bluuebunny/crossref_metadata_2025 huggingface dataset:
Some Research Perspectives for Looking at Legal Need and Legal Services Delivery Systems: Old Forms or New?
Authors: Marks F. Raymond
Published: June 2006

This paper reviews existing empirical studies, finding that most have adopted an explicit or implicit model of legal need which is based solely on past use patterns. There is an absence of linkage between problem solving styles, uniqueness of problems, community networks of support, and concepts of social justice. The central problem confronting groups is how to convert their interests into some semblance of property interests or expectation. This invites legal change. Much of the past preoccupation with the problem of need conceals an absence of attention to crucial variables about quality of legal service, lawyer outlook and socialization, and the dynamics of the lawyer-client relationship. Lawyer perception may be as important, if not more important than client perception in determining the nature and scope of legal service. The author suggests, therefore, that any functional definition of legal need has to include a structural view of the legal profession.
Delivering Legality: Some Proposals for the Direction of Research
Authors: Galanter Marc
Published: June 2006

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.
Measuring the Quality of Legal Services: An Idea Whose Time has Not Come
Authors: Carlson Rick J.
Published: June 2006

There is a record of concern about the quality of legal services. And there is a record of the attempt to ensure quality through restricting the admission of persons to the practice of law. But beyond this, there is no “system” for, nor for that matter, any theory about, assuring the quality of legal services. This paper proposes such a system, and at the same time offers a theoretical framework for its development. And this is done despite the fact that it is highly unlikely that any such system will be utilized in the near future.

The paper develops its theoretical base, and its concrete proposals, from an extended examination of the systems of quality assurance which have been developed for medical care services. Given a sufficient degree of similarity between the medical care and legal service systems, analogical analysis is used.

The paper concludes that a quality assurance system can be fashioned for the provision of legal services, even though such a system is likely to remain a theoretical construct for the foreseeable future.
Elegant Models, Empirical Pictures, and the Complexities of Contract
Authors: Macaulay Stewart
Published: June 2006

Studies in nations with different social and economic systems indicate that the norms of contract law are seldom applied through the litigation process and that disputes are avoided or settled where there is a long-term relationship between the parties. Yet legal scholarship, as well as many proposals for reform, continue to be based on a picture of the contracts lawsuit, to a great extent. It is likely that this distortion is prompted by overgeneralization from a nonrepresentative sample of possible and actual disputes, and by the indirect influence of legal norms; it may also express the needs of legal scholars and reformers. It is questionable whether capitalist, socialist, or mixed economic systems would benefit if more disputes were resolved by the application of officially sanctioned contract norms.
Law in The Kibbutz: A Reappraisal
Authors: Shapiro Allan E.
Published: June 2006

The relationship between social structure and the development of legal institutions is the central theme in the classic study-by Richard Schwartz, now more than two decades old, “Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements” (1954). The article is based on an examination of the systems of control developed in two rural communities, one a kibbutz (or kvutza), based on social and economic collectivism; the other a moshav, a cooperative settlement with private property and social life geared to the nuclear family. Internal controls in both communities were exercised through a General Assembly, composed of all members, and by a number of specialized committees. In contrast to the moshav, which had a Judicial Committee performing an adjudicatory function, Schwartz found that the kibbutz “had no distinctly legal institution” and that its control system “must be considered informal rather than legal” since public opinion constituted its sole sanction (Schwartz, 1954: 471,476).
Trial by Jury: Some Empirical Evidence on Contested Criminal Cases in England
Authors: Baldwin John , McConville Michael
Published: June 2006

The authors of this article attempt to examine jury performance by collating and comparing views on the jury's verdicts drawn from other participants in the trial. This research is based on a study of jury trials heard in the Crown Court at Birmingham, England, together with additional material drawn from a sample of cases in London. It shows that doubts about both acquittals and convictions by jury were expressed with a surprising frequency. An examination of the remedies available to correct miscarriages of justice demonstrates the ineffectiveness of current appeals procedures. The authors conclude that it is necessary to evaluate the jury's function within a political context.
The Impact of Changes in Judicial Doctrine: The Abrogation of Charitable Immunity
Authors: Canon Bradley C. , Jaros Dean
Published: June 2006

