bluuebunny/crossref_metadata_2025 huggingface dataset:
Redirecting Social Studies of Law
Authors: Abel Richard L.
Published: June 2006

The essays in this volume offer a wealth of suggestions for new directions in sociolegal research, not only about the particular subjects they themselves address but also, by analogy, about many others. Here I want to approach the task of theoretical reorientation in a different way. While these essays were in progress I had occasion to attempt a critical overview of recent American scholarship in order to identify the questions posed and assess their strengths and weaknesses. This was in no sense a systematic research effort but merely a reflection upon my experience as editor of this Review from 1976 to 1978, based upon the approximately 500 manuscripts submitted, the nearly 200 books sent for review, the proposals offered for this project, and the papers presented at the second national meeting of the Law and Society Association in Minneapolis in 1978. I would modify these views somewhat in light of work disseminated in other ways or produced during the subsequent two years, but I would not greatly alter them. I offer them here in the hope of stimulating debate on the level of metatheory, for I sense that our field is running so smoothly along familiar tracks that the questions and answers have begun to sound a comfortable, but rather boring, “clackety-clack.”
Law in the Development of Dynastic Families Among American Business Elites: The Domestication of Capital and the Capitalization of Family
Authors: Marcus George E.
Published: June 2006

American dynastic business families as descent groups constitute a category of social organization with which anthropologists have been traditionally familiar, but in the unlikely setting of a complex, bureaucratized society. This paper examines aspects of such groups and argues that law has been a critical organizational resource in their development. Law does not merely impinge at times on family concerns, but becomes an integral dimension of extended family relations in the arrangements for perpetuating collective wealth as business capital, and in distributing individual entitlements to that wealth among descendants. A general model of family/business formations is presented, supported by a comparative discussion of two dynastic families of Galveston, Texas.
Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure
Authors: Danet Brenda , Hoffman Kenneth B. , Kermish Nicole C.
Published: June 2006

This paper reports on an attempt by an interdisciplinary team to observe and record on tape lawyer-client interaction in the metropolitan Boston area in 1975-77. Current pressure for greater accountability to the public on the part of the legal profession makes the empirical, observational study of lawyer-client relations a timely, important topic. Despite the investment of much time and energy in creating conditions suitable for such a study, the project team failed to gain access to private lawyer-client encounters. The goal of the paper is to try to account for this failure, to analyze the nature of the obstacles encountered, and to stimulate speculation on how these obstacles might be overcome in the future. It is suggested that the doctrine of attorney-client privilege is the major obstacle which researchers must overcome. The idea of paying attorneys for their cooperation is also considered.
Rational Law and Boundary Maintenance: Legitimating the 1971 Lockheed Loan Guarantee
Authors: Turkel Gerald
Published: June 2006

Neo-Marxian critiques of Max Weber's theory of rationality have stressed the ideological role of legal formalism. At the analytic level, however, Weber's theory points to sources of potential conflict between legal formalism and economic rationality. This paper critically reconstructs Weber's perspective for analyzing the boundary maintaining categories of legal discourse. A case study of the 1971 federal loan guarantee to Lockheed Aircraft Corporation demonstrates that while both market ideologies and administrative principles partially bounded the debate over the legislation, this debate did not resolve the question of which businesses should potentially receive government support. This substantive issue raised problems of legal particularism that undermined the universal claims of legal rationality and required an expansion of boundary categories beyond legal formalism, yielding a more economically and politically open discourse.
Plea Bargaining and Plea Negotiation in England
Authors: Baldwin John , McConville Michael
Published: June 2006

In this paper, some recent findings about the nature of plea negotiation in the Birmingham Crown Court in England are discussed. These findings, to which the legal profession in England reacted with hostility, raise doubts about traditionally accepted assumptions concerning the role of plea bargaining in English criminal justice.
Race as a Determinant of Criminal Sentences: A Methodological Critique and a Case Study
Authors: Gibson James L.
Published: June 2006

In this article I argue that several conceptual and methodological deficiencies have plagued research on racial discrimination. Discrimination is usually conceptualized as a function of societal or institutional forces rather than as an attribute of individual decisionmakers, resulting in research designs that analyze decisions of courts, rather than those of individual judges. However, a finding of no discrimination in aggregate court data does not preclude the possibility that individual judges discriminate against or in favor of minorities. Thus the selection of the unit of analysis, and other methodological choices, can significantly affect substantive conclusions. Finally, research has largely been concerned with description, rather than explanation, and has therefore failed to illuminate the decisional processes that produce discrimination.

