bluuebunny/crossref_metadata_2025 huggingface dataset:
The Role of Police in Japanese Society
Authors: Araki Nobuyoshi
Published: June 2006

Although it is beyond doubt that participation observation is one of the best methods by which to gather precise information about the role of police in Japanese society, Japanese scholars have rarely undertaken this kind of research. The sole exception has been juvenile delinquency, but even in this area Japanese scholars have failed to explore juvenile crime. Japanese police refused either to be observed or criticized by Japanese scholars, even to the point of opening the interrogation rooms, or Ryuchijyo, in police stations. Believing that the low crime rate in Japan reflected their success, police officials concluded that they had little to learn.
The Works of Takeyoshi Kawashima
Authors: Matsumura Yoshiyuki
Published: June 2006

Since the 1940s Takeyoshi Kawashima has been Japan's most distinguished legal sociologist. It is hardly an exaggeration to say that commenting on Kawashima's contributions to the sociology of law is almost equivalent to commenting on the sociology of law in Japan itself (1982–1986). International readers have not fully appreciated his work for two reasons. First, few of his writings are in English and those pieces that are translated do not encompass his major contributions. Second, there are relatively few works published in English on the sociology of law in Japan. Those studies that have appeared stress the uniqueness of Japanese legal culture. As a result, international readers have come to consider Kawashima's scholarship (while brilliant) irrelevant to theory building in the sociology of law.
Coming of Age in America: Work, Abortion, and the Family
Authors: Hackler Jim
Published: June 2006

In their book entitled, When Teenagers Work, Greenberger and Steinberg argue that to be meaningful, jobs for adolescents need to impart skills or knowledge valuable for adult life, contribute to the financial need of the family, and create interaction with adults who have a stake in preparing them for adulthood. These elements tend to be missing in the current adolescent workplace. As a consequence, this book questions the popular view that teenage involvement in the world of work is positive.
Uncovering the Secrets of the Common Law
Authors: Saks Michael J.
Published: June 2006

“Legal secrets” are secrets that the law of torts or contracts either require to be—or protect from being—divulged. The secrets themselves are without limit: a professor's past as a former priest, things learned while in a previous job, that a house has running water only twelve hours each day, that land was worth more than its owner realized, that a patient told his psychotherapist that he planned to kill his girlfriend, that the Treaty of Ghent was signed ending the War of 1812, and on and on. The legal flags under which these battles for the control of secret information are fought reduce to the law of fraud, privacy, trade secrets, and implied warranties. And the underlying economic or other principles that are proposed to explain the decisions in these areas of law are even fewer.
Docket Data and “Local Knowledge”: Studying the Court and Society Link Over Time
Authors: Lempert Richard
Published: June 2006

This article uses a study of a public housing eviction board over a thirty-year period to illustrate the ambiguities and difficulties that attend longitudinal court docket research. It argues that these problems can never be eliminated but that they may be minimized by strategies that complement quantitative court docket data with qualitative contextual information. Several such strategies are mentioned.
Litigation Across Space and Time: Courts, Conflict, and Social Change
Authors: Engel David M.
Published: June 2006

One of the problems facing researchers who have studied courts across time and space has been the cultural variability of seemingly uniform analytic categories, including conceptions of time and space themselves. This article proposes that we take such variations in meaning as a starting point for comparative studies of courts and social change rather than viewing them as were “noise” in the system. Litigation in Chiangmai, Thailand, is presented as an example. Changing conceptions of “space” in Thailand from the nineteenth century to the present illustrate the transformation of legal and political authority as well as the proliferation of normative systems and dispute processing fora. By focusing analysis on variations in the meaning of a concept such as “space,” it is possible to discern the significance of litigation in relation to unofficial systems of normative ordering and to gain insight into changing relationships among individuals, local communities, patron-client hierarchies, and the state.
Dispute Processing and a Longitudinal Approach to Trial Courts
Authors: Mather Lynn
Published: June 2006

This article suggests ways to integrate the insights and findings of two rather distinct fields: docket-based, longitudinal studies of trial courts and studies of dispute processing. In particular, I argue that longitudinal research on courts would benefit enormously from the incorporation of concepts and data on dispute processing. For example, instead of taking court cases as the starting point for study, longitudinal research should explore the multistage and transformative nature of disputing. Historical data should also be collected on the nature of the relationships between opposing litigants, on the roles played by participants other than the litigants (lawyers, supporters, audiences, third parties), and on the nature of processes within courts and within alternative community institutions for handling disputes. Longitudinal research can also contribute to our understanding of dispute processing by showing how current processes have been shaped by past use, and how changes in institutions and legal doctrine have influenced the definition and processing of disputes. I also discuss the weaknesses shared by some of the research in both fields, such as a greater concern for process than for outcome, a tendency to ignore political aspects of litigation, and an overemphasis on individual disputing behavior. I conclude by suggesting that longitudinal research on trial courts should pay greater attention to change in ideas about law and to shifting conceptions of right and wrong, cause and responsibility, and problem definition.
Commercial Relations, Contract, and Litigation in Denmark: A Discussion of Macaulay's Theories
Authors: Blegvad Britt-Mari
Published: June 2006