Common law doctrines may have as significant an impact on everyday life as those of the U.S. Supreme Court. This paper focuses on the abrogation of the doctrine of charitable immunity, which has occurred in 32 states since World War II. We investigate the impact of this change on average hospital room rate charges in each state. Both static and dynamic analyses are conducted. In both we control for economic and inflationary variables by using state per capita income data. Static analysis involves year-by-year comparison of room rate charges in abrogating states with those in states which retain the doctrine. The results are inconclusive. In dynamic analysis we identify those states which abrogated the doctrine and note changes in their average room rates at periods two, four, and six years subsequent to the abrogations. We also identify states which underwent no change in doctrine over the same periods. The amounts of room rate change in the two categories of states are then compared. We had expected the amount to be greater in abrogating states, and in fact this is almost universally the case. This strongly suggests that abrogation of charitable immunity has produced a demonstrable increase in hospital room rate charges.
Federalism and the American Economic Order, 1789-1910
Authors: Scheiber Harry N.
Published: June 2006

From the beginning of nationhood under the Constitution to the present day, the federal system of American government— what Madison termed “a novelty and a compound,” and what Hamilton declared was “necessarily a compromise of dissimilar interests and inclinations”—has been of profound importance in shaping the nation's economic order. Power has shifted over time between the national government and the constituent state governments; and these structural shifts have had an impact upon policy process and outcomes, as well as upon the economy's institutional framework. The study of federalism has long been, of course, a concern of scholarship in constitutional law, political science, and history. Moreover, historians of American politics have lavished much attention upon the great conflicts of interest groups, parties, and ideologies, from 1787 to the New Deal and after, over the basic question of the extent to which power ought to be centralized in our federal system. And yet no scholarly studies have been specifically devoted to the analysis of federalism as an institutional variable both influencing the development of enterprise in the private sector and influencing economicpolicy processes and the substance of public economic policy. This paper attempts such an analysis. Part I reviews the recent literature on law and economic history, and Part II considers some theoretical issues. Parts III and IV examine historic American federalism in relation to governmental institutions and power, public economic policies, and the dynamics of the economy's private sector.
Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain
Authors: Toharia José J.
Published: June 2006

The present Spanish regime is not a democratic one if by democracy we mean a political situation which:

supplies regular constitutional opportunities for peaceful competition for political power (and not just a share of it) to different groups without excluding any signifcant sector of the population by force (Linz, 1964).

Rather, it has been characterized as authoritarian, using that term to describe a distinct genus besides democracy and totalitarianism. Generally, political democracy and judicial independence tend to be associated, the former being considered a necessary though not sufficient precondition for the latter. Thus, one might be inclined to expect contemporary Spain to display a strongly politicized and ideologically uniform judiciary. The first section of this paper will suggest, however, that this is far from being the case: recent survey data from a national sample of Spanish judges testify to the existence of a remark- able degree of ideological diversity among the members of the Spanish judiciary. Such a pattern is explained in the second section of the paper as the correlate of the considerable degree of independence from the political system which the Spanish judges seem to enjoy with respect to their selection, training, promotions and everyday activities. This unexpected coexistence of a non-democratic political system with a substantially independent judiciary may be seen as a puzzling paradox requiring explanation. The last section of this paper attempts to provide it, pointing to the de facto existence in contemporary Spain of two parallel systems of justice: the ordinary and the extraordinary (the second being in charge of all cases with an actual or potential political relevance). The existence of an independent ordinary judiciary, it is argued, is thus made possible by the existence of a parallel set of special courts closely supervised by the regime.
Involuntary Commitment for Mental Disorder: The Application of California's Lanterman-Petris-Short Act
Authors: Warren Carol A. B.
Published: June 2006

One hundred persons who were committed involuntarily to mental hospitals on 72-hour holds under California's Lanterman-Petris-Short Act (1967), and who filed writs of habeas corpus, were observed during petition hearings. Involuntary commitment criteria were frequently “bargained down” from dangerous to others, dangerous to self, and gravely disabled during the 72-hour hold to gravely disabled at the petition hearing. Most frequently used criteria for continued hospitalization as gravely disabled included prior hospitalization, refusal to take medication, and failure to cooperate with the hospital system. Persons adjudged dangeros to self were generally suicidal in action or talk. Although a minority of persons judged at the petition hearing to be dangerous to others were assaultive or threatening, evidence for the imminence and seriousness of dangerousness was not offered.
Reformed Commitment Procedures: An Empirical Study in the Courtroom
Authors: Hiday Virginia Aldige
Published: June 2006

