conflicts between the judiciary and other governmental organs. In this article, I try to locate the origins of India’s well-known judicial populism in the peculiarities of Indian constitutional design itself. I argue that the heavily statist nature of India’s transformative constitutionalism, specifically its “Directive Principles of State Policy,” has made the practice of classical judicial review increasingly untenable and provided the grammar for its judicial populism. Directive Principles add another layer of complexity to the “counter-majoritarian difficulty” in India, forcing the constitutional courts to traverse increasingly unconventional territory to legitimise their role. It helps explain why the famously powerful Indian judiciary has failed to act as an institutional check to the crisis of constitutionalism well underway in India. The article provides a stark example of the normative challenges faced by a constitutional court in a transformative constitution.

Nuancing the conventional wisdom that informal economic activities endure by marginalizing, circumventing, or colluding with the law, we use original court data from China to reveal a counterintuitive mechanism: informal finance can endure through formal litigation. Drawing on 66,843 judicial decisions, case studies of seven top-filers, and interviews, we examine how sophisticated moneylenders, inactive debtors, and embedded courts collectively helped sustain unlicensed moneylending in China before 2020. Moneylenders—whether operating through Fintech or offline channels—leverage superior legal resources to enforce semilegal debts. Debtors facing moneylenders suffer from serious hurdles in accessing justice, especially lacking professional legal help that could potentially change case outcomes. Courts, despite concerns over debtor protection, largely tolerate the semilegal lending in alignment with the pre 2020 regulatory environment that valued the expansion of private financing, particularly through Fintech. Beyond China and the financial market, this litigation-endured mechanism of informal economy reflects a pattern in high-volume civil dockets where litigation is strategically used to bypass regulation, which has contributed to access-to-justice crises in other jurisdictions, including the USA. Theorizing these dynamics raises pressing questions about the institutional role of courts in either sustaining or remedying welfare pathologies, and in shaping a just society.

Judicial authority relies heavily on the reader’s perception that judges make fair and legitimate decisions. Do such perceptions rest primarily on the reader’s agreement with the decision? Or does an opinion’s reasoning style, as distinct from outcome, impact a reader’s perceptions of legitimacy? In this study, we test whether incorporating elements of procedural fairness into judicial opinions impacts readers’ perceptions of fairness and legitimacy, distinct from their agreement with the decision. In doing so, we also test whether members of the public are sensitive to elements of procedural fairness in written judicial opinions — a different context from the interpersonal interactions in which procedural fairness has been most often studied. We ran two survey experiments that sort participants into four conditions, varying the outcome of the case and whether the judicial opinion employs elements of procedural fairness. After reading a procedurally fair or one-sided opinion, participants reported on their perceptions of fairness and judicial legitimacy. We found strong support for the hypothesis that agreement with the outcome impacts readers’ perceptions of fairness and legitimacy, and weak support for the hypothesis that procedural fairness impacts these perceptions.

A growing number of analysts use the term “judicial populism” to refer to judicial behavior that they find problematic, but they apply it to divergent phenomena and find it objectionable for different reasons. What, then, is judicial populism, and when and why should it be of concern? Taking a deductive approach, I argue that judicial populism is best understood as a performance/discursive style, analytically distinct from judicial activism. Like judicial activism, it is a gradational concept, and both populism and activism may present in judicial behavior to different degrees and in different combinations. To illustrate, I develop a grid matrix with an X-axis that runs from maximal restraint/deference to maximal creativity/dominance in the content of judicial rulings (the “what”) and a Y-axis that runs from maximally removed and technocratic to maximally proximate and publicly oriented in the performance or communication of the judicial role (the “how”). This two-dimensional framework enables nuanced comparison of judicial behavior in disparate times, places, and issue areas, illuminating relative variations and trends therein. It also helps to illustrate that, from a pluralist and deliberative democratic perspective, it is not judicial populism per se that should trouble democrats but, rather, populist behavior taken to extremes.

What is a populist judge, and when do judges embrace populism? Populist judges bypass legal and procedural constraints, seek an unmediated relationship with the public, and claim to represent the public better than political elites. Judicial populism can emerge in response to institutionalized dissonance in the political system. Dissonant institutionalization facilitates contestation between state institutions and can undermine the legitimacy of political institutions. This legitimacy crisis can imbue judges with a belief in their role as representatives of the public interest. In Pakistan, the dissonance caused by unresolved differences between the civil-military bureaucracy and the elected political leadership—differences that were embedded into the constitutional framework, facilitated the rise of judicial populism. I outline the key features of judicial populism and study the dynamics surrounding the rapid expansion of populist jurisprudence between 2005 and 2019 in Pakistan, with a focus on public interest litigation that became the cornerstone of the judiciary’s populist turn. Through case analysis, archival research, and semi-structured interviews, I discuss features of the populist approach to jurisprudence and trace how dissonance within Pakistan’s political system created new opportunities for the judiciary and changed judicial role conceptions within the legal and judicial community.