Each of these critiques is substantiated with data from the Fulton County (Georgia) Superior Court. My findings suggest three patterns of sentencing among judges: pro-black, anti-black, and nondiscriminatory. Anti-black judges are strongly tied to traditional southern culture, concerned about crime, prejudiced against blacks, and relatively punitive in their sentencing philosophies. In addition, they tend to rely more heavily on the defendant's attitude and prior record in making their sentencing decisions. Thus, discrimination seems to flow from both the attitudinal predispositions of the judges and the process they employ to make decisions.
Litigation and Moral Consciousness in Japan an Interpretive Analysis of Four Japanese Pollution Suits
Authors: Upham Frank K.
Published: June 2006

In the two years from June 20, 1971, to March 10, 1973, Japanese courts decided four pollution injury suits colloquially known in Japan as the “big four.” This litigation and the social and political movements that accompanied it are of great interest from several perspectives, including the doctrinal development of Japanese tort law. This article, however, will focus not on the legal or political impact of the litigation, but on the way in which cultural and social factors influenced its course. I attempt to illuminate thereby a side of the Japanese legal system that is ordinarily hidden from view, i.e., the interface of modern Japanese society and the formal legal system.
Three Functions of Bankruptcy Law: The West German Case
Authors: Gessner Volkmar , Rhode Barbara , Strate Gerhard , Ziegert Klaus A.
Published: June 2006

What are the causes of the inefficiency of bankruptcy proceedings and who has to suffer as a result? The authors conducted a nationwide study of insolvencies and the legal procedures to deal with them in the Federal Republic of Germany in 1976. A report on this study was presented in 1977. In the following article the authors use the results of the study as a springboard for some sociolegal reflections on the functioning of law in general and bankruptcy law in particular. They emphasize the three main functions of bankruptcy law in any capitalist society (distribution, conflict resolution, and prevention) and describe social organization of these functions in West German bankruptcy law. Bankruptcy, as revealing a situation of breakdown and crisis, poses problems that are not only practical but also theoretical, problems that can stimulate sociolegal reasoning and help us to understand the social foundations of law.
Rationality, Legal Change, and Community in Connecticut, 1690-1760
Authors: Mann Bruce H.
Published: June 2006

The paper examines certain legal changes in eighteenth-century Connecticut, primarily in the area of debt litigation, and links them with economic development and with changes in the nature and meaning of community. The legal changes proceeded in the direction of greater rationality as expanding economic activity disrupted the multiplex ties that had once characterized communities and paired people instead in single-interest relationships. Max Weber's concept of rationality provides a theoretical base for the historical study of legal change.
The Impact of Victim Assessment on Prosecutors' Screening Decisions: The Case of the New York County District Attorney's Office
Authors: Stanko Elizabeth Anne
Published: June 2006

This paper examines the discretionary judgments of the prosecutor during the screening of felony arrests. In particular, I emphasize the significance of the victim on the prosecutor's definition of serious crime and criminal activity. Descriptive accounts of felony screening illustrate how prosecutors rely on stereotyped characteristics to assess victim credibility.
Exploring Relations Among Forms of Social Control: The Lynching and Execution of Blacks in North Carolina, 1889–1918
Authors: Phillips Charles David
Published: June 2006

Official and unofficial forms of social control are usually considered substitutable responses to individual acts of deviance. This analysis of the lynching and execution of blacks in North Carolina indicates that these two forms of social control, one official and the other unofficial, served not simply as substitutes, but also as complements during much of the latter part of the nineteenth century. Only after the disenfranchisement of the black population did the relationship between official and unofficial killing begin to imply substitution. This relationship, and its transformation following disenfranchisement, are more easily understood from a social conflict perspective than from an approach that emphasizes social control as a response to individual deviance. These results imply that future inquiries into relations among forms of social control might profit from an increased sensitivity to the dynamics of macrosocial conflict.
Critical Traditions in Law and Society Research
Authors: Silbey Susan S. , Sarat Austin
Published: June 2006

This paper examines the place of critical inquiry within law and society studies. It suggests that such inquiry requires a periodic reexamination of both methodological and theoretical assumptions. In terms of method, critical inquiry would emphasize the particular and intensive as opposed to the general and extensive. In terms of theory, it calls attention to the limits of state legality and invites attention to ordinary social transactions in which the law appears invisible but is nonetheless powerful. The authors argue that it is possible to be both critical and empirical.
The Catalytic Effect of a Federal Court Decision on a State Legislature
Authors: Moss Kathryn
Published: June 2006

This paper examines the way in which a United States district court decision in Texas catalyzed state legislation in that state. The events leading from the decision to the enactment of the statute are chronicled. The paper also describes the processes of bargaining and cooperation among the major actors who used the decree to obtain the new legislation. In the conclusion, factors that facilitated the catalytic impact of the judicial decision are discussed.
State Intervention and the Civil Offense
Authors: Freiberg Arie , O'Malley Pat
Published: June 2006