Court proceedings and records were analyzed to evaluate statutory reform of mental commitment procedure in one state with a typical statute. A marked improvement over practice described in previous research was found: court proceedings were not rapid and perfunctory. However, the court still often deferred to psychiatric opinion even when a preponderance of evidence showed it to be unsubstantiated.
Media Ombudsmen: A Critical Review
Authors: Palen Frank S.
Published: June 2006

This article summarizes a decade of comment on the most common form of “media ombudsman” in the United States and Canada, the newspaper action line. Widely adopted after 1965, action lines were expected by journalists and newspaper owners to play a significant role in increasing social justice, improving the commercial viability and public image of the press, and reforming the news business. The picture of social problems and proposed solutions presented in the printed columns reflects a reformed version of traditional newspaper populism. However, the available evidence suggests that the characteristics of the people who complain to action lines, as well as the economic, bureaucratic, and ideological forces within media organizations, prevent the fulfillment of the promise of social justice implicit in populist rhetoric. Instead of aggressive defenders of the rights of “John Q. Public,” action lines are primarily passive referral services which transmit complaints to traditional public and private authorities. Action lines attract a great many users not only because they promise practical assistance in settling disputes, but also because a response from the newspaper is a significant form of personal recognition and a confirmation that one's problem is legitimate. However, the unsystematic way newspapers process disputes assures that the column is unlikely to have much effect on the institutional sources of chronic grievances. The article concludes with a comparison of action lines to the use of the media by “moral entrepreneurs” to increase the impact of reform movements.
Jury Selection as a Biased Social Process
Authors: Alker Hayward R. , Hosticka Carl , Mitchell Michael
Published: June 2006

Models of the jury selection process in a Federal District Court are developed from court records, legal standards, and other information and then compared to determine sources of bias. The jury selection plan developed by the court has been operationally reformulated using 1970 census data to identify bias resulting from even a fair application of the plan. This normative model is also used to test for biases in the procedures and the results of the 1970 plan implementation in Eastern Massachusetts based on voter registration lists. Findings support the hypothesis that the juror selection process effectively discriminates against the poor, the young, racial minorities, women, and persons with low and high educational attainment. Sources of bias are found in the use of outdated voter registration lists, unreturned jury qualification questionnaires, and the excuse process. Recommendations are given for ways to reduce the extent of this bias.
Jury Selection in Erie County: Changing a Sexist System
Authors: Levine Adeline Gordon , Schweber-Koren Claudine
Published: June 2006

Prior to January 1974, jury selection procedures violating basic standards of randomness had resulted in juries in Erie County, New York, which were overwhelmingly male. This paper describes the biased selection procedures, their discovery by volunteers engaged in a project to ensure a fair trial for prison inmates under indictment for events occurring in the Attica uprising, and the consequences of both improved procedures and an amended law for sexual equality in jury selection.

Two linkages between law and society are explored. First, the existence of a “woman's exemption” had led the jury commissioner and staff to make systematic prejudgments about women's behavior which then resulted in their underrepresentation on juries. Second, lawyers and social scientists worked together, using procedures and concepts from both disciplines to achieve a goal of mutual interest: improvement of the methods of jury selection, so that jury composition would more closely resemble the composition of the community. Possibilities and problems of social scientists working with lawyers are described briefly.
Race, Institutional Rule Breaking, and Disciplinary Response: A Study of Discretionary Decision Making in Prison
Authors: Poole Eric D. , Regoli Robert M.
Published: June 2006

This study attempted to construct and test a discretionary justice model of disciplinary response to inmate rule breaking in a medium-security prison for adult male felons (N = 182). We found, first, that while black and white inmates were equally likely to engage in rule-breaking activity, blacks were more likely to be officially reported for rule infractions. Second, a prior record of official disciplinary action, itself shown to be a product of discriminatory response, influenced subsequent sanctioning decisions, thus amplifying the racial bias. Third, analyses of separate models for black and white inmates revealed the importance of prior record to be differentially imputed on the basis of race. The study concludes with a discussion of the nature and impact of stereotypic expectations and labeling processes in the reaction of guards to inmate behavior.
The Limits of Bail Reform: A Quasi-Experimental Analysis
Authors: Flemming Roy B. , Kohfeld C. W. , Uhlman Thomas M.
Published: June 2006

