bluuebunny/crossref_metadata_2025 huggingface dataset:
Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives
Authors: O'Barr William M. , Conley John M.
Published: June 2006

This article examines litigant narratives in small claims courts from two perspectives: the degree to which relaxed procedures and evidentiary constraints provide greater satisfaction to litigants than more formal courts, and the problems litigants encounter in providing legally adequate accounts without the assistance of attorneys. Data for this study are 55 trials in two states (North Carolina and Colorado). The findings show that narratives in small claims court bear many resemblances to everyday talk about trouble, provide litigants significant opportunities to tell their stories in court, but frequently fail to include critical components of legally adequate claims.
Prosecutorial Discretion in Requesting the Death Penalty: A Case of Victim-Based Racial Discrimination
Authors: Paternoster Raymond
Published: June 2006

Data from 300 homicides involving an aggravating felony were examined to determine what factors influence the prosecutor's decision to seek the death penalty. It was found that the race of the victim was significantly related to the decision to seek the death penalty even when several legally relevant factors were taken into account. The data also revealed that black killers of whites were more likely and black killers of blacks less likely to have the death penalty requested. A breakdown of homicides into those involving a single aggravating felony and those involving multiple felonies revealed that racial effects were stronger in the former category. There was some evidence that this difference in the effects of race reflected a different threshold of tolerance for white and black murders. Black victim homicides resulted in a death request only when they crossed a threshold of aggravation that was higher than that found for white deaths.
Punishment and the Individual in the United States and Japan
Authors: Hamilton V. Lee , Sanders Joseph , Hosoi Yoko , Ishimura Zensuke , Matsubara Nozomu , Nishimura Haruo , Tomita Nobuho , Tokoro Kazuhiko
Published: June 2006

In this paper we argue that differences in the conceptualization of individual actors in networks provide the most parsimonious explanation for differences that occurbetweenAmerican and Japanese views of sanctions and between actors in different role relationshipswithineach society. Our empirical tests drew on respondents' hypothetical punishment choices and punishment rationales in surveys of Detroit, Michigan, and Yokohama and Kanazawa, Japan. As predicted, American views of punishments for everyday misdeeds were more likely to favor isolation or retribution and American rationales for imprisonment were significantly more retributive than in Japan. Within each culture, offenses between intimates were least likely to evoke isolative or retributive punishments whereas offenses between strangers were most likely to do so. We conclude by considering alternatives to our structuralist explanation of these findings and by suggesting some implications of legal culture for dispute resolution in the United States versus Japan.
Organizational Compliance with Court-Ordered Reform
Authors: Ekland-Olson Sheldon , Martin Steve J.
Published: June 2006

We present a detailed case study of administrative responses to litigated reform efforts directed at the Texas Department of Corrections over a two-decade period. We found that administrators attempted to maintain their organizational boundaries by: (1) controlling information; (2) using political connections in the broader community; (3) launching a judicial counterattack; and (4) exercising administrative prerogatives. Defiance of demands from the broader legal community was related to: (1) the organizational culture of the Texas prison system, which developed and existed in isolation not only from the federal courts but also from oversight by state officials; (2) pronouncements by the prison system's leadership that created a moral climate in which court-ordered reform could be readily defined by prison staff as illegitimate; and (3) ineffective control structures within the system that failed to respond to violations of the law by prison staff. Keeping the limitations of a single case study in mind, we close with a set of observations for addressing court-ordered organizational reform in a comparative framework.
The Small Claims Court: A Reconceptualization of Disputes and an Empirical Investigation
Authors: Vidmar Neil
Published: June 2006

In this paper disputes are seen as varying along a dimension of admitted liability, that is, the extent to which defendants admit some obligation to plaintiffs; they may admit no liability, partial liability, or full liability. This conceptualization was used in an empirical study of a small claims court. The results paint a portrait of the court that is at variance with most of the previous literature. Consumer issues constitute a substantial portion of the court caseload. On average, defendants, including individual consumers, do well when they dispute claims. Among disputed cases, small rather than large businesses predominate. Prior literature has suggested that, in comparison to adjudication, mediation of claims produces compromise outcomes and higher rates of compliance. This research shows that mediation yields a large percentage of all-or-none results, but to the extent that there is compromise and compliance, it can be partly ascribed to admitted liability characteristics. Some data on defaulted cases are also presented.
Max Weber's Tragic Modernism and the Study of Law in Society
Authors: Trubek David M.
Published: June 2006

While Max Weber is revered as one of the patron saints of the law and society movement, his views on the nature and limits of sociological studies in law are not fully understood. Using recent analyses of Weber's legal thought (Kronman, 1983) and overall social theory (Alexander, 1983a), the author argues that while Weber set forth the standard, positivist understanding of the sociology of law that influences research to this day, at the same time he critiqued this understanding and in the end despaired that social science could contribute significantly to human emancipation. Arguing that Weber's tragic modernism is an inappropriate guide for law and society studies today, the author suggests an alternative vision in which the sociology of law is seen as part of a pragmatic enterprise of social transformation.
Grievances and Legitimacy: The Beginnings and End of Dispute Settlement
Authors: Lempert Richard O.
Published: June 2006