Deliberation is routinely considered an essential component of a jury trial, contributing to the quality of fact-finding and confidence in jury verdicts. Unlike all other countries that use juries, Brazilian jurors do not deliberate. Instead, under the Brazilian jury system’s “incommunicability rule,” they submit their votes individually, without discussing the case with one another. How jurors approach the task of individual decision making and how they view and experience this notable absence of deliberation are unknown. The aim of this article, which is part of a broader research project on jurors’ decision making in femicide trials in Brazil, is to understand these experiences and views of Brazilian jurors, especially regarding the incommunicability rule. The research used qualitative methods, including ethnographic observations of trials and semi-structured interviews of jurors. The majority of jurors voiced support for the current practice, explaining that refraining from deliberation would ensure their impartiality. However, 41 percent of the jurors said that they would have liked to deliberate with others to exchange and debate views. Interviews also shed light on how the absence of deliberation affected the decision process and jurors’ satisfaction with the overall jury experience. This research contributes to an ongoing debate in Brazil over the incommunicability rule.

COVID-19 lockdown restrictions forced several courts to conduct remote video or telephone hearings of cases. Many argue for the continued use of these hearing formats based on claims of increased transparency and access to justice. Recent research, however, has highlighted that virtual hearings may lead to unfair proceedings, especially in trial courts. Furthermore, this research suggests that technology gaps—for example, the lack of computer literacy among litigants—may impact case outcomes. In this article, we test whether the introduction of virtual hearings due to COVID-19 affected the way in which traffic courts adjudicated traffic tickets in Arkansas. Using an original dataset of all court cases that occurred in three Pulaski County courthouses in 2020, we find that courts were less likely to dismiss charges where hearings took place through videoconferencing. Further, using a difference-in-differences design, we find that this bias is mitigated when the technology used for the hearing is equalized among litigants. We suggest reasons for this effect and offer some recommendations to mitigate the biases inherent in virtual environments. Our results invite more research into the impact of remote communication technology on judicial behavior to ensure that the long-term use of virtual hearings guarantees equitable justice to all litigants.

This article examines the incentives, strategies, and constraints faced by judicial entrepreneurs in advancing bankruptcy enforcement—a legal area traditionally considered politically sensitive—in Wenzhou, China. While existing studies on Chinese courts emphasize external and institutional factors, this study argues that judicial entrepreneurs can play a pivotal role in driving reforms. In response to the 2011 private lending crisis, Wenzhou court leaders promoted bankruptcy as a means of resolving failing firms. They began with pilot cases and gradually institutionalized bankruptcy by mobilizing social, judicial, and political resources. These efforts were shaped by both personal attributes and self-serving interests. However, judicial entrepreneurship encountered limits, such as legal rules, the inconsistency of enforcement, and the government’s core interests. The study contributes to the debates on courts and social change by showing how court leaders can overcome institutional constraints through alliance building, public engagement, and local adaptation of national rules. It also enriches our understanding of judicial policymaking across regimes by highlighting a symbiotic, rather than a zero-sum, state-court relationship in the analysis of judicial politics.

I provide a new analytical framework to understand the effectiveness of corruption prosecutions in the so-called Mani Pulite (Clean Hands) operation by showing how this operation was rooted in a populist interpretation of criminal rules and criminal procedure. The Clean Hands operation represented a successful breakthrough against the vast and complex corruption system that had sustained Italian politics for decades. I show that prosecutors in the Clean Hands operation interpreted legal rules through the lens of a deep-seated hostility between a vague conglomerate of “corrupt elites” and “virtuous citizens.” This populist interpretation of criminal and procedural rules introduced significant legal innovations that empowered judicial actors against systemic corruption by creating unprecedented incentives for defendants to cooperate with legal authorities. Consequently, the judicial professionals leading the Clean Hands operation also felt the need to shield themselves against retaliation for the use of these novel approaches to corruption prosecution by bringing their fight before the court of public opinion. To this end, the Clean Hands prosecutors made use of targeted media interventions to rally public support around their investigation and protect their work from political interference.

