This article seeks to establish the extent to which the voices and interests of transnational commercial surrogates—women who are paid by intended parents from another country for carrying a pregnancy—are accounted for by those with power to shape the policy around this complex area in the country of the intended parents. Through a first-of-its-kind qualitative study of the viewpoints of policy makers and government officials, taking Israel as a case study, the research maps the hierarchy of interests in Israel as the country of the intended parents, in which the rights and well-being of the transnational surrogates are largely neglected. The study finds that, even when awareness of the vulnerability of transnational surrogates is relatively evolved among officials, they admit that the motivation and ability of the country of the intended parents to supervise the protection of the surrogates—during a process that takes place in another country—are extremely limited. Equipped with the empirical findings, the article examines the actual and potential regulative arenas relevant to transnational surrogacy (also known as international surrogacy), and offers an alternative normative framework to correct the current regulative failure in providing much-needed legal protection for transnational surrogates.

Criminal law’s treatment of spousal violence oscillates between two different views. According to the first view, spousal violence is to be defined and prosecuted using generic titles such as assault or battery. According to the second, spousal violence constitutes a form of abuse—a terminology implying a background state of power or inequality that exists in spousal relationships, turning it into a distinct legal wrong. This Essay draws on Hendrik Hartog’s account of nineteenth-century marital consciousness in Man and Wife in America—which considers people’s assumptions and expectations regarding rights and duties within marriage—to illuminate this contemporary debate and situate it within a larger inquiry concerning the residues of patriarchy in contemporary law and society. This analysis calls for a fresh normative assessment of the different views for proscribing spousal violence under contemporary criminal laws.

The literature on the relationship between parents and adult children reveals an embedded tension. While the law typically characterizes parents and their adult children as legal strangers, several legal rules assume intergenerational altruism. This Essay argues that Someday All This Will Be Yours by Hendrik Hartog unpacks this dichotomy and offers a much richer depiction of intergenerational relations in an age of market economy. The book portrays an intermediate space where autonomous individuals engage in private ordering but the same parties also maintain a dynastic understanding of their commitments. This depiction provides a useful lens for the analysis of occurrences of informal care between parents and adult children. The Essay discusses intergenerational cohabitation in the wake of the 2008 financial crisis as an example of such an analysis.

From arrest to sentencing, cases in which the defendant is charged with capital murder in the United States take substantially longer to resolve than homicide cases in which prosecutors choose not to seek the death penalty. One might reasonably attribute the slowness of capital trials to heightened procedural safeguards that attend the potential deprivation of life. In this article, I suggest that this explanation, straightforward as it is, glosses over more probing and analytically interesting truths about the complex temporal dimensions of death penalty trials. Based on my experiences as both a former defense advocate and an ethnographic researcher of capital defense practices, the slowness of capital cases revolves in large measure around the investigative pursuits of sentencing mitigation. Mitigation investigation’s knowledge practices are informed by distinct temporal operations whose interrelations feed into a deeper logic to capital defense advocacy. This article parses out and traces the connections between these inner workings, using social theory on time to articulate the processes by which mitigation’s temporal logics produce the characteristically slow pace of death penalty cases. I conclude with brief thoughts speculating how the temporal analysis experimented with here might be extended to processes of US criminal adjudication more broadly.

This Essay introduces a Review Symposium for Philip Goodman, Joshua Page, and Michelle Phelps’s Breaking the Pendulum, a book that challenges the centrality of the pendulum metaphor that scholars, journalists, and politicians have used to describe significant shifts in the overall orientation of punishment nationwide. Drawing on recent research, Goodman, Page, and Phelps lay out the case for abandoning this metaphor as well as its associated theory of penal change, offering in its place an “agonistic perspective.” Using this agonistic perspective as well as research on the topic, I suggest some reasons why the pendulum metaphor may still be a fruitful site of interrogation. Specifically, I argue that, while recognizing the caveats illustrated by Goodman, Page, and Phelps, we should take seriously the pendular pattern of US penal history told at the national level and we should not dismiss the mechanical causes of penal change in our efforts to populate theories and accounts of penal change with individual and group actors.

Hendrik Hartog’s The Trouble with Minna complicates the binary between freedom and unfreedom in American history by probing the mixture of slavery and contract in antebellum New Jersey’s regime of gradual emancipation. This Essay argues that if Hartog’s narrative is read for more general patterns—in addition to everyday lived experiences which Hartog emphasizes—it also reveals resistance to such line-blurring, and historical efforts to construct conceptual boundaries that would separate slave relations from capitalist ones. That resistance should assume a more central conceptual place within the current tide of historiographical emphasis toward blurred lines.

