bluuebunny/crossref_metadata_2025 huggingface dataset:
The Obligation to Provide Maintenance Between Divorced Husband and Wife in Belgium
Authors: Van Houtte Jean , De Vocht Corinne
Published: June 2006

This research note summarizes some of our work on the allocation of maintenance (alimony payments) in Belgium, specifically the obligation of a husband to provide maintenance and the entitlement of his former wife to receive it following a divorce grounded in fault. The converse situation of a maintenance-obliged wife and a maintenance-entitled husband occurs only rarely, and it is excluded from our study. So too, we do not consider the obligations of either or both divorced parents to provide maintenance for their children.
Deterrence Of Drinking and Driving in France: An Evaluation of the Law of July 12, 1978
Authors: Ross H. Laurence , McCleary Richard , Epperlein Thomas
Published: June 2006

This report describes a study of the effects of a Scandinavian-style law concerning alcohol-impaired driving. The past two decades have seen the adoption throughout most of the developed world of drinking-and-driving laws based on principles originally developed in Norway and Sweden. The French law of July 12, 1978, was a part of this general development. Interrupted time-series analysis of French data on crash-related injuries and fatalities shows that the 1978 law had a notable deterrent effect, but that the effect was not permanent.
Law in the Soviet Workplace: The Lawyer's Perspective
Authors: Shelley Louise
Published: June 2006

The USSR can survive without the rule of law which characterizes most western democracies, because the force of Soviet law lies in individuals, rather than codified regulations. The iuriskonsult (legal advisor), who personalizes legal authority, increases the stability of the system and provides tangible benefits for the economic and social order. Many Soviet citizens find solutions to their legal problems as a result of the iuriskonsult's assistance, and this convinces them of the justness of the Soviet system. Iuriskonsulty can increase the economic efficiency of an organization, provide financial gains for workers, and improve the quality of labor relations. The impact of the lawyer on his organization is determined by the latitude accorded him by his manager.
The Importance of Economic Supply in Determining the Size and Quality of the Public Interest Bar
Authors: Stover Robert V.
Published: June 2006

During a three-year panel study, the job aspirations of University of Denver law students changed so as to reduce the economic supply of public interest attorneys. Elementary economic theory suggests that this reduction in supply has an important impact on the size and quality of the public interest bar. Both demand and supply must be considered in attempts to increase the number and quality of public interest attorneys. Although this study does not attempt to explain the reasons for changes in students' job aspirations, reformers attempting to increase economic supply should not ignore the potential impact of legal education.
Legal Reconstitution of the Welfare State: A Latent Social Democratic Legacy
Authors: Kettler David
Published: June 2006

A critical review of two recent discussions of problems in the law of the welfare state helps to explain the contemporary appeals of a theory of legal evolution originally developed by social democratic theorists in conjunction with the rise of collective labor law in settings as disparate as Germany and the United States. Influential contemporary formulations treat collective labor law as merely one example of a generalizable decentralization of regulative and constitutive law, taken as a distinguishing feature of a new evolutionary stage. But the question is raised whether the plausibility of this model does not tacitly depend on a positive reading of the labor experience, and consequently whether its present relevance is not seriously put into question by the deep crisis of the labor movement, whose social and political power was acknowledged by the original theorists to underlie the legal structures taken as paradigmatic.
Legal Conflict and Class Structure: The Independent Contractor-Employee Controversy in California Agriculture
Authors: Wells Miriam J.
Published: June 2006

This article examines the interconnection between legal conflict and class structure in American agriculture. Law, as seen in the example of the California strawberry industry, is intimately involved in the transformation of economic systems and class relations and is itself affected by those changes. The impact of the law on social class varies across industrial subsectors and over time. In this case legal distinctions, in the context of changing political pressures and technoeconomic constraints on production, have encouraged the adoption of sharecropping. This form of production alters the legal status, economic interests, and subjective identification of workers, thus creating a new basis for future class interrelations.
The Origin and Evolution of the Police Function In Society: Notes Toward a Theory
Authors: Robinson Cyril D. , Scaglion Richard
Published: June 2006

Our theory states that the police function, in its modern form, is linked to economic specialization and differential access to resources that occur in the transition from a kinship- to a class-dominated society. This theory shows the incremental steps by which this transition may come about, both historically and cross-culturally. In addition, we examine the implications of these steps for modern police-community relations.