The concept of thematization—the process by which actors select a frame of reference for their communications—captures an aspect of dispute resolution that is fundamental to Macaulay's description of noncontractual commercial relations and to many recent dispute resolution studies. Thematization both describes the identification of events as relevant to relations between the parties and links these events to special resources and sanctions. In the thematization process managers apply their knowledge of commercial relations and of transaction structures to ensure freedom to choose between modes of handling matters. A pilot study of Danish firms illustrates the workings of the process. The author's preliminary analysis suggests that thematization within the firm determines how various forms of norms are applied at different times. Businessess continue to employ laws and litigation when other forms of governance of economic relationship fail. Thus law is still an important source of power in business.
Government Litigation and National Policymaking: From Roosevelt to Reagan
Authors: Heydebrand Wolf
Published: June 2006

Changes in government litigation during the past fifty years are treated as an indicator of changes in policymaking priorities of various national administrations during that period. Policies of direct government intervention (enforcement) are distinguished from policies of indirect intervention (regulation). They are measured here by U.S. plaintiff and U.S. defendant litigation trends in federal district and appeals courts from 1937 to 1986. Trends in administrative appeals from regulatory agencies, boards, and commissions to the appeals courts are used to estimate the intensity of regulatory activity. There is some evidence of systematic variation in government litigation and administrative appeals due to an “administration” effect, but there are also secular tendencies suggesting a more general “government” effect cutting across various administrations. The implications of the analysis for the theory of the state are discussed.
The American State from the Bottom Up: Of Homicides and Courts
Authors: Monkkonen Eric H.
Published: June 2006

The local political economy links courts to society. A consideration of this linkage helps explain why so few of New York City's nineteenth-century homicides resulted in punishment. Their punishment requiring both state and local governments' cooperation and expenditures, high homicide rates manifested fiscal contradictions imposed by local voters, who desired high service but low taxes. Thus trials for homicides did not index homicides but were complex, indirect outcomes of fiscal, political, and soical processes.
Civil Litigation Trends in Europe and Latin America Since 1945: The Advantage of Intracountry Comparisons
Authors: Clark David S.
Published: June 2006

Civil litigation rates in the European and Latin American countries examined in this article rose during the 1970s. It is unlikely, however, that this growth was primarily caused by socioeconomic development. First, per capita economic growth slowed during the 1970s compared to the earlier postwar period. Second, litigation rates between 1945 and 1970 were either flat or cyclical, reacting to forces independent of socioeconomic development. Third, rates of filing civil cases in the 1980s seem again to be falling. By investigating regional litigation rates within a country, nevertheless, it appears that the level of socioeconomic development does influence the total number of disputes generated or the citizenry's propensity to use formal courts. Further progress in understanding the multiple factors affecting civil litigation trends will depend on a sophisticated local environment model and further intracountry studies.
Kissing Hands and Knees: Hegemony and Hierarchy in Sharfa Discourse
Authors: Messick Brinkley
Published: June 2006

Two categories of Muslim legal texts are utilized in Yemen. In the methodological literature I examine conceptions of common sense and consensus, and the relation of knowledge and ignorance. In the applied literature, I review egalitarian and hierarchical themes. The hegemonic qualities of such texts derive from their appropriation of ordinary wisdom and from the shifting polyvocality of the texts themselves.
The Significance of Prison Conditions Cases: Budgets and Regions
Authors: Feeley Malcolm M.
Published: June 2006

This paper examines William Taggart's article on the judicial power of the purse as it affects American prisons and jails. It argues that the central concerns in this area have involved issues of judicial propriety and judicial capacity rather than, as Taggart argues, whether judicially mandated expenditures disrupt normal budget processes. It then takes issue with Taggart's conclusions that the courts have had little impact on prisons and jails. Using his evidence, this paper argues that the courts have had a significant effect in transforming prisons and jails in at least one region of the country, the South.
Cultural Context and the Impact of Traffic Safety Legislation: The Reception of Mandatory Seatbelt Laws in Yugoslavia and Illinois
Authors: Hayden Robert M.
Published: June 2006