The growth of state interventionism, especially in the post-war era, has been associated with the proliferation of legal innovations. This paper examines the development of novel hybridizations of civil and criminal forms, developed largely to facilitate state regulation. Such hybrids, referred to here as civil offenses, combine civil proceedings, often referred to as prosecutions, with notions of convictions for which penalties are imposed. The advantages accruing to the state from such “ambiguous” forms include favorable standards of proof, rules of interpretation, extending responsibility, retroactivity, suspension of mens rea, and a wide array of novel sanctions.
Voting Cues in Nonpartisan Trial Court Elections: A Multivariate Assessment
Authors: Dubois Philip L.
Published: June 2006

Despite a number of valuable scholarly contributions made in recent years, we still lack a precise understanding of the determinants of voter choice in low salience nonpartisan judicial elections. Utilizing a multivariate technique that controls for the varying numbers of candidates frequently found in judicial elections, this analysis examines the contributions of incumbency, occupational ballot labels, campaign spending, newspaper and bar association endorsements, voter information pamphlets, and the ethnic and sexual voting cues provided by candidate surnames to the outcomes of the 123 contested primary and run-off elections held for California's major trial court from 1976 to 1980.

The results suggest that the determinants of voter choice are quite different in the relatively well-publicized run-off elections than they are in the low visibility primary races. Additionally, judicial voters in the less populated California counties were found to rely upon different guides to voting than voters in California's metropolitan counties. The reasons for and implications of these differences are explored.
Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches
Authors: Canan Penelope , Pring George W.
Published: June 2006

The Petition Clause of the First Amendment protects any peaceful, legal attempt to promote or discourage governmental action at all governmental levels and all governmental branches. This paper describes our examination of SLAPP (strategic lawsuits against public participation) cases where citizens who contact the government are sued by the interests they oppose. We present the findings of a legal document analysis and summarize ongoing research to understand the social dynamic processes and extralegal outcomes of SLAPPs. The purposeful blend of qualitative and quantitative methods is highlighted as an appropriate approach for answering micro- and macrosociological questions involved in these cross-institutional disputes.
The Impact of Recent Changes in California Drinking-Driving Laws on Fatal Accident Levels During the First Postintervention Year: An Interrupted Time Series Analysis
Authors: Hilton Michael E.
Published: June 2006

In 1982, a set of strict new countermeasures against drinking-driving went into effect in California. Interrupted time series analysis is used to investigate the effect that these countermeasures have had on fatal accident levels during the first postintervention year. The results do not indicate that a deterrent impact occurred among those accidents. Supplementary analyses of injury accidents during the first postintervention year and of fatality accidents during the first nine months of 1983 add important qualifications to this basic finding.
Legal Insurance, Litigant Decisions, and the Rising Caseloads of Courts: A West German Study
Authors: Blankenburg Erhard
Published: June 2006

German prepaid legal insurance is growing both in terms of number of households insured and in terms of extending coverage to new legal areas. Fears for a litigation explosion, however, can be shown to be unfounded—just as are hopes that legal insurance would remove social inequalities of access to law. The use of legal insurance turns out to be much more limited than could have been expected. Major effects on financing lawsuits occurred only in defense against traffic fines and regulating traffic accidents. Litigation behavior as measured by indicators of litigiousness (such as risking a lawsuit with poor chance for success, resisting settlement, filing an appeal) does not seem to be affected by removing cost considerations. It appears that social costs determine inclination to litigate to a greater degree than do financial costs.
Evaluating Criminal Justice Reforms
Authors: Casper Jonathan D. , Brereton David
Published: June 2006

Research on the implementation of criminal justice reforms, such as sentence guidelines, determinate sentence laws, and no plea bargaining policies, has proliferated in recent years. This research raises a variety of concerns about how one should evaluate the effectiveness of policy innovations. We deal here with recurring issues in the evaluation of criminal justice innovations, including the problem of specifying goals against which to measure “effectiveness,” the need to interpret research findings in light of theories about how criminal courts operate, and the importance of choosing appropriate time periods in which to conduct implementation or evaluation studies.
Structure and Practice of Familial-Based Justice in a Criminal Court
Authors: Daly Kathleen
Published: June 2006

Many explanations have been proposed for gender differences in criminal court outcomes, but none has been grounded in a systematic study of the reasoning processes used by court officials in sanctioning male and female defendants. Interviews with thirty-five court officials (prosecutors, defense attorneys, probation officers, and judges) are presented here to assess extant theory and to offer a reconceptualization of why gender differences may emerge in the course of “doing justice.” The interviews reveal that the sanctioning process is structured by familial paternalism, that is, a concern to protect family life, men's and women's labor for families, and those dependent on defendants. Familial paternalism more accurately explains family- and gender-based disparities in sentencing than existing social control arguments, and it is distinguished from female paternalism, which is based on the view that women, as the “weaker sex,” are subject to greater court protection than men before the criminal court.
Criminal Prosecution of the Mentally Disordered
Authors: Hochstedler Ellen
Published: June 2006