Our theory is constructed from both anthropological and historical materials. It consists of four interdependent propositions: (1) The origin of a specialized police function depends upon the division of society into dominant and subordinate classes with antagonistic interests; (2) specialized police agencies are generally characteristic only of societies politically organized as states; (3) in a period of transition, the crucial factor in delineating the modern specialized police function is an ongoing attempt at conversion of the social control (policing) mechanism from an integral part of the community structure to an agent of an emerging dominant class; and (4) the police institution is created by the emerging dominant class as an instrument for the preservation of its control over restricted access to basic resources, over the political apparatus governing this access, and over the labor force necessary to provide the surplus upon which the dominant class lives.

We argue that the police institution has a double and contradictory origin and function, for at the same time and in the same society it may be both the agent of the people it polices and of the dominant class controlling these same people. An analysis linking the origin of the modern police function to social change in classless societies has important implications for an understanding of contemporary problems in police-community relations. It allows the dynamics of the social control function of police in small, homogeneous social units to be integrated with a consideration of its role in a complex society. Such an analysis also illuminates how an understanding of this specialized role may be obscured by the more general social control function of police displayed in simple social units, resulting in differential and conflicting expectations about the role and functions of police in the modern world.
Six Score Years and Ten: Demographic Transitions in the American Legal Profession, 1850-1980
Authors: Halliday Terence C.
Published: June 2006

This paper employs data from the United States Census to raise questions about the historical demography of the legal profession in the United States between 1850 and 1980. I describe in turn (1) national lawyer population trends, (2) regional shifts in the number and ratio of lawyers to population, and (3) changes in the gender composition of the profession. The paper then considers issues concerned with demand theories of lawyer population dynamics, monopoly and supply theories, and theories of gender segmentation.
The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts
Authors: Kagan Robert A.
Published: June 2006

In an era of supposed judicial imperialism, the decline of judicial involvement in an important policy area raises questions about the dynamics of legal change. In the past thirty-five years, despite large increases in the volume of loans and delinquent debts, there has been a sharp decline in contested debt cases in state supreme courts and an apparent decline in trial courts as well. In seeking an explanation, this article concludes that for both creditors and debtors, litigation has become more costly in relation to alternative courses of action such as renegotiating payment terms, declaring bankruptcy, or writing off unpaid debts. The attractiveness of nonlitigational alternatives is attributed to (a) the “legal rationalization” of credit transactions by institutional lenders, (b) increased litigation costs stemming from enhanced debtors' rights, and most importantly, (c) “systemic stabilization”—welfare state measures, economic regulation, insurance arrangements, and market diversification that facilitates the attenuation and spreading of financial losses.
Lasalle Street and Main Street: The Role of Context in Structuring Law Practice
Authors: Landon Donald D.
Published: June 2006

Others have identified client differences as the primary structuring factor in the legal profession. Because of highly differentiated client groups, it is argued, the bar has become fragmented into a multiplicity of professions. Such a conclusion is based on research limited to metropolitan settings. Data from practitioners in rural Missouri and in a middle-sized Missouri city show that community context has a prior structuring influence. Community context appears to affect the probability of entrepreneurial practice, the variations in meaning associated with such practice, client mix and subsequent lawyer self-understanding, work characteristics, and extent of involvement in civic affairs. Further evidence suggests that the legal profession is indeed an “overdetermined social system” with roots that are set deeply in the primary economic and social structures of the setting in which it practices. The bar mirrors in its practice the issues typical of that setting and reflects in its social structure the degree of complexity found in the community. Community context appears therefore to be an additional force fragmenting the legal profession.
The Impact of Fee Arrangement on Lawyer Effort
Authors: Kritzer Herbert M. , Felstiner William L.F. , Sarat Austin , Trubek David M.
Published: June 2006

This paper focuses on the impact of fee arrangement on the amount of time lawyers are likely to devote to civil cases (“effort”). Drawing upon data collected by the Civil Litigation Research Project, we compare the behavior of lawyers working on an hourly fee basis with the behavior of contingent fee lawyers. Like previous work on this issue, the paper finds that fee arrangement does influence the amount of effort lawyers devote to a given case. However, contrary to previous work, the analysis indicates that the effect is not a simple effect on hours worked but a more complex effect on a number of aspects of lawyers' behavior. Together these produce an effect on hours that varies by size of case. For modest cases (with stakes of $6,000 or less), contingent fee lawyers spend less time on a case than hourly fee lawyers. Yet we find no statistically significant evidence of a differential in effort for larger cases but rather an indication that, if there is an effect, it may be in the opposite direction.
Community Justice, Capitalist Society, and Human Agency: The Dialectics of Collective Law in the Cooperative
Authors: Henry Stuart
Published: June 2006