In 1985, laws mandating the wearing of automobile seatbelts went into effect in Illinois and in Yugoslavia. Although the form of the legislation was similar in both jurisdictions, the public response to the laws was very different in the two societies. In Illinois, there was public opposition, a protracted legal challenge to the law, and minimal enforcement by the police. In Yugoslavia, there was no public or legal challenge to the law yet strict enforcement. Compliance, however, was much greater in America than in Yugoslavia. Since previous studies of the impact of seatbelt laws in the United States and in other countries had found patterns of compliance that were similar to those in Illinois, the Yugoslav situation is anomalous. This unexpected finding raises questions concerning the importance of cultural context on the effectiveness of seatbelt laws, on the basic views of law in the two societies, on problems in testing deterrence theory cross-culturally, and on the problems and benefits of comparative research on the impact of legislation.
Conflict and Compromise: The Politics of Lok Adalats in Varanasi District
Authors: Moog Robert S.
Published: June 2006

Researchers use a variety of approaches in analyzing dispute processing outside of adversarial court proceedings. Some emphasize disputant decisionmaking, while others, who generally take a more critical view of these alternatives, approach dispute processing alternatives from the perspective of the state and its interests. In this article I use a third approach which focuses on the political behavior of actors involved in the organization, administration, and staffing of these alternative mechanisms. The approach is applied to a relatively new alternative to adjudication in the courts in India, the lok adalat.
Economy, Community, and Law: The Turnpike Movement in New York, 1797–1845
Authors: Klein Daniel B. , Majewski John
Published: June 2006

Turnpikes promised a solution to the problem of bad roads, but private management of highways was a startling innovation. Some people opposed the idea of turnpikes as exemplifying two bêtes noires of the post-Revolutionary period, the “private corporation” and “aristocracy.” Much of the controversy, however, was rooted in local disputes over legislative concessions to turnpike protesters. The legislature both expressed and responded to turnpike protest by writing laws favorable to local users and injurious to the financial viability of the companies. Partly in consequence, the turnpikes were unprofitable. Landowners, merchants, and farmers struggled to finance turnpikes, not so much in hopes of company dividends but in hopes of improved transportation, stimulated commerce, and higher land values. Many turnpike projects failed to be constructed, and those that were constructed carried on in a condition that reflected their precarious financial state.
Rejoinder
Authors: Berk Richard A. , Boger Jack , Weiss Robert
Published: June 2006

We appreciate Professor Paternoster's evenhanded review of our article and consider many of his concerns legitimate differences of opinion. But it is, nevertheless, useful to specify the key points on which there is agreement or disagreement.
Principals and Accessories in Capital Felony-Murder: The Proportionality Principle Reigns Supreme
Authors: Finkel Norman J. , Smith Stefanie F.
Published: June 2006

In its 5–4 decision in Tison v. Arizona (1987), the Supreme Court put forth disputable empirical assertions about where community sentiment stood on the death penalty for felony-murder accessories. The Tison majority claimed that the community would support the death sentence for an accessory where (1) major participation and (2) reckless indifference to human life were shown. Two experiments were run to test these empirical assertions, and the results indicate quite the opposite. By a wide majority, community sentiment rejects the death penalty for such an accessory and rejects equal treatment of principal and accessory. Even beyond the death penalty question, to the issue of conviction under the felony-murder rule per se, attributions of causal and moral responsibility showed the principle of proportionality reigning supreme. Implications for how the Supreme Court goes about doing social science are discussed.
A Purified Sociology of Law: Niklas Luhmann on the Autonomy of the Legal System
Authors: Rottleuthner Hubert
Published: June 2006

Niklas Luhmann is a troublemaker: he writes a great deal, and on very many subjects, and he is still expanding his theory. As a jurist, he started with studies on law and administration, but soon he reached the level of general sociology and published a wealth of books and articles on power, love, religion, morality, education, art, the economy, and the like. With his supertheory he is now on his way to inheriting the philosophical tradition of the Occident (cf. Habermas, 1985: 426–45). Luhmann has developed his own terminology, which sounds familiar, but in which the meaning of customary expressions such as “legitimacy,” “ideology,” “institution,” and “meaning” is intentionally distorted. He also uses new concepts like “autopoiesis” and has created models for a fashionable semantic: “reduction of complexity,” “legitimation by procedure”—now clichés for a social scientist. His compact-hermetic supertheory, his nicely constructed conceptual framework does not derive from a single source or principle only; rather, Luhmann has combined various theories and approaches in his super-mega-world view. Not only does he use cybernetics, formal systems theory (input-output models), sociological systems theory à la Parsons, Husserl's phenomenological epistemology, Gehlen's anthropology, and symbolic interactionism, but he has also recently borrowed from thermodynamics, biology, neurophysiology, theory of cells, and computer theory (cf. Luhmann, 1984: 27). Luhmann claims to have established a general systems theory, for which law and sociology of law are only a single field of application.
Power, Legal Imperialism, and Dependency
Authors: Schmidhauser John R.
Published: June 2006