This study of bail reform in a large urban court employs an interrupted time-series research design spanning a six-year period, and examines case data for over 38,000 defendants. Two reforms—creation of a pretrial release agency and adoption of deposit bail—are evaluated to determine whether they had statistically significant impacts on the likelihood of pretrial release, the probability of financial losses for defendants, and the avoidance of bondsmen in the pretrial process. Weighted regression analysis was used to compensate for the possibility of autocorrelation in the time-series data. The reforms proved a mixed success. Explanations for these findings emphasize the role of previous policy patterns and procedural rules in restraining the scope of bail reform and the political forces encouraging the use of bail for preventive detention.
Jury Size and Verdict Consistency: “A Line has to be Drawn Somewhere”?
Authors: Roper Robert T.
Published: June 2006

This research tests the simulated impact of Supreme Court decisions which allow for smaller than twelve-member juries. It identifies variation in judicial output that results from competing operating structures of jury decision making. The research employed a quasi-experimental design to address important problems of simulation, such as structural and functional verisimilitude. The sample consisted of 110 juries composed of nearly 1000 jurors. The findings indicate that a jury's size affects its behavior. Larger juries hang more often than smaller ones do. The degree to which this avoids the committing of a Type I or Type II judicial error remains to be seen; nevertheless, the Court was wrong in assuming that there are no differences in the behavior of twelve- and six-member juries.
The Effects of the Police on Crime: A Second Look
Authors: Jacob Herbert , Rich Michael J.
Published: June 2006

This paper is a replication of the analysis undertaken in 1978 by James Q. Wilson and Barbara Boland. We use time-series data for nine cities for portions of the period 1948-1978 to test the effect of aggressive policing on the robbery rate. Contrary to Wilson and Boland, we do not find moving violations to be a useful indicator of police aggressiveness. We also conclude that using the arrest/offense ratio introduces artifactual negative correlations. When one examines police expenditures, the size of the police force, the arrest rate, and the concentration of the police on robbery arrests, one generally finds positive relationships rather than negative ones. We interpret these results to indicate that a focus on the problem of robbery by the police leads the police both to make more arrests and to record more offenses, thus producing the positive correlations we found.
Having Their Day in Court: Defendant Evaluations of the Fairness of their Treatment
Authors: Casper Jonathan D.
Published: June 2006

Defendants in criminal cases were asked to evaluate the fairness of the treatment they received. Several correlates of defendant evaluations are discussed, including “predisposing” variables (race, past record, and political alienation) and “case-specific” variables (sentence received, disposition by trial or plea, and a defendant's sense of how his sentence compares with those given to others). All are related to a sense of fair treatment, sentence received and comparison level most strongly. The implications of these findings for recent discussions of plea bargaining and greater sentence equity are discussed.
Lawyers and Neighborhood Legal Services: Social Background and the Impetus for Reform
Authors: Erlanger Howard S.
Published: June 2006

Many commentators have explained the shift in policy from the quietude of Legal Aid to the aggressive advocacy of Legal Services by pointing to a change in personnel. This paper presents data on the background of a national sample of Legal Services lawyers in 1967, and through a variety of analyses argues that, though Legal Services differed from Legal Aid, neither the organization as a whole, its reformist elements, nor its local administrators were dominated by a “new breed” of activist lawyer with elite credentials. Instead, Legal Services in both 1967 and 1972 was characterized by a remarkable heterogeneity of staff. Implications of these findings for the delivery of lawyers' services to the poor are discussed, and it is suggested that the “radical” character of the program is due more to the opportunities Legal Services has offered lawyers to pursue client interests than to background characteristics of personnel.
Lawyers for the Poor in Transition: Involvement, Reform, and the Turnover Problem in the Legal Services Program
Authors: Katz Jack
Published: June 2006

Lawyers in the federally funded Legal Services program for the poor have distinguished themselves from their predecessors in privately funded Legal Aid societies by discounting long-range career perspectives while expecting work to be involving. In the first part of this paper I analyze how the social status of poor people creates pressures toward routine treatment, and how reform litigation contributes to the Legal Services lawyer's involvement. In the second part I use this career analysis to understand the dilemmas currently confronting Legal Services leadership as it addresses problems of staff turnover. Recalling the social movement origins of the Legal Services program, I treat the turnover problem as a challenge to the institution to define its historical role. The dilemmas confronting institutional leadership in responding to turnover reflect tensions experienced by all reform organizations as the social movements initially supporting them deteriorate.
Institutionalizing Neighborhood Courts: Two Chilean Experiences
Authors: Spence Jack
Published: June 2006