In 1915, a Denver murder case became a national story, not because of the identities of the perpetrator or victim but because of a reluctant trial witness: Judge Ben B. Lindsey. A pioneer of Progressive Era juvenile justice, Lindsey was charged with contempt of court for refusing to disclose the details that a twelve-year-old boy shared with him. His refusal led to a six-year-long battle over ideas of confidence and secrecy between a juvenile court judge and a minor. This article analyzes the murder trial and consequent contempt of court case as reflective of a clash over questions of law, justice, and public interest and highlights the role of ordinary people, including children, in debating these ideas. It argues that, as legal actors engaged in a conflict between legal formalism and socialized law, members of the public debated their own perceptions and vernacular understandings of law, justice, and the role of the juvenile court.

This article examines Israeli juvenile courts as sites where poverty is present yet systematically denied as a cause of child neglect. Drawing on focused ethnographic observations, I show how factual reports routinely document material deprivation—housing shortages, lack of food, utilities cutoffs—yet court actors reject poverty as a legitimate explanation for neglect. Instead, they insist that “good parents” should be able to cope with scarcity, thereby displacing structural conditions onto individualized parental failure. I frame this configuration as part of “criministrative law”: an administrative forum that adopts criminal-style rituals of blame and correction while deferring to welfare agencies, leaving families without the protections of either criminal or administrative law. This criministrative denial of poverty produces epistemic marginalization of parents and legitimates punitive interventions. As a normative remedy, I propose adapting the poverty-aware paradigm from social work to law, reframing protection as solidarity rather than surveillance.

A growing number of Medicaid programs have expanded to employ family members to provide long-term home care to individuals with disabilities, challenging the traditional wisdom that the law systematically denies the economic value of family caregiving. This article qualitatively studies a novel dataset of fair hearing records arising out of one of these programs—New York State’s Consumer-Directed Personal Assistance Program (CDPAP)—and makes two contributions to the literature on care, disability, and the welfare state. First, this article explores the new public/private boundary of care when the state limitedly expands its public care responsibility by compensating some family caregiving, providing a more nuanced picture of how the legal system both values and undervalues care. Second, it contributes to disability law scholars’ debate about medicalization by studying how medicalization works as a state legibility project in the context of state-supported disability care. Especially for traditionally undervalued social goods such as care, medicalization provides some metrics, albeit highly constrained, to make its value visible. Meanwhile, through capturing care recipients and their families’ more expansive understandings of care’s value, this study reveals the constraints of these metrics and supports making the relational dimension of care legible to the state.

The history of legal aid in South Asia has hitherto been restricted to appendages or short overviews in writings orientated towards its contemporary. This article offers the first archivally grounded study of the birth of the legal aid movement in early twentieth-century colonial India, focusing specifically on the Bombay Legal Aid Society. It pursues three major lines of inquiry. First, I consider the transnational intellectual networks between India and America upon which early Indian legal aid thinking developed. Second, I tackle the fraught politics of doing legal aid in interwar Bombay, a period marked by anticolonial nationalism and strong trade union organizing. Finally, the article examines why the BLAS succeeded in building strong working relationships with existing social welfare societies, state institutions, and like-minded legal professionals, but failed to garner considerable interest from the working classes it sought to serve. I argue that these struggles point to the hard limits of legal aid in the colony but also present a valuable window into the Bombay working classes’ legal consciousness. The article thus contributes to ongoing efforts at globalizing the history of legal aid and to the small but growing study of the legal profession in colonial South Asia.

Tens of millions of Americans are subject to drug and alcohol tests each year. How did this biochemical surveillance become so routine and normalized? This article examines the historical emergence, contestation, and gradual acceptance of the first biochemical surveillance technology, the drunkometer—the predecessor of the breathalyzer—which analyzed blood alcohol content in the breath. In the 1930s, public concerns over drunk driving grew alongside mistrust of rapidly expanding policing and security apparatuses. In this context, the drunkometer emerged as a seemingly commonsense solution to the problems of drunk driving and police mistrust, using a scientific technology to decenter law enforcement testimony and, in turn, streamline difficult cases. By examining contestations to the drunkometer in newspapers, court records, and other public documents, we detail how courts and the public gradually accepted the biochemical constitution of the body as the legitimate domain of authoritative institutions. We introduce the concept of “chemical citizenship” to analyze this authoritative institutional use of biochemical technologies to extract and deploy “the truth” about substance use as a mode of governing access to the rights and benefits of citizenship. We apply this concept to demonstrate how the drunkometer laid the foundation for contemporary drug testing.