This review essay integrates applicable elements of scholarly perspectives that in quite different ways deal with political and economic power, legal imperialism, and dependency. Representative examples of scholarly treatments of these subjects were chosen from analyses of families of law, critical legal studies, comparative legal systems, world system and dependency theory, and legal history. Most are modern or contemporary works, but a few were chosen from nineteenth- and early twentieth-century publications to trace changing modes and emphases upon the central theme of law and power.
Law and Society Studies in Korea: Beyond the Hahm Theses
Authors: Yang Kun
Published: June 2006

The history of law and society studies in Korea is rather short. Although there were some precursors like Chong Yag-yong (1762–1836), who conducted pioneering legal studies on the basis of empirical methodology, the sociological perspective he pioneered unfortunately failed to flourish. As the momentum of spontaneous modernization, including the law in the late Yi dynasty (1392–1910), was frustrated by Japanese colonial rule, it was only after the liberation of the nation in 1945 that jurisprudence emerged as a subject of academic interest.
The Sociology of Law in China: Overview and Trends
Authors: Wei-Dong Ji
Published: June 2006

Sociology of law in the Chinese mainland is currently enjoying a revival. Since 1979 the legalization of Chinese society has been surging forward; legal theories, however, have made slow progress. Some approaches, such as “perplexity of jurisprudence” or “the crisis of Communist legal theory,” have revealed restlessness and reflection in law circles. Therefore, when a few young research workers raised the clarion call “Make a breach in doctrinairism through sociology of law,” a chord was struck in the hearts of many people. On September 12, 1987, the first national symposium for sociology of law was held under the auspices of the Law Department of Peking University and the Politics and Law Research Group in the Institute of Reform of the Economic System in China. Over three days, the fifty-three persons present from thirty organizations throughout the country submitted twenty-five papers to the symposium, decided on the Plan for Exchange and Research in Legal Sociology (abbreviated in English as PERLS), and discussed the tasks ahead. As of January 30, 1988, the membership of PERLS had reached 186 (including forty-one policy research workers of state organs and ten lawyers), and the number of research projects concerning sociology of law totaled six, scattered all over Beijing Municipality, Shanghai Municipality, and Jilin and Jiangxi provinces. The Institute of Comparative Law and Sociology of Law, Peking University, and the Shanghai Institute of Sociology of Law were established recently. In addition, there are also some new research organizations concerned, such as the Commission of Law Studies in the Chinese Association of Behavior Science, the Institute of Sociology and the Research Group of Legal Systems Science in China University of Political Science and Law, and the Institute of Legal Psychology in Nankai University. The reestablishment of sociology of law in China is directed and supported by Professor Zhao Zhen-jiang, chair of the law department of Peking University, and Professor Shen Zong-ling, head of the Institute of Comparative Law and Sociology of Law in the same university.
Women, Differences, and Rights as Practices: An Interpretive Essay and a Proposal
Authors: Villmoare Adelaide H.
Published: June 2006

This essay argues that feminist rights analysis should broaden and diversify its reach to include the rights talk from the everyday lives of all sorts of different women—to look at women's rights at least in part as practices. Women's practices within particular, local contexts become crucial to feminist interpretations of rights because here women articulate the significance of rights (and their denials) for their political and social identities and for their thoughts and acts of resistance and acquiescence to hegemonic forces. In presenting this argument, I offer an interpretation of recent Anglo-American feminist and postmodern, pluralist legal scholarship that together fosters an understanding of rights as practices, as mundane legal claims women make in their day-to-day worlds. I analyze and elaborate these views in order to develop and encourage an interpretation of rights and talk about rights as practices of different women.
Doing the Right Thing? Toward a Postmodern Politics
Authors: Hutchinson Allan C.
Published: June 2006

“We have learned the answers, all the answers: It is the question that we do not know.”

—Archibald MacLeish (1928)

Joel Handler would have had big problems with Spike Lee's Do the Right Thing, It is an auteurial tour-de-force by way of a postmodern fable for the ages that is self-consciously perplexing and inconclusive. While focusing on the competing imperatives of the pacificism of Martin Luther King's assimilationist politics and the violence of Malcolm X's cultural nationalism, Lee poses the more general and debilitating dilemma that faces those committed to decisive action in an opaque world. In a pivotal scene, the flip and up-and-coming Mookie is harangued by a local and elderly busybody. In hushed and conspiratorial tones, he advises Mookie to “Always do the right thing.” The exasperated Mookie complains, “That's it? Do the right thing? O.K., I got it. I'm gone …” As the film advances to its climactic and chaotic denouement, Mookie is forced to confront the excruciating accuracy and infuriating elusiveness of this absolutely trite piece of sage advice. Determined to “do the right thing,” he acts in a way that both he and almost everyone else will forever question and second-guess. In this appropriately cryptic manner, Lee suggests the fecundity and fragility of political action in a postmodern world.
For What It's Worth
Authors: Winter Steven L.
Published: June 2006