The convergence of the forces of national competition among ideologically diverse political parties with the development of a squatter settlement movement brought the issue of neighborhood courts to national attention. In the face of Congressional stalemate over a national decentralization, two local experiments emerged, one employing professional judges holding regular informal hearings beyond their normal judicial duties for poor urban residents, the other involving left-organized squatter settlements' establishment of their own “extra-official” court systems using locally elected lay judges. The organizational and political contexts of the two, and their implicit ideological distinctions, led to somewhat different caseloads and distinct dispute processing styles. The professional court tended to routinize disputes, arbitrate, and rely on state police power; the lay court tended to mediate, focus upon sociological and political causes of disputes, and use formal and informal enforcement power. Each encountered severe constraints inhibiting development and institutionalization. These stemmed from lack of organizational resources and clear-cut goals, and the priorities of the organizational contexts in which they attempted to function. These priorities were, in turn, reflected in the class-based conflict encompassing Chilean politics during the Allende period.
Perspectives on Plea Bargaining
Authors: Feeley Malcolm M.
Published: June 2006

Plea bargaining is finally coming to be recognized for the important institution it is. There is a rapidly growing body of research that describes its variations, reports on its impact, and discusses its implications. Despite these advances, however, much of this literature is fragmented, anchored in separate disciplines, and often lacking in broad context and historical perspective. And although much of the empirical research on plea bargaining has a distinct reform orientation or offers important implications for reform, this is often implicit or presented in a way that is neither convincing nor useful to practitioners.
Understanding the Short History of Plea Bargaining
Authors: Langbein John H.
Published: June 2006

As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing.
Plea Bargaining: The Nineteenth Century Context
Authors: Haller Mark H.
Published: June 2006

Plea bargaining apparently arose independently in a number of urban criminal courts in the nineteenth century. These simultaneous developments were presumably related to a number of broad structural changes that characterized American criminal justice at the time. Chief among them were the creation of urban police departments for the arrest of criminals and the development of a prison system for punishment or rehabilitation. Other developments included the reduced role of the victim, the relative independence of criminal justice from legal norms, and the corruption and political manipulation of the criminal justice system. The paper explores ways that such developments may have provided the context for the institutionalization of plea bargaining as a method of case disposition.
Legality and Equality: Plea Bargaining in the Prosecution of White-Collar and Common Crimes
Authors: Katz Jack
Published: June 2006

On the basis of a case study of a U.S. Attorney's office, I sketch differences in the prosecution of white-collar and common crime in order to draw out implications for equality in current proposals to reform plea bargaining. The extent to which the powers of investigation and prosecution are empirically distinct differs with the two categories of crime. Because of greater social distance between prosecutor and investigator in the enforcement of laws against common crimes, formal records give a misleading impression that legitimate prosecutorial power is being bargained away. Because there is relatively little social distance between the prosecutorial and investigative functions in the prosecution of white-collar crime, the formal record greatly underrepresents the exercise of the power not to prosecute. Reforms that would make bargaining over formal dispositions more consistent with legality or “due” process appear likely to discourage lenience in the prosecution of common crimes while leaving largely unaffected the low visibility exercise of the power not to prosecute white-collar crime.
Trial Judges' Participation in Plea Bargaining: An Empirical Perspective
Authors: Ryan John Paul , Alfini James J.
Published: June 2006

The trial judge's role in plea bargaining is examined, using national survey data supplemented by observations and interviews. We analyze the frequency with which judges participate in plea discussions and the organizational, social, and legal contexts that affect the judicial role. Our data suggest the trial judge is often an important or crucial actor in the construction of plea agreements, a finding that contradicts much of the legal and social science literature. Several variables directly influence what role a judge will adopt, including self-perceived skill at negotiating and whether the state has a court rule or case law prohibiting or discouraging judicial participation. Future research should focus upon the impact of judicial participation in plea bargaining.
In Defense of “Bargain Justice”
Authors: Church Thomas W.
Published: June 2006

The strongest critics of plea bargaining argue that the practice should be abolished because it coerces defendants to give up their right to trial and because it results in irrational sentences for criminal defendants. Neither charge is applicable to a system of plea negotiations that meets four basic criteria: (1) the defendant always has the alternative of a jury trial at which both verdict and sentence are determined solely on the merits; (2) the defendant is represented throughout negotiations by competent counsel; (3) both defense and prosecution have equal access to relevant evidence; and (4) both possess sufficient resources to take a case to trial. The most fruitful direction of reform is to seek to achieve these conditions rather than attempt to eliminate plea bargaining.
The Effect of the Police on Crime
Authors: Wilson James Q. , Boland Barbara
Published: June 2006