This paper examines the relationship between social structures and community justice. It rejects both those arguments that see community justice as independent experiments for the development of an alternative system of justice and those that see such experiments as functioning solely in the interests of dominant legal and social structures. Based on a study of the collective justice systems of a variety of small-scale cooperatives, the paper develops a theory in which community justice is shown to be ambiguously related to the larger system in which it is set and to the groups and individuals who make up that system. This ambiguity, it is argued, is capable of transforming the wider structure, and the theory allows us to glimpse a potential for broad-based socio-legal change.
The Implications of Apology: Law and Culture in Japan and the United States
Authors: Wagatsuma Hiroshi , Rosett Arthur
Published: June 2006

The significance of apology after serious injury depends on social and cultural factors that appear to be understood differently in Japan and America. As a consequence, what is considered a sincere apology is not the same in the two societies. Moreover, the role of an apology as an ingredient in the formal resolution of legal disputes diverges. Salient legal aspects of apology are discussed, along with the possibilities that an apology may be a defense to a claim, that it may be an admission of another's claim, and that an apology may be a legal remedy for injury. The role in Japan of the formal letter of apology, shimatsusho, is described. It is suggested that apology may be an underdeveloped aspect of dispute resolution in America. There are some injuries when an apology alone surely is inadequate compensation, but there are other injuries when traditional common law remedies are unsatisfactory and an apology may be a crucial element in the recognition and restoration of human relationship.
Comment: The Implications of Apology
Authors: Haley John O.
Published: June 2006

In this comment the author argues that Wagatsuma and Rosett correctly identify a critical cultural influence on the role of law and legal process in Japan. He suggests, however, a broader view of the implications of apology, notably for the United States in both civil and criminal suits.
“As if the Injury was Effected by the Natural Elements of Air, or Fire”: Slave Wrongs and the Liability of Masters
Authors: Morris Thomas D.
Published: June 2006

Discussion about slavery and law has been raised recently to a high level of abstraction, but important aspects of the relationship remain unexamined. Under what circumstances were masters held liable for the damage that resulted from the wrongs of slaves? The question of distributing the burdens of accidents is a matter of policy, and involves important questions of power and responsibility. But, within an historical context, the range of choices open to a society is neither infinite nor static. This study suggests that legal traditions, styles of reasoning, and, above all, social relationships and perceptions (including those between slaveholders and nonslaveholders) help unravel the policy choices Southerners made in the years before the Civil War.
Labor Relations Litigation: Chile, 1970-1972
Authors: Ietswaart Heleen F.P.
Published: June 2006

On the basis of data dealing with the processing of labor grievances by state institutions in Chile in the period of 1970-1972, the author argues that litigiousness—the propensity to pursue grievances—was growing during that time. This increased litigiousness may be traced to the overall process of rapid sociopolitical change, in particular the growing political awareness of certain sectors of wage earners. The Labor Inspectorate responded positively to increased demand for justice, and encouraged socially well-focused grievance behavior by providing more adequate remedies. The labor courts, in contrast, were insensitive to the process of change. They showed no interest in developing an institutional assertiveness, either favoring or impeding aggrieved workers filing suit. Developments in litigiousness and litigation rates are analyzed in the light of the macro-social process of change that took place at the time.
Changing the Common Law: Effects of the Decline of Charitable Immunity
Authors: Caldeira Gregory A.
Published: June 2006

This paper examines the effects of the abrogation of one common-law doctrine—“charitable immunity”—on the operation and viability of one charitable institution—the hospital—in 24 states over the period 1951-1971. Four models of the effects of abrogation are considered. To test these models, I conceptualize the termination of immunity as an experimental treatment in an interrupted time-series design. I conclude that abrogation led to changes of quite varied magnitude in different states. Apart from abrogation, the onset of Medicare and Medicaid, and changes in the economic environment had considerable effects on hospital costs. In states abrogating after the beginning of federal intervention in medical care, judicial doctrine had no discernible impact on the costs of hospitals.
Mediation in Small Claims Court: Achieving Compliance Through Consent
Authors: McEwen Craig A. , Maiman Richard J.
Published: June 2006

In Maine defendants in small claims court are nearly twice as likely to comply fully with mediated outcomes as with judgments imposed by the court after adjudication. Some of the explanation can be attributed to specific features that are more common to mediated and negotiated settlements than to adjudicated outcomes. In addition, consensual processes lead to social psychological pressures for compliance that are not associated with authoritative judgments. Our findings point to the value of consent—the most central difference between mediation and adjudication—as an adjunct to command in promoting compliance with rules and orders.
The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience
Authors: Tyler Tom R.
Published: June 2006