Usually, one thinks of nostalgia as the characteristic vice of the conservative. When Republicans bandy slogans like “family values,” progressives are quick to recognize the dangerous sentimentality that yearns for a status quo ante in which men were men and women were women and minorities were seldom seen and never heard—the age, as Ronald Reagan so callously put it, “back before we knew we had a race problem.” In contrast, one thinks of Utopian romanticism as the characteristic weakness of the progressive. The radical's longing for revolutionary change is seen by conservatives as the dangerously naive and quixotic yearning for human perfection in a flawed and tragic world.
On Rattling Cages: Joel Handler Goes to Philadelphia and Gives a Presidential Address
Authors: Macaulay Stewart
Published: June 2006

Joel Handler is a friend, and I have appreciated his work for almost 30 years. I had dinner with him two nights before he gave his presidential address in Philadelphia. He knew that he was taking a chance by doing something different, and he hoped that he could bring it off. He did. Even if those he challenged raise valid objections to his position—and I'm not the one to judge this—he raised important questions and started us toward important answers.

A presidential address at a professional association is an odd art form. Beginners and those completely outside of the group's tradition don't get to be president. Nonetheless, if all you do is celebrate the mainstream, you put the audience to sleep. You must give the speech during a lunch. You compete with dessert and waiters removing plates. You talk after awards and other ceremonies have taken more time than planned. Entertainment may be more appropriate than challenging thought." Despite all these hazards, Joel Handler flattered his audience by demanding our attention and offering ideas clearly worth it.
Bastardy, Gender Hierarchy, and the State: The Politics of Family Law Reform in Antigua and Barbuda
Authors: Lazarus-Black Mindie
Published: June 2006

Law's saliency in the development of West Indian societies began in the earliest days of settlement and has remained critical and constitutive. The author examines the transformation of Caribbean law over time as an instrument of class, kinship, and gender relations and investigates ethnographically the repeal in 1986 of illegitimacy as a legal category in Antigua and Barbuda. In contrast to the colonial era, working-class ideas about gender and family and actions by married women played a pivotal role in banishing bastardy and reconstituting the relationship between families and the state. This struggle reveals lawmaking as a deeply contextualized and gendered practice.
Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance
Authors: Gibson James L.
Published: June 2006

This research examines the linkages among institutional legitimacy, perceptions of procedural justice, and voluntary compliance with unpopular institutional decisions within the context of political intolerance and repression. Several questions are addressed, including: To what degree do judicial decisions contribute to the acceptance of unpopular political decisions? Do court decisions have a greater power to legitimize than the decisions of other political institutions? Are courts perceived as more procedurally fair than other political institutions? Do perceptions of procedural fairness—be it in a court or legislative institution—contribute to the efficacy of institutional decisions? The basic hypothesis of this research is that to the extent that an institution employs fair decisionmaking procedures, it is viewed as legitimate and citizens are more likely to comply with its decisions, even when they are unpopular. Based on an analysis of national survey data, I conclude that, although perceptions of institutional procedure have little impact on compliance, institutional legitimacy does seem to have some effect. The United States Supreme Court in particular seems to have some ability to elicit acceptance of public policies that are unpopular with the mass public. This effect is greatest among opinion leaders. I conclude with some observations about how these findings fit with the growing literature on procedural justice and with some thoughts about the implications of the findings for the protection of democratic liberty.
Jurors' Judgments of Business Liability in Tort Cases: Implications for the Litigation Explosion Debate
Authors: Hans Valerie P. , Lofquist William S.
Published: June 2006

Criticisms of the civil jury, including charges that the jury is biased against business, have been central to debates over the litigation explosion and demands for tort reform. This article seeks to inform these ongoing controversies by examining tort jurors' accounts of how they reached decisions in cases with business parties. Interviews and questionnaire data showed that jurors were skeptical of plaintiff tort claims against businesses, organized their accounts more on the actions and motivations of plaintiffs than on the responsibilities of business, and spoke often of the litigation crisis and the importance of limiting awards.
Divorce Rates and the Fault Requirement
Authors: Marvell Thomas B.
Published: June 2006

