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.

In this Review Essay, I try to rise to one of the challenges that Goodman, Page, and Phelps pose to other scholars in their book, Breaking the Pendulum (2017). They invite us to explore whether and how well their “agonistic perspective” on penal change travels. In response, I draw on original archival and oral history research on probation history in Scotland to explore their model’s utility in the context of this particular and challenging test case. Although Scotland is often discussed as an anomaly because of a supposed consensus around an enduring commitment to penal welfarism, my analysis reveals precisely the kinds of contestation that Goodman, Page, and Phelps describe. I conclude that their agonistic perspective seems to travel well, at least to this Atlantic edge of Europe, but that scholars in other jurisdictions will need either to undertake or revisit primary research to properly test the model and further refine it.

This Essay responds to thoughtful analyses from Ashley Rubin, Johann Koehler, Geoff Ward, and Fergus McNeill on our book Breaking the Pendulum: The Long Struggle Over Criminal Justice (2017). In particular, we revisit our claim that consensus within the penal field is illusory. Drawing inspiration from our interlocutors, we argue that while recognized actors constantly struggle over the character and scope of criminal justice, they agree (at least implicitly) that certain positions are “unthinkable” and certain actors must remain outside the field. This “conflictual consensus” limits radical transformations of criminal justice. Our revised perspective encourages scholars to analyze how marginal positions and actors become part of the field, as well as the effects they produce while trying to reshape its boundaries. We conclude by sketching out how scholars have extended and revised the agonistic perspective we advance in Breaking the Pendulum and where we might turn next.

This essay analyzes inequality and the construction of childhood in the early US juvenile justice system. Although the juvenile justice movement’s best intentions focused on protecting children from neglect and the criminal justice system, historians have argued that protective juvenile justice was unequal and ephemeral. I critically summarize three histories of juvenile justice: Anthony Platt’s The Child Savers: The Invention of Delinquency (1969), Geoff Ward’s The Black Child-Savers: Racial Democracy and Juvenile Justice (2012), and Tera Agyepong’s The Criminalization of Black Children: Race, Gender, and Delinquency in Chicago’s Juvenile Justice System, 1899–1945 (2018). I argue that the common thread in these studies is the construction of poor and black youth as unchildlike. Because the juvenile court arose in a context where not all youth were considered children, it never treated all youth as innocent or in need of protection.

Susanna L. Blumenthal’s Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016) is a history of the self in nineteenth-century America. When judges considered a person’s criminal responsibility or civil capacity in court, they created a body of legal and political thought about the self, society, the economy, and American democracy. This essay uses Blumenthal’s book to explore recent work on law and the mind in Britain and North America, and argues that abstract questions about free will, the self, and the mind were part of the everyday jurisprudence of the nineteenth century. Debates about responsibility were also debates about the psychological consequences of capitalism and the borders of personhood and citizenship at a time of rapid economic, political, and social change.