The purpose of this study is to explore the role of perceived injustice in generating dissatisfaction with legal authorities. Using data collected in interviews with a sample of defendants in traffic and misdemeanor court, I compare the influence of case outcomes upon attitudes toward judges and courts to that of distributive and procedural justice. The results suggest that among the defendants studied the major determinant of satisfaction with legal authorities is perceived fairness. Once the influence of perceived fairness is considered, case outcomes explain no additional variation in attitudes toward courts and judges. In the conclusion, possible implications of this finding are discussed.
The Functions of Courts in the United States, 1950-1980
Authors: Willard Hurst James
Published: June 2006

Despite increased research into court operations, reliable knowledge about court functions continues to be scant. Case volume has grown, but court dispositions account for a small part of all dispute resolutions. Most matters which reach disposition in court end at some stage of trial court proceedings. Judges also continue to be makers of general public policy. Common law growth has dwindled. But courts contribute much to the content of public policy through their interpretation of statutes and their review of executive and administrative action. Judicial review of the constitutionality of legislation has declined sharply in fields centered on the economy, while expanding in areas of civil liberties.
Civil Justice Research and Civil Justice Reform
Authors: Rosenberg Maurice
Published: June 2006

If the law's traditional road to reform were the only path available, we would still be trying to improve the administration of justice by theorizing and “reasoning” our way to betterment. That is no longer the only way. Recent decades have seen a rise in the use of systematically gathered data to identify problems and devise responses to aid the justice system. This new path takes the investigator into the field rather than into the library, relying on the skills of the social scientist and statistician as well as those of the legal thinker.
Studying Courts in Context
Authors: Trubek David M.
Published: June 2006

Civil courts and litigation, long a neglected area of legal scholarship (Hurst, 1981), have begun to receive more attention and due recognition of their important role in the legal system and society. Analyses of what the civil courts do, and fail to do, are taking their place beside the numerous studies of the criminal courts. A critical literature has emerged, with some arguing that our system provides no effective forum for many civil complaints (Nader, 1980) and others expressing concern that the adversarial mode of dispute processing—the hallmark of Anglo-American civil procedure—may be costly and inappropriate for many conflicts (Fuller, 1978; Horowitz, 1977; Simon, 1978). Critics have also pointed to rising litigation rates and court caseloads, generated spectres of a “litigation explosion” or “crisis in the courts,” and worried about excessive litigiousness (Barton, 1975; Manning, 1977; Rosenberg, 1972).
Grievances, Claims, and Disputes: Assessing the Adversary Culture
Authors: Miller Richard E. , Sarat Austin
Published: June 2006

The existence of a dispute has typically been the starting point for inquiries into dispute processing and resolution. This paper explores the origins of disputes in grievances and claims. It reports on a survey of households estimating the rates of grievances, claims, and disputes which could have been processed by a civil court of general jurisdiction. The paper also explores multivariate models of the probabilities that households experience substantial grievances, that claims for redress are made, and that disputes result. The models assess the contributions of household and problem characteristics to these transitions. By treating disputes as problematic outcomes of injurious experiences, the paper contributes to an assessment of the adversariness of American society.
A Microeconomic Model of Household Choice: the Household as a Disputant
Authors: Gollop Frank M. , Marquardt Jeffrey
Published: June 2006

This paper applies the methodology of economics to the analysis of resource allocation by households with actual or potential disputes. A model of household production of “legal welfare” is constructed. Household time and money investment decisions over time are analyzed within the household production framework. Finally, a simplified set of functions for measuring household demand for dispute resolution goods and services is presented and discussed.
Institutionalizing Mediation: The Evolution of The Civil Liberties Bureau in Japan
Authors: Rosch Joel
Published: June 2006

The Japanese Civil Liberties Bureau (CLB) was created to promote individual rights but evolved into an organization that mediates disputes between private parties. Unlike comparable institutions in other societies, the CLB is able to mediate large numbers of cases effectively. Although the conditions under which the agency was created and continues to flourish may be unique to Japan, the ability of the CLB to function in a complex, urbanized society should not be attributed to Japanese tradition and culture alone. Instead, institutions like the CLB play an important role in the shaping of that culture, helping the Japanese to settle disputes without litigation and enabling them to perceive their society as one with little need for litigation. The experience of the CLB should make us rethink some of our commonly held assumptions about how the Japanese deal with disputes.
Prosecutorial Discretion: The Effects of Uncertainty
Authors: Albonetti Celesta A.
Published: June 2006

In this paper the author analyzes the exercise of prosecutorial discretion to “go forward” with charges. The author examines the relationship between sources of uncertainty in decision making and the initial decision to begin the criminalization process. Organizational theory bearing on uncertainty avoidance provides the perspective guiding the analysis. The author uses a maximum likelihood procedure to estimate the net effects on the probability of prosecution of a set of variables measuring uncertainty emerging within the backdrop of prosecutorial concern for obtaining a conviction at a jury trial.
Support for the Death Penalty; Instrumental Response to Crime, or Symbolic Attitude?
Authors: Tyler Tom R. , Weber Renee
Published: June 2006