This study examines the interim and final dispositions of 379 criminal cases involving mentally disordered defendants. The findings indicate that a history of mental health problems tends to elicit a lenient penal sanction, even in the face of a criminal history. Furthermore, these findings show that the court used its authority to impose mental health treatment on criminal defendants as often as it imposed punishment.
Simultaneous Scaling of Offense Seriousness and Sentence Severity Through Canonical Correlation Analysis
Authors: McDavid James C. , Stipak Brian
Published: June 2006

This article describes and illustrates a new, easily applied method of scaling the severity of different types of criminal sentences and the seriousness of different types of crimes. In contrast to past approaches, this method is based on actual judicial performance, not on opinions or subjective scaling procedures. Using this approach, the effects on sentencing of variables other than type of crime can be examined.
Deterrent Effects of the Police on Crime: A Replication and Theoretical Extension
Authors: Sampson Robert J. , Cohen Jacqueline
Published: June 2006

This study replicates and then extends Wilson and Boland's (1978) theory of the deterrent effect of policing on crime rates in American cities by linking it to recent thinking on control of urban disorder and incivilities (Sherman, 1986; Skogan and Maxfield, 1981). The theory posits that police departments with a legalistic style tend to generate policies of proactive patrol (e.g., high traffic citation rate and frequent stops of suspicious or disorderly persons), which in turn may decrease crime rates either (1) indirectly, by increasing the probability of arrest, or (2) directly, by decreasing the crime rate through a deterrent effect regarding perceived threat of social control. We test both these propositions in an examination of robbery rates in 171 American cities in 1980. Overall, the major results suggest that proactive policing has direct inverse effects on aggregate robbery rates, independent of known determinants of crime (e.g., poverty, inequality, region, and family disruption). Moreover, when we demographically disaggregate the robbery rate the direct inverse effect of aggressive policing on robbery is largest for adult offenders and black offenders. We examine the reasons for these findings and discuss their theoretical and policy implications.
The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800)
Authors: Moran Richard
Published: June 2006

The pivotal case in the history of the plea of insanity occurred in London during the reign of George III. In the year 1800, James Hadfield discharged a horse pistol at the king as he entered the royal box at Drury Lane Theatre. Hadfield pleaded insanity to a charge of high treason and was acquitted. The verdict caused much judicial concern, for the law's power over him was at best unclear. Hadfield was taken to Newgate Prison while Parliament hastily passed the Criminal Lunatics Act of 1800, which enabled the government to detain Hadfield for the rest of his life. No longer was a defendant found not guilty on the grounds of insanity entitled to a general acquittal. Insanity became a special verdict linked with automatic confinement for an indefinite period of time. Three other provisions of the act called for the detention of mentally ill persons who were arrested for criminal offenses or found in circumstances that suggested criminal activity.
The Relative Significance of Disputing Forum and Dispute Characteristics for Outcome and Compliance
Authors: McEwen Craig A. , Maiman Richard J.
Published: June 2006

In a recent study of small claims mediation and adjudication in an Ontario court, Vidmar introduced the concept of “admitted liability” (1984). He argued that it is this case characteristic and not the forum type that accounts for the greater likelihood of accommodative settlements in mediation than in adjudication, as well as the higher rates of compliance with mediated outcomes. This article reanalyzes some of Vidmar's data in conjunction with both previously reported and new data about small claims cases in Maine. We conclude that the forum type remains a stronger predictor of case outcome and compliance than any case characteristic. However, the data do support Vidmar's alternative hypothesis that case characteristics help specify the relationships between forum type, on the one hand, and outcome and levels of compliance on the other.
The Legal/Extra-Legal Controversy: Judicial Decisions in Pretrial Release
Authors: Nagel Ilene H.
Published: June 2006

This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute—extra-legal factors—are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.
Compensation and the Social Structure of Misfortune
Authors: Black Donald
Published: June 2006

This essay identifies social conditions associated with the compensatory style of conflict management, addresses variable aspects of compensation itself, and examines the modern trend toward a greater degree of compensatory liability of organizations for the misfortunes of individuals. Several propositions are discussed: Compensation is a direct function of groups and a curvilinear function of relational distance, and is greater in upward and group-directed cases than in downward and individual-directed cases. In addition, liability varies directly with social distance and is greater in group-directed than in individual-directed cases. The modern trend toward greater organizational liability appears to be a devolution toward a pattern of collective dependency characteristic of earlier societies before the decline of kinship.
Civil Courts and the Development of Commercial Relations: The Case of North Sumatra
Authors: Burns J. Joseph
Published: June 2006