The effect of police practices on the rate of robbery in 35 large American cities is estimated by a set of simultaneous equations. The measures of police resources (patrol units on the street) and police activity on the street (moving citations issued) are more precise than anything thus far available in studies of this kind and permit the use of identification restrictions that allow stronger inferences about the causal effect of arrests on crime rates than has heretofore been possible. Police resources and police activity independently affect the robbery rate after controlling for various socioeconomic factors. The political arrangements that lead to the use of aggressive patrol strategies are discussed and their effect estimated. The implications for, and limitations upon, policy are also discussed.
The Study of Law in Society in Britain
Authors: Campbell C.M. , Wiles Paul
Published: June 2006

In 1968 Renato Treves and J.F. Glastra van Loon edited Norms and Actions, a book of essays by indigenous scholars describing “law and society” research in their countries. No account of work in Britain was included, probably because there was so little activity in the field at that time. Yet only eight years later remarkable changes seem to have occurred. Courses at undergraduate and postgraduate level have proliferated; the number of empirical research projects is expanding; new centers and institutes have been established, series of books and a specialist journal have been launched, and financial and institutional support is provided by the universities, research councils, and through governmental initiatives. Not too long ago Lon Fuller (1967:1) suggested that the growth of interest in studying the operation of the law in American society had “come to assume the proportions of something like an intellectual movement.” Some commentators are tempted to perceive recent British developments in like fashion. But whatever the truth of Fuller's analysis of the American setting, it is dangerous to apply it to the situation in Britain. It would be reassuring to think that British academics simply discovered (rather later than elsewhere) a novel field of inquiry and boldly set out to explore it, and that the clamor of current activity indicates a vigorous beginning has been made. This would allow us to predict a healthy future and the rapid enhancement of our understanding of the nature and operation of law. It is just as plausible, however, to regard the current developments as fortuitous and perhaps transitional—the product of a curious concatenation of institutional, political and social influences.
The New Dutch and German Drug Laws: Social and Political Conditions for Criminalization and Decriminalization
Authors: Scheerer Sebastian
Published: June 2006

The “drug wave” of the late 1960s was widely perceived as a threat to the legitimacy of normative expectations in Dutch and German society. Although the overwhelming reaction of public opinion to drug users in both countries was hostile and punitive, the German legislature passed even more repressive laws whereas the Dutch legislature adapted the normative system to the use of both “soft” and “hard” drugs. Although in each instance the initiative for legal change came from the political and moral “progressives,” the conservative “moral center” retained a veto power. Why it used this veto power in Germany but actively supported the reform bill in Holland is explained in terms of the macrostructure of each society.
“He Takes Some of My Time; I Take Some of His”: An Analysis of Judicial Sentencing Patterns in Jury Cases
Authors: Uhlman Thomas M. , Walker N. Darlene
Published: June 2006

The jury has been widely credited with contributing to the best elements of the American judicial system. Utilizing computerized case histories of 29,000 felony defendants in an urban trial court, this article examines an important aspect of the jury process—judicial sentencing following jury trials. The data show that the sentencing cost of pursuing constitutionally guaranteed jury trial rights is high: jury defendants are punished with substantially greater harshness than are plea and bench convictees in essentially similar criminal cases. Regardless of sentencing philosophy, virtually every judge who sentenced jury, bench, and plea defendants sentenced jury defendants far more harshly and sent them to jail more frequently. Stiffer penalties for jury defendants appears to be the operational, though unstated, judicial policy, exercised out of the apparent administrative interest in reducing the number of lengthy jury trials.
Environmental Constraints on the Behavior of Judges: A Representational Model of Judicial Decision Making
Authors: Gibson James L.
Published: June 2006

In recent years there has been substantial concern over the issue of whether the judiciary is a representative institution. Most research on the matter suggests that judges are to some degree sensitive to public opinion, but confusion exists over the process through which the public affects the courts. This research is designed to reduce the level of confusion.

Taking advantage of the quasi-experimental research design afforded by the “circuit” system of court organization used by the Iowa trial courts, this research investigates the “sharing” model of representation. In order to insure against spurious results, controls are introduced for three types of influences on sentencing decisions: defendant and case attributes, judge attributes and role orientations, and local system practices. Analysis of a path model consisting of measures of sentencing behavior, seriousness of crime in the local jurisdiction, and perceptions of crime seriousness reveals that one-sixth of the variance in sentences can be explained. However, substantial variation across judges in responsiveness to local norms is also discovered.