In this study the instrumental and symbolic perspectives on public support for the death penalty were directly compared within the context of a single survey of citizen attitudes. The results suggest that both instrumental and symbolic concerns influenced death penalty support. When the relative influence of the two factors was directly assessed, the symbolic perspective was found to exercise the major influence upon support for capital punishment, while the influence of instrumental crime-related concerns was small. These results suggest that death penalty support is one aspect of general political-social ideology, rather than a response to crime-related concerns or experiences.
Worker Safety, Law, and Social Change: The Italian Case
Authors: Calavita Kitty
Published: June 2006

This paper is a case study of the occupational safety and health provisions of the Italian Workers' Rights Law of 1970, which gave Italian workers the broad right to regulate safety and health conditions at the shop level. The paper traces the political history of this controversial legislation and workers' and employers' responses to it. It then provides evidence that the law was neither the mere “symbolic gesture” nor the tool to “open new horizons” that observers variously predicted. The paper argues that to account for the formulation of this law and its ambiguous impact, the economic and political contradictions into which it was inserted must be placed at the center of analysis. It thus challenges the kind of legal determinism implicit in many analyses of the sociology of law that make the state and legal phenomena the central actors.
Popular Use of Yugoslav Labor Courts and the Contradiction of Social Courts
Authors: Hayden Robert M.
Published: June 2006

A basic tenet of communist legal theory is that the judicial function should be socialized, that is, executed by laymen rather than by professional judges. Social courts have been created in all of the Eastern European socialist countries to fulfill this mandate. However, the little empirical evidence available on the use of these courts indicates that they are rarely used voluntarily by individuals, but rather are primarily instruments of state social control over individuals.

The major exception to this pattern of use is exhibited by the Yugoslav version of social labor courts, the Courts of Associated Labor (hereafter CAL). These courts are heavily used, and over 90 percent of their cases are brought by individual workers. This paper discusses why the CAL are attractive to individual workers, drawing on ethnographic research in the trial CAL in Belgrade and on the political arguments surrounding a 1982 parliamentary effort to “reform” the CAL out of effective existence. The basic conclusion is that the CAL are successful in attracting individual workers as litigants because they are not really social courts. Further, it is suggested that the idea of social courts is contradictory: Such courts can offer little to most members of society, but instead are even more prone than regular courts to be used as mechanisms for social control by politically powerful elites.
Regulated and Unregulated Sentencing Decisions: An Analysis of First-Year Practices Under Minnesota's Felony Sentencing Guidelines
Authors: Moore Charles A. , Miethe Terance D.
Published: June 2006

Determinate sentencing reform in Minnesota aimed at enhancing sentencing uniformity and neutrality. According to official reports by the Minnesota Sentencing Guidelines Commission, both of these goals were largely (although not completely) achieved during the first year of guideline implementation. However, methodological shortcomings in these reports question the true effectiveness of sentencing reform. Moreover, Minnesota's felony sentencing guidelines do not encompass the full range of sentencing options available to the courts. Our study reanalyzes the Commission's data to evaluate the degree of sentencing uniformity and neutrality achieved under regulated and unregulated sentencing decisions. Our results generally confirm the Commission's reports that regulated sentencing practices were significantly more predictable and neutral than unregulated practices. We conclude that Minnesota's reform efforts have succeeded where those other states have failed because of the presumptive (i.e., legally mandated) nature of their sentencing guidelines.
Criminalization and Decriminalization in Soviet Criminal Policy, 1917-1941
Authors: Solomon Peter H.
Published: June 2006

In the early and mid-1920's Soviet courts were overwhelmed with new criminal business, prompting Bolshevik leaders to transfer most cases of petty crime away from the courts either to administrative proceedings or to lay bodies (comrades' courts and village social courts). This article examines the Bolshevik experiment in decriminalization and diversion—its causes, its politics, and its consequences both for the courts and for the alternatives to them. The crisis of congestion in early Soviet courts resulted neither from a growth in actual criminal behavior nor from prosecution of new crimes devised by the Bolsheviks. It owed its origin to the elimination after the Revolution of various extrajudicial mechanisms used by the Tsars for handling infractions, thereby producing a criminalization of traditional misdeeds. The subsequent adoption by Soviet leaders of a policy of decriminalization followed careful study, and despite the turbulent times bore the mark of rational decision making. And the policy was implemented; a large number of cases were shifted first to administrative processing by police officials and then to lay tribunals, especially to the village social courts, which proved more viable than the comrades' courts which were established in factories. But the waves of diversion did not relieve court congestion, as in each instance new sorts of cases replaced those moved away. The experience tended to confirm the thesis that the amount of crime prosecuted in a society is a function of the capacity of its criminal justice institutions.
The Effects of the Police On Crime: A Rejoinder
Authors: Jacob Herbert , Rich Michael J.
Published: June 2006