This study of the relationship between businessmen and the civil courts in the Indonesian province of North Sumatra finds that Sumatran businessmen seldom use the courts either to collect retail debts or to settle commercial disputes among themselves. In fact, they were found to litigate disputes only when they hoped to salvage something from a failing business relationship, or when simply opening litigation could by itself help discharge a bureaucratic responsibility, satisfy a personal grudge, or harass a defendant into making an out-of-court settlement. The unusual cost structure of the civil courts, relatively low formal costs and relatively high informal costs, contributed to an unfavorable image of the courts as expensive, arbitrary, and inefficient dispute settlement mechanisms in the eyes of one important group of businessmen, the rubber exporters. Other characteristics of the exporters, their trading partners, and the social and economic relationships among them were found, however, to present more basic obstacles to the use of the courts in settling commercial disputes. These results then suggest some general conditions under which the capacity of a legal system to influence the development of commercial relations is severely limited.
In the Eye of the Beholder: Tort Litigants' Evaluations of their Experiences in the Civil Justice System
Authors: Allan Lind E. , Maccoun Robert J. , Ebener Patricia A. , Felstiner William L. F. , Hensler Deborah R. , Resnik Judith , Tyler Tom R.
Published: June 2006

Little is known about the reactions of tort litigants to traditional and alternative litigation procedures. To explore this issue, we interviewed litigants in personal injury cases in three state courts whose cases had been resolved by trial, court-annexed arbitration, judicial settlement conferences, or bilateral settlement. The litigants viewed the trial and arbitration procedures as fairer than bilateral settlement, apparently because they believed that trials and arbitration hearings gave their case more respectful treatment. They were less satisfied with the outcome of judicial settlement conferences than with the outcome of bilateral settlements, because judicial settlement conference outcomes were more likely to fall below their expectations. In general, procedural justice judgments and outcome satisfaction were little related to objective outcome, cost, or delay; instead the evaluations appeared to be determined largely by perceptions of whether the procedure met litigants' criteria for procedural fairness and expectations on outcomes and costs. Gender, income, and race did not have much effect on evaluations.
Detention Decisions in Juvenile Cases: JINs, JDs, and Gender
Authors: Schutt Russell K. , Dannefer Dale
Published: June 2006

Preadjudicatory detention is used for about one-third of all juvenile offenders (Poulin et al., 1980). A protectionist purpose is often held to justify both the need for discretionary decision making in these cases and the absence of due process protections. In this study, we have included measures of juvenile offenders' socioemotional status with indicators of their legal status and social background in a log-linear analysis of detention decisions in New Jersey. The results suggest that protectionism is a major influence on these decisions and is in turn related to the impact of gender.
Pain, Suffering, and Jury Awards: A Study of the Cost of Crime to Victims
Authors: Cohen Mark A.
Published: June 2006

Previous studies of the cost of crime have focused on the out-of-pocket expenses incurred by victims. This approach significantly underestimates the cost of crime to victims by ignoring the pain, suffering, and fear caused by crime. Other studies have attempted to infer the cost of crime by estimating property value differences in high versus low crime areas. However, this approach does not permit one to determine the cost of individual crimes. The purpose of this paper is to estimate the cost of individual crimes by examining the pain, suffering, and fear endured by crime victims. Actual victim injury rates are combined with jury awards in personal injury accident cases to estimate monetary values for pain, suffering, and fear. I combine crime-related death rates with estimates of the value of life to arrive at monetary values for the risk of death. My estimate of the aggregate annual cost of crime to victims of FBI index crimes is $92.6 billion. These estimates are shown to have several direct policy applications.
The Professional Project of Parajudges: The Case of U.S. Magistrates
Authors: Seron Carroll
Published: June 2006

The Magistrate Act of 1968 (Pub. L. 90-578, tit. I, § 101, 82 Stat. 1113) introduced a new tier of judicial officers into the federal district courts. As a result of this act and two amendments (Pub. L. 94-577, § 1, 90 Stat. 2729 (1976); Pub. L. 96-82, § 2, 93 Stat. 643 (1979)), magistrates may now work on a wide variety of civil and criminal pretrial tasks at the discretion of Article III judges; indeed, with the consent of both parties, magistrates may hold jury trials in civil cases. In addition, the act and the amendments encourage courts to delegate “additional duties” to magistrates with a view toward developing innovative work relations between two tiers of judicial officers.

