Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule‐of‐law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel implications for such basic rule‐of‐law issues as the choice between rules and standards, the relation of bureaucratic and judicial control, the proper scope of judicial intervention into dysfunctional public agencies, and the justiciability of “positive” (or social and economic) rights.

Given the often perplexing relationship between mental illness and substance abuse among offenders, this article looks at how a juvenile drug court staff's presumptions of a youth's mental illness affect its decision‐making process. Based on thirteen months of ethnographic fieldwork at a Southern California juvenile drug court, this article uses Manzo and Travers's “law in action” approach to analyze how the staff readjusts its application of normal remedies (a concept developed by Robert Emerson) designed to respond to a youth's noncompliance when it suspects mental illness may be influencing the youth's actions. In doing so, it highlights how court staff's considerations of youth mental disorders arise out of its everyday work practices. Furthermore, the article discusses how staff negotiations around a youth's mental illness create tensions for the juvenile drug court's accountability‐based model of therapeutic jurisprudence, because assessments of mental illness tend to mitigate responsibility for a youth's behavior.

The death penalty debate in the United States has recently undergone a fundamental shift. The possibility of executing the innocent has emerged as some abolitionists' most salient argument, displacing debates over such issues as fairness, deterrence, and cost. Innocence has managed to move to the fore of the debate in part because of the success of death penalty opponents in attaching epistemological certainty to one particular category of postconviction exonerations, those vouched for by the authority of DNA evidence. We suggest that such moves are primarily rhetorical because, while DNA evidence may be more accurate and reliable than other forensic science, it still fundamentally probabilistic in nature and is prone to uncertainties at all stages of its production. Yet, because of the certainty attached to DNA evidence in public discourse, it can be used as a lever with which to challenge law's claims to truth‐making authority, and to undermine public trust in the death penalty. A few abolitionists and other scholars have expressed misgivings about the abolitionist embrace of the innocence argument. We push this concern further, suggesting that both abolitionists and death penalty reformers, who seek to promote a “scientific” death penalty centered on DNA evidence, draw upon a mythologized notion of “science” as a producer of epistemic certainty.

This article focuses on the legal geography of gated communities. Sociolegal research has paid comparatively little attention to how specific material forms fare within legal contexts. Drawing on work in legal geography and in science and technology studies, this article isolates judicial decisions that deal with the borders of gated communities from other cases involving private homeowner associations. By focusing on these boundary disputes in which outsiders are excluded from the area, this article finds that courts are resisting the localism presented by gated communities and are instead articulating a social imaginary in which the landscape flows uninterrupted by the exclusionary presence of gates. In contrast to the privatopia literature, this article finds that courts are not complicit in promoting neoliberal visions of community. The social imaginary being developed by courts resists the spatial differentiation of gated communities, producing in its place a thoroughly modern polity in which legal, economic, and political relations flow easily between those inside and outside the gate.

The “50 percent rule” is an Israeli judicial doctrine that has played a pivotal role since the early 1960s in deciding disputes between the Israeli government and Palestinian landholders under Article 78 of the Ottoman Land Code. It was first institutionalized during a government land‐claiming campaign aimed at providing state land for settlement‐based Judaization of Israel's predominantly Palestinian Galilee region. Two decades later, during a similar state land‐claiming campaign, the doctrine diffused into the occupied West Bank. Drawing on spatial components of social science diffusion literature and work in the field of legal geography, this article offers a legal‐historical‐geographical analysis of the evolution and diffusion of the 50 percent rule. Its conclusions suggest a new spatialized approach to the study of legal transfers and transplants that conceptualizes law's movement across international borders as one component of a broader process of legal diffusion, in which internal diffusion also plays an important role.

The transitional justice literature highlights various trade‐offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule‐of‐law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post‐Communist societies within other posttotalitarian regime‐building narratives.

This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber's Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney's Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis's celebrated dissent amounted to an unjudicial manipulation of the law, albeit for the higher purpose of striking at the political hegemony of the slaveholding class.

This essay is an abridgement of a longer work (Leonard 2009) that offers, among other things, further analysis of the unjudicial character of Curtis's dissent.