While scholars recognize that cause lawyers use public education as a reform tactic, they rarely place this tactic at the center of their analysis, leaving a gap in our understanding of how cause lawyers use extrajudicial tactics to navigate the limits of litigation. In this article, I examine the role of public education in the work of cause lawyers, through a study of lawyers from eight legal organizations representing the rights of LGBTQ people. Through interviews, archival work, and analysis of publications, I find that lawyers and organizations use education for four functions: (1) to prime a pathway to successful litigation; (2) to control for backlash; (3) to leverage pressure during litigation or policy negotiation; and (4) to generate community and public awareness. This article shows that public education is not simply an ancillary tool to these groups—it is vital to their missions and their everyday work.

In this Essay, I offer two ruminations about the field of legal history, as reflected or refracted in the essays in this symposium on my work. First, the changing subjects and approaches that have characterized my work and that occasioned these essays reflect many of the changes in the field over the past forty years. Or better, they demonstrate the field’s reconstruction over the past forty years. They sit between and draw on both the professional discourses of history and of academic law as each changed in the late twentieth and early twenty-first centuries. And second, those changing subjects and approaches are unified by a commitment to and an exploration of complexity and of middle spaces. That commitment represents a fundamental challenge to many of the core assumptions and practices of leading figures in legal history.

Working Law: Courts, Corporations, and Symbolic Civil Rights (2016), by Lauren Edelman, presents an integrated theory of endogeneity that explains how organizational responses to civil rights laws undermine civil rights protections, preserve managerial prerogatives, and redefine judicial interpretations of compliance. Structural dynamics baked into organizations and driven by legitimacy and meaning produce organizational practices that appear to prohibit discrimination but do little to change discrimination on the ground. Working Law raises important questions for future research: Under what conditions might symbolic structures be effective? How does power affect the institutionalization of some symbols of compliance but not others? Can legal reforms limit the effects of endogeneity?

In Breaking the Pendulum, Goodman, Page, and Phelps (2017) advance an “agonistic” perspective that contends struggle drives penal change, and that it does so through perpetual conflict. Yet studying only manifest struggles, when an actor made their resistance to a penal status quo known, presents thorny problems in conceptualizing conflict. One such problem is that conflict among agonists advocating competing penal policies presupposes consensus between those who threaten penal order’s basic conditions. Understanding penal agonism’s corollary, penal antagonism, offers a more complete starting point from which to theorize penal history and penality.

In Breaking the Pendulum: The Long Struggle Over Criminal Justice (2017), Philip Goodman, Joshua Page, and Michelle Phelps advocate replacing the pendular notion of penal change with an agonistic approach, where contention is central. This Essay reflects on a pendulum component that has escaped theoretical or empirical scrutiny in pendular accounts of penal change: the pivot determining how freely a pendulum weight swings, and its resting equilibrium. In this parting glance at the pendulum heuristic, I relate this pivot to the agonistic perspective on punishment and—focusing on racial politics of juvenile justice—imagine an antiracist calibration of struggle over penal change.

Lauren B. Edelman’s Working Law: Courts, Corporations, and Symbolic Civil Rights (2016) offers an empirically supported theory of legal endogeneity, explaining how managerialized ideas of compliance with employment discrimination legislation diffuse in organizational fields and shape judicial doctrine. Managerialization and legal endogeneity explain how and why equality-promoting civil rights legislation may do little to reduce workplace inequalities. This essay places Edelman’s theory within a broader terrain of opportunities and limits of law for promoting egalitarian change. Managerialization is not always detrimental to enhancing workplace race and gender equality. However, typically reinforcing logics of market capitalism and liberal legality often make it so, while blocking reforms countering judicial deference to managerialized compliance.

Lauren Edelman’s Working Law: Courts, Corporation, and Symbolic Civil Rights (2016) is remarkably relevant to the study of financial regulation. In particular, three factors that Edelman identifies as contributing to legal endogeneity and symbolic compliance—ambiguous law, a lack of clear outcome measures, and the presence of legal intermediaries—are especially salient in this context. It has long been recognized that powerful financial institutions and the lawyers, lobbyists, and other agents who serve them have the ability to influence the law ex ante, through political lobbying. Edelman’s work reinforces the point that they may also do so ex post through an endogenous process of interpretation, implementation, and, ultimately, enshrinement of symbolic compliance with ambiguous law.