No-fault divorce legislation fundamentally changed the formal legal requirements for divorce from grounds based on moral concerns to those showing that the marriage has broken down without attributing blame. The old laws, which required that the plaintiff be blameless and prove malfeasance by the spouse, would have greatly restricted the number of divorces if they had not been widely subverted through collusion and perjury. The no-fault legislation gives an opportunity to test whether the attempts to legislate morality had any impact on divorce rates. Many reformers and researchers have claimed that the fault provisions were so thoroughly subverted that their removal did not lead to more divorces. The present study explores the impact of no-fault laws in thirty-eight states by applying a time-series-cross-sectional design. When grouped into one variable the laws did increase divorces, but when individual laws are analyzed, only a minority, primarily in eastern states, evidence significant impacts. Finally, I argue that it is probably beyond the limits of feasible social science research to determine why some laws had impacts but others did not.
Legislating Adequacy: The Impact of Child Support Guidelines
Authors: Pearson Jessica , Thoennes Nancy , Tjaden Patricia
Published: June 2006

Three major child support guideline models are currently used in the United States to stimulate adequate levels of child support. To evaluate the effects of these guidelines, we examined cases filed before and after their introduction in three states that enacted different models. Overall, we found a modest increase in child support awards and few differences across models. The most substantial increases occurred in low-income cases in settings in which awards had historically been low. Guidelines also appeared to decrease the likelihood of a zero dollar award in cases that had previously lacked orders: those in which the father was unemployed and in which the obligor was female.

Post-guideline order levels in low-income families still fall short of the best available estimates of expenditures on children in intact households; they match expenditures in intact households in middle-and upper-income families. We consider several factors that may explain the limitations as well as the successes of guidelines in stimulating change.
Power, Intercorporate Networks, and “Strategic Bankruptcy”
Authors: Delaney Kevin J.
Published: June 2006

Strands of scholarly writing on corporate bankruptcy are scattered across the fields of economics, jurisprudence, political science, and policy analysis. These varied perspectives tend to share common weaknesses that point directly to adding a sociological voice to the debate. An analytic framework that emphasizes power, interorganizational ties, and the embeddedness of organizational action in a larger social structure yields new insights into “strategic bankruptcies,” such as the Chapter 11 filing of the Manville Corporation. In turn, this perspective leads to a questioning of some of the basic assumptions concerning the role and operation of bankruptcy law.
Creating People's Justice: Street Committees And People's Courts in a South African City
Authors: Burman Sandra , Schärf Wilfried
Published: June 2006

Ever since coming under colonial rule, Africans in South Africa have operated informal courts which the state courts have not recognized. Using fieldwork data, we contrast two such nonstate judicial structures in Cape Town. We describe the street committees, constituted by the older generation as a subsidiary form of local government coexisting uncomfortably alongside formal apartheid authorities. We then show the explosive consequences of the development from 1985 of youth-run people's courts, which attempted to redefine community values. We conclude with a discussion of our findings in the context of existing theoretical work on informal justice and draw some tentative conclusions on possible developments in a post-apartheid era.
Conscience, Significant Others, and Rational Choice: Extending the Deterrence Model
Authors: Grasmick Harold G. , Bursik Robert J.
Published: June 2006

We propose that significant others and conscience function as agents of social control in a manner similar to the State. All three pose possible threats or costs that are more or less certain and severe which actors take into account in considering whether or not to violate the law. State-imposed costs, which have been addressed in the literature on deterrence, are material deprivations in the form of fines and incarceration. Socially imposed costs are the embarrassment or loss of respect actors might experience when they violate norms which significant others support. Self-imposed costs are shame or guilt feelings which actors might impose upon themselves when they offend their own conscience by engaging in behaviors they consider morally wrong. The threats of shame and embarrassment, like the threat of legal sanctions, affect the expected utility of crime and, thus, the likelihood that crime will occur. In the research reported here, parallel measures are developed of the perceived threats of each of these three kinds of punishment for three illegal behaviors (tax cheating, petty theft, drunk driving). The effects of these perceived threats on people's intentions to violate the law are then examined in a random sample of adults. Threats of shame and of legal sanctions inhibit the inclination to commit each of the three offenses, but the findings for embarrassment appear less compatible with the expected utility model.
Inventing Market Property: The Land Courts of Papua New Guinea
Authors: Cooter Robert D.
Published: June 2006

This article reports field research on Papua New Guinea's land courts, which decide property disputes in customary law. Customary law did not contemplate exchange of real property outside the kin group. Changing conditions have created an irresistible pressure for markets in land, which require extending law to encompass exchange with outsiders. The freehold solution is to give absolute, unitary ownership over land to individuals and end the kin group's role in resource allocation. Alternatively, the kin group can be reconstituted as a cooperative with ownership rights. If imposed by legislative fiat, either of these solutions will disrupt the customary economy by displacing its incentive system. A better solution allows custom to evolve and modernize itself through the common law process.
Decisions to Participate in and Desist from Four Types of Common Delinquency: Deterrence and the Rational Choice Perspective
Authors: Paternoster Raymond
Published: June 2006