Further investigation of these data was undertaken to determine the factors that account for variation in the strength of environmental linkages. The analysis suggests that judges with greater contact with their constituencies, who have experienced electoral defeat, and who assume a “delegate” role orientation, are far more influenced by environmental factors.

The article concludes with some observations on how the process of recruitment and early career patterns affect representation.
Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence
Authors: Cavanagh Ralph , Sarat Austin
Published: June 2006

This article reviews arguments about limitations on judicial competence or capacity, focusing on the need to go beyond such arguments to understand courts and their problems. Theoretical limitations on the competence and capacity of courts are compared with the record of judicial performance. The study examines performance in three areas in which courts are most likely to be thought ineffective: (1) cases involving unrepresented defendants, such as debtors or tenants; (2) disputes among persons with intimate or ongoing relationships; (3) extended impact cases. It is shown that courts adapt to changing circumstances and perform quite well, even with these difficult types of cases. Reforms are still needed, but rather than focusing narrowly on the courts, they should be directed at a wider range of social goals, such as strengthening family and community institutions which have been diminished by increasing urbanization and industrialization.
The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada
Authors: de Sousa Santos Boaventura
Published: June 2006

In a capitalist society the State legal system is in general an instrument of class domination both at the level of the relations of production, as in the factory, and of the relations of reproduction, as in housing. Housing conditions are particularly illustrative of class domination in the squatter settlements of all major cities throughout the capitalist world. Pasargada is the fictitious name of such a settlement in Rio de Janeiro. In a nonrevolutionary situation, and particularly under the yoke of economic and political repression imposed by the fascist State (as in contemporary Brazil), the struggle against housing and living conditions in these settlements is a very hard one. Because of the structural inaccessibility of the State legal system, and especially because of the illegal character of these communities, the dominated classes living in them devise adaptive strategies aimed at securing the minimal social ordering of community relations. One such strategy involves the creation of an internal legality, parallel to (and sometimes conflicting with) State legality—a kind of popular justice. The article describes Pasargada legality from both the inside (through the sociological analysis of legal rhetoric in dispute prevention and dispute settlement) and in its (unequal) relations with the Brazilian official legal system (from the perspective of legal pluralism).
Class Conflict and the Suppression of Tramps in Buffalo, 1892-1894
Authors: Harring Sidney L.
Published: June 2006

Class struggle shapes every aspect of the law. In Buffalo, New York, the railroad strikes of 1892 and 1894, coupled with a major depression, heightened the level of class conflict. Hundreds of thousands of American workers had “taken to the road,” both as a form of political protest and to look for work. When one of these “tramp armies” reached Buffalo, it was greeted by a show of working class solidarity among the Polish immigrant community, and by massive police repression under the control of the bourgeoisie. This paper analyzes the economic, political, and social context of those events.

Every workingman is a tramp in embryo. [Alarm, October 11,1884]

The policemen swung their long nightsticks right and left, left and right, and every time they hit a man he fell bleeding like a stuck pig, and whining and moaning like a kicked dog… . The horses were pulled up on their hind legs; they pawed the air with their front legs and mowed down the hoboes like grass, tearing their scalps open and bruising and wounding them. [Buffalo Evening News, August 25, 1894]
The Incapacitative Effect of Imprisonment: Some Estimates
Authors: Greenberg David F.
Published: June 2006

Recent research on the functions of imprisonment has begun to provide quantitative, empirical knowledge of its rehabilitative and deterrent effects. Much less is known, however, about the incapacitative effect of imprisonment. While it has long been understood that the physical segregation of prison inmates prevents them from engaging in some criminal activity (as well as much non-criminal activity) during the period of their confinement, quantitative estimates of the size of this effect have been lacking. Leaving aside all deterrent or rehabilitative and counter-rehabilitative effects, it is of some interest to know whether the incapacitative function of imprisonment is large or small.
Discretion, Exchange and Social Control: Bail Bondsmen in Criminal Courts
Authors: Dill Forrest
Published: June 2006

An impression widely held has it that American criminal courts are caught in a crisis. The manifestations of this presumably critical condition are well-known: ever-expanding workloads; indigent defendants held for weeks, months, and sometimes years of pre-trial confinement; officials and attorneys preoccupied with the mechanics of “plea bargains” instead of the intricacies of trials; protracted delays in settling some cases; disposition of other cases by means of arbitrary and prejudicial techniques; pervasive inequalities in sentencing decisions, and so on.