At the very least, Wilson and Boland and we agree on the complexity of the relationship between governmental actions and social effects. Thus we believe as they do that it is not an easy task to disentangle the effects of policing on crime. We do differ on analytic strategy. We believe that time-series analyses tell us more than cross-sectional analyses do about causal patterns.
Class Structure and Legal Practice: Inequality and Mobility Among Toronto Lawyers
Authors: Hagan John , Huxter Marie , Parker Patricia
Published: June 2006

Can professional groups, such as lawyers, be incorporated within class analyses? Results from a Toronto survey indicate that lawyers can be usefully located within class categories operationalized in terms of power relations. The class structure of legal practice in Toronto is dominated by older, Anglo-Saxon Protestant males with degrees from Canada's elite law schools, who are practicing corporate and commercial law for predominantly corporate clients. Notwithstanding evidence of recently and substantially improved mobility prospects, we found an absence of Jewish lawyers from the capitalist class and a tendency for women to remain in a legal working class. We also discovered the emergence of a new working class in the legal profession that, perhaps unexpectedly, includes young associates in the corporate and commercial departments of large firms. The exploitation of this “professional proletariat” is as clear as are their relatively high salaries and promising prospects of sharing in the power relations that facilitate their domination and limited autonomy. We argue with qualitative data that it is the combination of high salaries, good mobility prospects, and a highly competitive environment that allows this group to be exploited with very little chance of rebellion. More generally, this kind of class analysis opens new possibilities in the comparative and historical study of lawyers and other professional groups.
Law, Change, and Litigation: A Critical Examination of an Empirical Research Tradition
Authors: Munger Frank
Published: June 2006

This article examines the theory and empirical methods of recent studies of law and litigation. It argues that the recent interest in longitudinal studies of trial court dockets proceeds from a deeply rooted functionalist theoretical tradition in empirical work on courts. Functionalist theory, through its sophisticated application in the work of James Willard Hurst, is described as the direct or indirect source of theory for longitudinal litigation studies. Though there are many reasons for suspecting that fuctionalist theory is inadequate, it has seldom been rejected through proper empirical testing of its hypotheses. The theory, often poorly conceptualized, is discussed here in detail. Hypotheses derived from a careful reading of Hurst and others are operationalized, employing data from the dockets of three West Virginia trial courts between 1870 and 1925, and a test of the hypotheses is constructed taking advantage of the historical variation in the economic development of three neighboring counties. Conclusions supported by the analysis of these data are largely prophylactic. Research can address the widespread problems of poor conceptualization and data analysis that have limited the value of much longitudinal trial court docket research. If court function is to continue to be the focus, theory, it is argued, must take account of the social organization of relations between litigants outside the courts, as well as the organization of the courts themselves. Data analysis must address the measurement of the power, litigation capacity, and perception of usefulness of litigation held by litigants. Illustrating the value of hypothesis testing as employed here, it is contended, these conclusions about appropriate future directions and methods for longitudinal court docket research are based on properly supported findings.
A State Court's Clientele: Exploring the Strategy of Trial Litigation
Authors: McIntosh Wayne V.
Published: June 2006

This paper explores the activities of civil litigants in a state trial court between 1820 and 1970. Litigation is considered as essentially a political activity in which the parties utilize the judicial system to promote their respective interests. The analysis indicates that all parties initiate and defend cases consistently in narrow fields across time, representing interests to which the litigants are easily connected. Moreover, if litigation has a large political component, then the inequities and balances of power existing between parties in the wider community probably affect judicial outcomes. To pursue this notion, I classify the court's clientele as either individuals or organizations. Evidence suggests that utilization of the legal process in general, and case outcomes in particular, are determined in part by the pairing of litigants opposing each other. Individuals have more often initiated than defended actions, and the dollar value of their claims has steadily increased, especially against organized opponents. By contrast, organizations have defended much more often than they have filed claims, and their claims are consistently smaller than those pursued by individuals. In general, judicial demands and outcomes vary systematically but consistently over time, according to the legally active group involved, the adversary pairing, and the issues between them.
Trial Courts in the United States: The Travails of Exploration
Authors: Jacob Herbert
Published: June 2006