Empirical tests of the deterrence doctrine have suffered from two deficiencies: (1) they have rarely been conducted within the context of a more general theory of social control, and (2) they have confounded the effects of sanction threats on different kinds of offending decisions. In this paper, deterrence variables (perceived certainty and severity) were incorporated into a rational choice model of common (minor) delinquent offending. The rational choice perspective presumes that crime and delinquency are the products of imperfectly informed choice and that decisions to offend are made, assessed, and remade. It was assumed here that decisions to offend and cease offending would in part be affected by the contemplation of sanction threats in addition to material, affective, and moral considerations. The data in support of the inclusion of deterrence variables in a rational choice model were equivocal. Although perceptions of certain punishment had a significant effect on the decision to commit and desist from some offenses, the observed effects were marginal and far less consequential than were the effects of social costs and other considerations. The data did indicate that certainty of punishment (but not severity) affects some offending decisions.
The Legal Community and the Transformation of Disputes: The Settlement of Injunction Actions
Authors: Atleson James B.
Published: June 2006

Lawyers in cases involving injunctions against picketing represent clients in situations of great immediacy. A significant number of injunction actions are settled with reductions in picketing despite a seemingly restrictive statute and a highly organized workforce. This study of legal culture examines the role of lawyers in striving to create predictability, especially in regard to judges and the police, and in transforming conflicts of value into disputes over interests that can be resolved without resort to formal adjudication.
Power and Legal Artifice: The Federal Class Action
Authors: Garth Bryant G.
Published: June 2006

Using case studies and interviews with lawyers and representatives in class actions, this article explores the contribution that class actions make to their ostensible beneficiaries. The article first distinguishes the major types of class actions in terms of the roles of lawyers and class representatives, ranging from very passive representatives to individuals intensively involved with the dispute that gave rise to the litigation. The article next seeks to evaluate the class actions. On the basis of the results of the class actions, the article finds that class actions cannot be proclaimed major contributors to social change. The focus on results, however, is somewhat misleading. The class action plays a much more significant role through its impact on the parties as litigants and as individuals involved with a dispute. To understand this dimension, which has applications beyond the class action, the article suggests that the dispute transformation perspective should be modified to go beyond the metaphor of a dispute that changes form as it goes through different processes. Disputants in the class action can be thought of as an audience that interprets itself—and is empowered or disempowered—in part by what it learns from watching a legal dramatization of the dispute.
Penetrability of Administrative Systems: Political “Casework” and Immigration Inspections
Authors: Gilboy Janet A.
Published: June 2006

To achieve institutional goals, public agencies commonly rely on the political support of interest groups, the executive, and the legislature. While much is written about public agency vulnerability to pressures from these sources, little is known about how influence and agency behavior are linked. This article provides an in-depth look at one agency's response to an important segment of its environment. Drawing on an empirical study of administrative discretion, the study explores the Immigration and Naturalization Service's dependence on the support of politicians and pragmatic response to their “casework” on behalf of constituents. The article highlights a neglected feature of the influence process—how it affects the behavior of front-line public officials, particularly through their anticipation of the possibility that there will or might be casework complaints. It describes the inspection context as understood by front-line immigration inspectors, the asymmetric risks posed to them by casework, and the strategies they “rationally” employ to deal with these risks—strategies that promote accommodation as well as responses based on the perceived power of violators. The article suggests that a lack of countervailing incentives in certain kinds of cases underlies a cultural-political environment of accommodation to outsiders.
On Judicial Review in Islamic Law
Authors: Powers David S.
Published: June 2006

Classical Islamic law apparently constitutes an exception to the finding that legal systems in complex societies invariably possess hierarchical appellate structures. The prevailing wisdom among Islamicists for over a half-century has asserted that there are no appellate structures in Islamic law, that the decision of a judge is final and irrevocable, and that a judgment may not be reversed under any circumstances. The exceptional nature of Islamic law has been explained by Martin Shapiro as a function of the absence of hierarchy in the Islamic religious community. In this article, I argue that Shapiro has been poorly served by Islamicist scholarship. On the basis of a reexamination of Islamic legal theory and an analysis of 14th-century Islamic court practice, I demonstrate that a judicial decision was reversible by the issuing judge himself, albeit under limited and precisely defined conditions; that hierarchical organization was a regular feature of Muslim polities; that the court of the chief judge of the capital city served as a court of review for the decisions of local judges; and that Islamic law also developed a unique, nonhierarchical system of successor review. My conclusions will be of interest both to Islamicists and to social scientists who study the relationship between judicial institutions and social organization.
Selling and Processing Law: Legal Work at Franchise Law Firms
Authors: Van Hoy Jerry
Published: June 2006