During the last five years, these symptoms have received attention from a number of respected journalists (James, 1971; Downie, 1972; Jackson, 1974). Criminal courts and their ailments have come under extensive study by several recent government commissions (President's Commission, 1967; Skolnick, 1969; National Advisory Commission, 1973). Social scientists have also shown increasing interest in these problems (Skolnick, 1967; Blumberg, 1970; Mileski, 1971; Levin, 1972; Mather, 1974).
Substantive and Reflexive Elements in Modern Law
Authors: Teubner Gunther
Published: June 2006

The most comprehensive efforts to develop a new evolutionary approach to law are found in the work of Nonet and Selznick in the United States and Habermas and Luhmann in Germany. While these theorists are concerned with a common problem—the crisis of formal rationality of law—they differ drastically in their accounts of the problem and their vision of the future. This paper tries to resolve these differences by first decomposing and then restructuring the diverse neo-evolutionary models. Using a more comprehensive model of socio-legal covariation, the author identifies an emerging kind of legal structure which he calls “reflexive law.” Reflexive law is characterized by a new kind of legal self-restraint. Instead of taking over regulatory responsibility for the outcome of social processes, reflexive law restricts itself to the installation, correction, and redefinition of democratic self-regulatory mechanisms. The author identifies areas of private law in which reflexive solutions are arguably emerging, and he spells out the consequences which a concern for reflexivity has for a renewed sociological jurisprudence.
The Question of Voluntariness in the Plea Bargaining Controversy: A Philosophical Clarification
Authors: Philips Michael
Published: June 2006

The practice of plea bargaining has been a subject of controversy in much recent literature. At least one legal philosopher, Kenneth Kipnis, has argued that this practice ought to be abolished on the ground that negotiated pleas are entered involuntarily. Wertheimer and Brunk have challenged Kipnis' claim that negotiated pleas are involuntary. I argue that each party to this controversy has failed to distinguish between two important questions: (1) are negotiated pleas involuntary in a sense that renders them legally invalid; and (2) are negotiated pleas involuntary in a sense that warrants the abolition of that practice as a matter of social policy? I believe that their failure to distinguish between these questions is partly responsible for the fact that their analyses of voluntariness are inappropriate to either of them. In showing how the analyses of these thinkers go wrong, I provide at least a partial account of the meaning of “involuntary” appropriate to the questions they conflate. Finally, I argue that the uses of “involuntary” in these questions, though established by practice, are nonetheless misleading, and I suggest alternative formulations of these questions that clarify the issues they present.
Reforming the Juvenile Justice System: The Diversion of Status Offenders
Authors: Rojek Dean G. , Erickson Maynard L.
Published: June 2006

Diversion has emerged as one of the most popular reform tactics in the juvenile justice system. An analysis of a two-year diversion program for status offenders revealed significant conceptual and operational ambiguity. The notion of a progression of a delinquent career from status to criminal offenses was not supported. The utilization of community-based programs in place of the juvenile court resulted in agency competition for clients and lengthy treatment programs for status offenders. Finally, the impact of specialized treatment for status offenders on behavioral and attitudinal measures was not significant. It was concluded that diversion programs developed exclusively for status offenders may be predicated on faulty assumptions.
The Evolution of Litigation in the Federal Courts of Appeals, 1895-1975
Authors: Baum Lawrence , Goldman Sheldon , Sarat Austin
Published: June 2006

This article examines the business of three United States Courts of Appeals over the course of their history. The courts selected for study were the northeastern Second Circuit, the deep south Fifth Circuit, and the west coast Ninth Circuit. A random sample of 50 cases was drawn for each circuit for every fifth fiscal year beginning with 1895 and ending with 1975. The sample years were aggregated into four time periods: 1895-1910, 1915-1930, 1935-1955, and 1960-1975. The business of the three circuits was found to have changed substantially from the 1895-1910 time period to the modern period. In the earlier years the circuits had small proportions of criminal cases—with the exception of the Second Circuit—a significant portion of real property cases, substantial proportions of business cases, and significant proportions of tort cases. By the 1960-1975 period a sizable proportion of the business of all three circuits was devoted to criminal and other public-law type cases; there were negligible proportions of real property cases, relatively small proportions of business cases, and even smaller proportions of tort cases. Public disputes replaced private disputes as the major source of the courts' business, and over time there has been a convergence among the circuits in the mix of cases coming to them.