Since both groups are lawyers, magistrates and Article III judges share the same formal training and professional expertise. Organizationally, however, magistrates work for federal judges. There is the potential, therefore, for a wide variety of work relations between these two tiers of judicial officers. The history of magistrates' “professional project” (Larson, 1977) to expand their formal duties, their autonomy and control over decision making, and their organizational status provides a useful entry point for analyzing recent developments in judicial work relations, the subject of this article.

I will first report the results of a study of U.S. magistrates. These findings suggest a typology of three distinct patterns of response to these new judicial officers: additional judge, bureaucrat, and team player. I next consider why courts opt for the occupational models they do. Finally, I speculate about the implications of the variations for understanding contemporary developments in judging and judicial process.
Comment on Schlegel
Authors: Kalman Laura
Published: June 2006

Schlegel is right. It is difficult to swallow the notion that twentieth century history began twenty years late. I agree that the central issue for legal historians is the growth of the nation state's apparatus. We should indeed be concerned with the regulation and direction of an economy. Yet my own preferred date for the beginning of twentieth century legal history is 1901. More precisely, I would pinpoint 2:15 A.M. on September 14, 1901, the morning Theodore Roosevelt became President (Pringle, 1956: 163).
Comment on Schlegel
Authors: Johnson John W.
Published: June 2006

I recall vividly taking part in a session just over a decade ago at a meeting of the American Society for Legal History titled “New Directions in Legal Research.” Two young legal historians presented a paper in which they took to task some of the luminaries in the field for not writing “truly social histories” of the law. (I will not mention the names of the young historians who presented the critical paper; but those readers interested in knowing names can employ the traditional research skills for which we historians are noted). The two iconoclasts attacked Lawrence Friedman's A History of American Law (1973), William Nelson's The Americanization of the Common Law (1975), a series of Morton Horwitz's articles that became the basis for The Transformation of American Law, 1780–1860 (1971, 1972–73, 1974, 1977) and even Willard Hurst's impressive body of work (1950, 1956, 1960). Although the session was held late on a Saturday afternoon, the discussion following the paper was spirited. It struck me, however, that all of the examples of influential but ersatz legal history presented were on eighteenth and nineteenth century subjects. So I was moved to ask: “What about twentieth century American legal history?” The quick and clever answer from one of the paper readers was: “We don't care about twentieth century legal history, that's just the history of ideas with a little constitutional law thrown in.” This drew laughter from the audience, and the discussion quickly went back to Horwitz, the fellow servant rule, nineteenth century instrumentalism, and other pre-1900 matters. I should add that the glib young historian soon after this meeting left the writing of legal history behind, attended law school and, I am told, is now a comfortable partner in a major West Coast law firm. Perhaps there is a lesson in this, but it was lost on me.
Trials and Tribulations: Crises, Litigation, and Legal Change
Authors: Stookey John A.
Published: June 2006

Using a data base of 28,000 trial cases decided in four Arizona trial courts between 1912 and 1951, this article examines the relationships between crises, litigation, and policy change. After comparing and contrasting consensus and conflict perspectives on trial court litigation, an interrupted time series design is used to test three propositions derived from the conflict perspective. These propositions concern the impact of crises, namely, world wars and depressions, on different types of litigation; the victory patterns of different types of disputants; the ability of losing litigants to obtain policy relief; and the impact of policy change on varying disputants and litigants. The results suggest the utility of further attempts to explore litigation from an economic and political conflict perspective.
Redefining the Power of the Federal Judiciary: The Impact of Court-Ordered Prison Reform on State Expenditures for Corrections
Authors: Taggart William A.
Published: June 2006

In the last two decades, federal judges in virtually all states have ordered state governments to alter dramatically the way they operate such institutions as prisons, hospitals, and mental health facilities. The research presented here seeks to improve our understanding of the budgetary linkage between the federal judiciary and state governments by examining the influence of court-ordered prison reform on state expenditures for corrections. Generally, the results indicate that the judiciary has had a limited but positive impact on capital outlays in one-half of the states examined. The influence on state operating expenditures for corrections has been even less noticeable. The analysis suggests that the judiciary's ability to exercise “the power of the purse” is tempered by the dynamics of state-level budgetary processes and the willingness of courts to adopt a comprehensive view of prison reform.

The judiciary & has no influence over either the sword or the purse.

—Alexander Hamilton

A state is not at liberty to afford its citizens only those constitutional rights which fit comfortably within its budget.