This paper examines the last 12 years of research on trial courts. It focuses on three shortcomings of that research. The first is a failure to examine distributional questions about what kinds of benefits and sanctions are apportioned to which members of American society as well as the place of adjudication in the course of dispute processing. The second shortcoming is a failure to integrate the various theoretical perspectives which have won widespread acceptance. The third is an undue concentration on comparative designs to the neglect of longitudinal analyses within single jurisdictions.
Law, Time, and Community
Authors: Engel David M.
Published: June 2006

Research concerning law and social change has almost always treated time as a universal constant and a baseline against which variations in behavior can be measured. Yet a significant literature exists demonstrating that researchers can also regard time as a socially constructed phenomenon requiring analytic interpretation in its own right. This article explores two aspects of the human experience of time that were especially important for the residents of a rural American community: the sense of time's iterative character and its linear or irreversible quality. These two ways of experiencing and conceptualizing time played a significant part in efforts by residents of Sander County, Illinois, to define their community and interpret the social, cultural, and economic transformations it was undergoing. They were also important in the residents' efforts to frame and define conflict within the community and to determine when law should or should not be invoked. The article examines some ways in which the analysis of varying conceptions of time within a community can enhance understanding of expectations, perceptions, and values concerning law in a changing society.
Equity and Discretion in a Modern Islamic Legal System
Authors: Rosen Lawrence
Published: June 2006

Kadijustiz is a concept well known from the work of Max Weber. Its essential element, the means by which judicial discretion and equitable assessments are actually made, is, however, less clearly documented. Drawing on a detailed study of a qadi's court in contemporary Morocco, the present article shows how cultural assumptions give shape to the judge's modes of reasoning, factual assessments, and choice of remedies. The study suggests that if careful attention is given to the broader cultural precepts within which judicial discretion is located, Kadijustiz, whether represented by an Islamic court official or a Western justice of the peace, will be seen to possess definite regularities.
Impact of Procedural Modifications on Evaluations of Plea Bargaining
Authors: Houlden Pauline
Published: June 2006

An experiment was conducted to assess the preferences of undergraduates and inmates for two possible modifications of plea bargaining: allowing the defendant to participate and including a state-paid or community-volunteer mediator in the negotiation. Respondents were asked to role-play a defendant who was either innocent or guilty of a murder and confronted with either weak or strong state's evidence. Results indicate that all defendants preferred plea bargaining procedures which included the defendant. Undergraduates preferred procedures which involved a mediator, but inmates were neutral toward this modification. Undergraduates preferred a state-paid mediator, while inmates preferred a community volunteer. Several interactions qualifying these effects are discussed in the paper.
A Philosophy of Science Perspective on the Validity of Research Conclusions: Response to Anderson and Hayden
Authors: Houlden Pauline
Published: June 2006

Anderson and Hayden argue that meaningful policy implications cannot be drawn from research which lacks “structural, sociological, and conceptual verisimilitude.” Pointing to my article, “Impact of Procedural Modifications on Preferences for Plea Bargaining” (pp. 267-291) as an example of research which lacks such verisimilitude, they conclude that I am unjustified in drawing conclusions with policy implications. I disagree with them for four reasons. Anderson and Hayden have: 1) based their arguments on a misunderstanding of Lind and Walker's discussion of the circumstances in which research need replicate reality; 2) misconceived the nature of theory; 3) created an unnecessary and unsupportable distinction between “structural,” “sociological,” and “conceptual” verisimilitude; and 4) misunderstood and misrepresented my article.
Political Claims, Legal Derailment, and the Context of Disputes
Authors: Canan Penelope , Satterfield Gloria , Larson Laurie , Kretzmann Martin
Published: June 2006

This article is about claims manipulation and the influence of context on the careers and outcomes of disputes. We explore eleven cases in which civil tort action was used when citizen opponents petitioned the government (lawsuits called SLAPPs or “strategic lawsuits against public participation”). Rather than being totally contingent on interactional and situational factors, these disputes followed two general trajectories of transformation, depending on whether they arose from an “internal” or “external” setting. Disputes initially tied to a broad cultural or political claims base were transformed into more narrow and concrete claims. Yet the original political claims of the lawsuit targets were less likely derailed.
Employer Sanctions Violations: Toward a Dialectical Model of White-Collar Crime
Authors: Calavita Kitty
Published: June 2006