I explore the work of secretaries and lawyers at one of the most innovative providers of personal legal services in the last 20 years—franchise law firms. I show how the organization of work and the nature of the legal work at two firms has led to the transformation of lawyers into salespeople for mass-produced legal services. While clients may benefit from the convenience of franchise law firms, the attorneys employed by these firms are frustrated by limitations placed on their professional judgments and skills.
Inequality and the Punishment of Minor Offenders in the Early 20th Century
Authors: Myers Martha A.
Published: June 2006

This article extends recent theorizing on 19th- and early 20th-century social control to the punishment of minor offenders in the American South. Despite surface differences in state control and in court contexts, the punishment of convicted misdemeanants strikingly resembled its more serious counterpart. The racial composition of both chain-gang and penitentiary populations was similar, as were trends in the rate at which the public and private sector forcefully expropriated the labor of black and white males. Depressed economic conditions adversely affected all punishment rates, regardless of race. Although more circumscribed in impact, racial inequality and labor supply and demand also affected incarceration in the chain gang. The author considers directions for future research and theory.
Professionalism and Monopoly of Expertise: Lawyers and Administrative Law, 1933–1937
Authors: Shamir Ronen
Published: June 2006

This study situates the response of various segments of the bar to the New Deal era of administrative expansion in the context of contemporary theories of the legal profession. I focus on the theoretical formulations of a market monopoly approach, a functionalist approach, and a systems approach to the study of professionalism and professional competition. I consider each approach in light of two foundational prisms: (1) the stratified composition of the bar necessarily leads to a corresponding variation in the response to changes in the legal environment; (2) at the elite level of the profession, there is considerable attention to changes that affect the law as a system of knowledge and as a resource around which lawyers establish their professional legitimacy as exclusive experts. I draw attention to the strategic mechanisms that lawyers invoked in order to deal with the inter- and intraprofessional competition that accompanied the expansion of the regulatory state.
Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative
Authors: Ewick Patricia , Silbey Susan S.
Published: June 2006

The authors outline a sociology of narrative—an analysis of the role of narrative in various social contexts, including academic sociolegal scholarship. Narratives are social acts that depend for their production and cognition on norms of performance and content that specify when, what, how, and why stories are told. Because narratives are situationally produced and interpreted, they have no necessary political or epistemological valence but depend on the particular context and organization of their production for their political effect. The analysis specifies the variable conditions that produce hegemonic tales—stories that reproduce existing relations of power and inequity—and subversive stories—narratives that challenge the taken-for-granted hegemony by making visible and explicit the connections between particular lives and social organization.
Writing Law, Making a “Nation”: History, Modernity, and Paradoxes of Self-Rule in the British Virgin Islands
Authors: Maurer Bill
Published: June 2006

Law has become a key signifier in British Virgin Islander nationalist discourse. British Virgin Islanders cast law as central to their identity as a people and celebrate the self-authoring of law. At the same time law writing has fostered continued colonial rule and subordination to the global market. The International Business Companies Ordinance, hailed as the BVI's first truly self-authored law, produced a marketable identity for the territory in the world of international finance, yet led to increased surveillance by metropolitan powers and contributed to the deferral of political sovereignty. This article considers the role of law in modern narratives of national uniqueness. It explores the paradox that modern law, with its accompanying rhetoric of progress, its formations of history, and its construction of “national” selves, is central to the cultural politics of difference, yet is also central to the processes of capitalist integration that both deny and demand difference.
The Domestication of Violence in Mediation
Authors: Cobb Sara
Published: June 2006

This article, based on an analysis of 30 community mediation sessions, provides a theoretical frame for tracking the emergence and domestication of violence stories in the sessions themselves. Challenging the Cartesian distinction between mental and physical violence, I use Scarry's 1985 work to identify the presence of violence stories as stories in which speakers (1) objectify pain through the discursive production of weapons and wounds, (2) describe the loss of voice itself, and (3) describe attempts to reappear as agents in the elimination of pain itself. Drawing on Minow's 1987 analysis of rights discourse, I offer a definition of the “domestication” of violence as a movement from “rights” to “needs” in the discourse of the session. With this framework, and consistent with Silbey and Sarat's 1989 research, I found that violence stories were domesticated in 80% of the sessions in which such stories emerged. Finally, drawing on Foucault (1979), I describe this domestication process as a function of the “microphysics of power” and track the rules of transformation through which violence is subducted into the discourse of mediation itself. I argue that the mediation process contributes to erase any morality that competes with the morality of mediation and, in the process, disappears violence.