—U.S. District Judge

Frank M. Johnson, Jr.
A Different Agenda: The Supreme Court, Empirical Research Evidence, and Capital Punishment Decisions, 1986–1989
Authors: Acker James R.
Published: June 2006

This article examines the Supreme Court's use of social science research evidence in 28 capital punishment cases decided between 1986 and 1989. The study describes the frequency and major correlates of the justices' citation of social science authorities in the 1986–89 sequence of cases. Social science evidence figured significantly in several death penalty cases, although a majority of the justices were more eager to discredit and discount research conclusions than to use them as premises for their decisions, and prevailing case opinions generally promoted principles that had little to do with empirical evidence concerning the administration of capital punishment. Social science citation patterns in majority and dissenting opinions, and in the opinions of “liberal” and “conservative” Supreme Court justices, in significant respects parallel the Court's shifting doctrinal premises in capital punishment decisions.
Assessing Capriciousness in Capital Cases
Authors: Paternoster Raymond
Published: June 2006

In their article in this symposium Berk, Weiss, and Boger (1993) have presented a unique approach in the examination of the issue of capriciousness in capital charging decisions. They define capriciousness as one of two forms of arbitrariness. One form of arbitrariness, discrimination, concerns the use of inappropriate factors such as the defendant's social class or victim's race. In the second form of arbitrariness, capriciousness, it is not the use of inappropriate factors that is problematic; rather it is the inability to identify the factors that “meaningfully” differentiate the few defendants given a capital charge from the many who could have been charged with a capital crime but were not. Berk and his colleagues only concern themselves with capriciousness.
Courtship Violence and Social Control: Does Gender Matter?
Authors: Miller Susan L. , Simpson Sally S.
Published: June 2006

In this exploratory study, we ask whether perceptions of and responses to violence in dating relationships are gendered and whether the factors that affect male perceptions also influence females. Using the social control and feminist literatures as a guide, we explore gender differences in perception of sanction risk and attitudes toward resolution of violence when it occurs. Our data reveal several differences in male and female perceptions of formal and informal sanctions (attachment to significant others and stigmatic costs)—although not always in the expected direction—and show that different factors influence male and female perceptions of sanction likelihood and costs. We also find that females are more likely than males to seek relationship termination, informal controls, or formal justice outcomes if assaulted by their partner. However, the conditions that stimulate victims to consider these decisions vary by gender. These findings are discussed, along with implications for further research.
The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women, 1950–1970
Authors: Starr June
Published: June 2006

The suppression of Islamic family law and the introduction of secular family law to govern family life in Turkey created a legal and regulatory environment that supported more egalitarian relationships within the rural household. Despite the lack of an organized political movement, by 1950 rural Muslim women had begun to use the courts in divorce and other conflicts, suggesting that Ataturk's reforms had diffused to the Anatolian provinces by this time. Female-initiated cases, in conjunction with other behavior such as reducing family size and pushing husbands to leave the extended patriarchal households of their fathers, indicate that rural Islamic women were striving toward more autonomy in their lives. This picture offers a sharp contrast to the image of the passive, submissive rural Islamic woman described in much of the social science literature on Turkey. It suggests instead that rural women were active participants in changing their life situations.
Selective Facilitation: Some Preliminary Observations on a Strategy used by Divorce Mediators
Authors: Greatbatch David , Dingwall Robert
Published: June 2006

Serious criticisms have been raised about divorce mediators' claim that they act as purely neutral facilitators of party-driven agreements. This paper reports on a study, based on tape recordings of mediation in the United Kingdom, intended to describe the strategies used by mediators and clients in the attempt to resolve disputes. It identifies a technique, labeled “selective facilitation,” through which clients may be steered in particular directions chosen by the mediator. This poses important questions for future evaluation studies and for the regulation of mediation practice.
Another Look at No-Fault Divorce and the Post-Divorce Finances of Women
Authors: Jacob Herbert
Published: June 2006

Recent studies by Weitzman (1985) and Peters (1986) suggest that no-fault divorce has harmed women. The research presented here tests these findings by examining the effects of no-fault divorce on the financial situation of women using data on salary and wage income, home ownership, and child support from the National Longitudinal Surveys (NLS) of Labor Market Experience (Ohio State University Center for Human Resource Research [OSU], 1986) young women's cohort. The analyses do not support the hypothesis that no-fault divorce produces adverse financial effects. Rather, it appears that no-fault has had little effect on women's finances. Alternative models that might explain how divorce law affects the financial condition of women are suggested.
Testing an Expected Utility Model of Corporate Deterrence
Authors: Braithwaite John , Makkai Toni
Published: June 2006