This article examines violations of the employer sanctions provision of the Immigration Reform and Control Act of 1986 as a case study in white-collar crime. Using interviews with 103 “immigrant-dependent” employers in three southern California counties, the study reveals that employer sanctions violations are numerous and that violators feel relatively protected from detection and punishment. It then traces both the prevalence of this crime and the impunity felt by violators beyond a simple cost/benefit analysis on the part of employers to the nature of the law itself. The study shows how legislative and implementation processes produced a low-risk crime, indicating that the shape the law took from the beginning ensured that its effect would be primarily symbolic and that violations would be widespread. This pattern suggests that the symbolic nature of the law and subsequent violations are dialectically linked and that both stem from contradictions inherent in immigration lawmaking. The article concludes that lawmaking and lawbreaking, while analytically distinct processes, must be seen as connecting pieces of the same theoretical puzzle.
Law and The Constitution of Soviet Society: The Case of Comrade Lenin
Authors: Beirne Piers , Hunt Alan
Published: June 2006

In this paper we investigate a largely unrecognized but nevertheless important chapter in the legal and political history of Soviet Marxism: the simultaneously coherent and contradictory theoretical tendencies in Lenin's pronouncements about law, legality, and delegalization (“the withering away of law”) during the socialist transition. We identify and discuss these tendencies as they unfold against the historical background of the Russian Revolution. We argue that Lenin's political and theoretical objections to legal formalism greatly contributed to the tragic neglect of constitutional mechanisms needed to secure the radical democratic motives of the revolutionary process.
Comment on Daniels
Authors: Baum Lawrence
Published: June 2006

Stephen Daniels' essay examines the series of studies of state supreme courts by Bliss Cartwright, Lawrence M. Friedman, Robert A. Kagan, and Stanton Wheeler, studies that report the results of what I will call the State Supreme Court Project. In this comment, I will not focus on the critique that Daniels makes of these studies; rather, I will consider a broader set of issues that his essay and the articles that he discusses raised for me.
Critique of Habermas's Contribution to the Sociology of Law
Authors: Eder Klaus
Published: June 2006

In his discussion of modern society, Habermas begins with Weber's thesis of a universal rationalization process within which the rationalization of law plays a central part. Thus his starting point is the classical thesis of the formal rationalization of law as advanced by Weber (1960; Schluchter, 1979). Habermas tries to show that Weber's theorizing is deficient because he underestimates the specific historical role of the materialization of law (1981, Vol. 1: 332). Additionally, such theorizing does not allow us an adequate grasp of some recent developments that proceduralize law (Teubner, 1983, 1984; Eder, 1986). From the perspective of Weber's theory of formal rationalization, the processes that materialize and proceduralize law appear to be aberrations from the normal path of modern legal development. Habermas suggests that, far from being deficient, these processes are necessary forms of law in the process of modernization. The appearance of deficiency proceeds from Weber's attempt to separate morality from law and to conceptualize a moral-free law, a corollary of Weber's plea for a value-free science. Habermas concludes that formal rationalization is an inadequate model of law operating in the modern welfare state. Thus a new model is in order.
Comment on Eder
Authors: Tushnet Mark
Published: June 2006

The first difficulty in Eder is that the experience of academics working in the common law tradition renders us skeptical about the possibility that there could be something like an overall sociological theory of “the law.” What those in the Weberian tradition, including for these purposes Habermas, see as the law appears to us as quite a jumble of relatively discrete topics, such that the law of torts which looks different from the law of criminal procedure and, what is worse, the law of the sixth amendment's requirements with respect to counsel which looks different from the law of the sixth amendment's requirement with respect to confrontation of adverse witnesses. Nor does it seem to us that there are any readily available generalizations concerning long-term trends, as distinct from short-term variations attributable to differences among judges in their political preferences.
A Litigious People?
Authors: Nader Laura
Published: June 2006

The idea that Americans are inherently litigious has for so long been imprinted on the American mind that it has been accepted as conventional wisdom, and observations to the contrary seem counterintuitive. Whether one looks at the contemporary media, insurance copy, American Bar Association literature, or speeches by leading judges or Evangelicals, or academic writings such as those of Kagan (1981) or Auerbach (1983), the generalization is there: Americans are a litigious people, “the most litigious people in the world,” according to the many public presentations of the former Chief Justice of the U.S. Supreme Court, Warren Burger. The challenge to the notion that Americans are inherently litigious has come in the form of careful examination of the statistics used to support the increase in litigation theory (Galanter, 1983, 1986), and surveys comparing data from the United States with that of other industrial democracies (Johnson and Drew, 1978). In Praying for Justice Greenhouse uses another kind of data, and while her book does not disprove the stereotypical image of the litigious American, at least she offers another picture: of Americans who not only avoid legal action but who have even developed a set of injunctions against conflict and the voicing of interpersonal disputes. Greenhouse's book is part of a growing body of work that finds, contrary to the popular stereotype, Americans seem to prefer avoidance, or negotiation, to other modes of dispute resolution.