This article reports on the first quantitative perceptual deterrence study of corporate (rather than individual) deterrence. The study is based on interviews with 410 chief executives of small organizations and their officially recorded compliance with regulatory standards. We find partial support for the certainty of detection as a predictor of both self-reported and officially recorded compliance but no support for the certainty or severity of sanctioning. The narrow range of sanctions available in the particular regulatory domain studied (regulation of nursing home quality) has enabled a fuller specification than was possible in previous studies of an expected utility model for all available sanctions. Managers' expected corporate disutility from all sanctions fails to explain compliance. Deterrence does not work significantly more effectively for chief executives (a) of for-profit versus nonprofit organizations, (b) who are owners compared with those who are not owners, (c) who say they think about sanctions more (sanction salience), (d) who may better fit the rational choice model in that they are low on emotionality, (e) who have a weaker belief in the law. Nor is deterrence more effective when compliance costs are low.
Finding and Losing One's Self in the Topoi: Placing and Displacing the Postmodern Subject in Law
Authors: Coombe Rosemary J.
Published: June 2006

The metaphors Santos (1995) affords us for orienting a postmodern subject no doubt emerge from a substantial body of empirical research and theoretical deliberation. Having only been provided with a very brief summary of his remarks upon which to base my own, I risk an insistence upon sociohistorical contextualization that may well be more appropriately attended to in Santos's aggregated agenda. So be it. My point, in any case, is simply to suggest that rather than privilege any formulation of the subject, postmodern or otherwise, in a progressive reimagining of the law, we put the subject at risk by continuously interrogating its privileges. I might begin by disputing Santos's claim that “we” are in a period of “paradigmatic transition” by virtue of having to acknowledge other knowledges and “rival epistemologies” by asking for whom the exhaustion of modernity's certainties is a “deep and irresolvable crisis.” Similarly, one could argue that, far from being exhausted, modernity's categories continue to provide many of the conceptual resources for a truly profound expansion of democratic politics—one that is only now realizing its potential by virtue of the failure of Enlightenment universal-isms and the proliferation of identities, epistemologies, and new social movements (Botwinick 1993; Laclau 1993, 1994; Lefort 1988; McClure 1992; Mouffe 1992a, 1993, 1995). Such politics, of course, are very likely to be enacted in struggles to expand the inclusiveness of common law and legislative categories—in courts, legislatures, and administrative tribunals, at local, national, and international levels. I will briefly return to the potential politics of postmodernity in my conclusion, for it is there, perhaps, that we might find more promising resources for a new conception of law.
New Strategies for Getting Clients: Urban and Suburban Lawyers' Views
Authors: Seron Carroll
Published: June 2006

A survey of a random sample of attorneys in the New York Regional Metropolitan Area reveals that they have a lukewarm attitude toward newer, more businesslike client-getting strategies—advertising, prepaid legal plans, nonprofit plans, and closed legal plans; respondents also strongly agree that these techniques have a negative impact on the public's image of the profession. Do structural factors of the profession explain attitudes toward professional practices? To find out, I examined the effect of three dimensions of the profession: organization of work, geographical location of organization, and demographic factors. The findings show both persistent intraprofessional tensions around the impact of these new practices on the image of the profession and tension between older and younger attorneys over advertising and development of legal plans. Also these analyses document a structural dimension of the legal profession not identified in earlier research: suburban practitioners are much more skeptical about the newer client-getting practices than are their urban colleagues.
Suspended in Space: Bedouins under the Law of Israel
Authors: Shamir Ronen
Published: June 2006

This article demonstrates the legal consequences that flow from the conceptualization of the Bedouin as rootless nomads and from the imposition of certain legal categories of land ownership as means for solving disputes across the indigenous/nonindigenous divide. I argue that the law works by imposing conceptual grids on time and space and that this conceptual ordering, in turn, gives rise to a series of binary oppositions that affirm the distinctions between “us” (Progressive Westerners) and “them” (Chaotic Oriental nomads). Once the Bedouin are placed on the side of nature, judicial practices tend, on the one hand, to objectify the denial of Bedouin claims of land ownership and, on the other hand, to facilitate state policies of forcing the Bedouin into urban setdements.
Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking
Authors: Emmelman Debra S.
Published: June 2006

Through presentation of ethnographic research findings on court-appointed defense attorneys, this article examines plea bargaining as a component of a recursive process for deciding whether a case should be settled immediately or proceed further. The decisionmaking process has three types of activities: assessing the offer for a guilty plea, negotiating the terms of a plea bargain, and counseling the defendant and deciding on a course of action. Until a criminal case is actually settled either through a final plea agreement or a jury trial, this decisionmaking process occurs over and over again. Viewed as a component of this recursive process, plea bargaining encompasses multiple episodes of negotiating behavior as well as a wide range of formal litigation proceedings. Perhaps more important, plea bargaining and trial procedures can actually be seen to converge. I conclude that this mode of plea bargaining is not merely an effective method for representing defendants but perhaps equally or more effective than trial. Some important limitations of the findings are also discussed.