The study of dispute settlement within the sociology of law has, for the most part, been organized around institutionalized processes of dispute settlement, which typically has meant around dispute settlement institutions. Although some researchers—notably in anthropology—have provided detailed natural histories of disputes, including information about denouements, most dispute settlement research has focused on the immediate inputs into the institutions of dispute settlement, on processes of dispute settlement, and on dispute resolutions both as outcomes of processes and outputs of institutions. Inputs of interest have included, on the one hand, parties and their representatives and, on the other, the disputes parties bring. Process has been broadly defined to include actions that occur within dispute settlement institutions and also organized patterns of behavior, such as Eskimo song duels, that may not be institution bound. Outcomes and outputs are typically confounded and operationalized as the decisions of institutions, although we know that in some settings these decisions do not necessarily determine party outcome.
Judicial Disobedience of the Mandate to Imprison Drunk Drivers
Authors: Ross H. Laurence , Foley James P.
Published: June 2006

We report here the results of two empirical studies of laws mandating a jail term of forty-eight consecutive hours for repeat-offender drunk drivers. In both cases, noncompliance by judges, abetted by other criminal justice system actors, was extensive, and substantial proportions of offenders were not imprisoned as mandated. We explain these findings as evidence of both a disjunction between formal and operative definitions of the behavior in question—drunk driving—and the great difficulty of controlling the discretion of actors in the criminal justice system.
Evaluation, Diagnosis, and Prediction in Parole Decision Making
Authors: Carroll John S. , Wiener Richard L. , Coates Dan , Galegher Jolene , Alibrio James J.
Published: June 2006

Discretionary legal decisions have become a recent focus of theory development and policy-oriented applied research. We investigated parole release decision making in Pennsylvania from both orientations. Analyses of post-hearing questionnaires and case files from 1,035 actual parole decisions revealed that the Parole Board considers institutional behavior and predictions of future risk and rehabilitation in the decision to release on parole. Predictions seem also to be based on diagnostic judgments identifying causes of crime such as personal dispositions, drugs, alcohol, money, and environment. A one-year follow-up of 838 released parolees showed that predictions were virtually unrelated to known post-release outcomes. An actuarial prediction device was developed that is more predictive than subjective judgments. The use of decision guidelines to structure discretion is discussed, as well as the utilization of our research in guideline development by Pennsylvania.
Crowding, Social Control, and Prison Violence: Evidence from the Post-Ruiz Years in Texas
Authors: Ekland-Olson Sheldon
Published: June 2006

In this paper, I examine two explanatory models for prison violence. In the first, the crowding model, violence is said to arise from the cognitive confusion and tension induced by crowded conditions. In the second, the social control model, violence is seen as one among several important control mechanisms deeply rooted in the social order of prison life. While these models are clearly not mutually exclusive, they have taken researchers along quite distinct paths. I consider three forms of violence in the Texas prison system: homicide, inmate-inmate assaults with weapons, and inmate-staff assaults. My results, which support the control model over the crowding model, have several methodological and policy implications.
The Impacts of Evidence and Extralegal Factors in Jurors' Decisions
Authors: Reskin Barbara F. , Visher Christy A.
Published: June 2006

This study uses data from courtroom observations and posttrial interviews with jurors who served in thirty-eight actual sexual assault trials. It addresses three issues: (1) the effects of several measures of evidence on jurors' judgments of a defendant's guilt, (2) the relative merits of jurors' recollections of the evidence and measures of evidence coded at trial by trained observers, and (3) whether the effects of jurors' attitudes toward crime and their sentiments toward victims and defendants depend on the strength of the evidence, as Kalven and Zeisel (1966) contended. We find that both trial- and juror-level measures of evidence adequately capture the effects of evidence, and that neither measure is inherently preferable. Also, while jurors were influenced by extralegal factors, these effects were largely limited to weak cases in which the state presented little hard evidence, which is consistent with Kalven and Zeisel's “liberation hypothesis.”
Perceived Risk and Social Control: Do Sanctions Really Deter?
Authors: Paternoster Raymond , Saltzman Linda E. , Waldo Gordon P. , Chiricos Theodore G.
Published: June 2006

Perceptual deterrence researchers have used simple cross-sectional correlations between prior behavior and current perceptions to study the effect of legal threats on social control. Such designs are inadequate because they: (1) confuse the causal ordering of perceptions and behavior, and (2) fail to take into account other inhibitory factors in an explicit causal model. In an analysis of panel data, the methodological simplicity of earlier studies is shown to have led researchers to reach erroneous conclusions. Our data suggest that past studies report an experiential effect, not a deterrent effect, and that the effect of perceived sanctions on criminal involvement is minimal once social definitional factors (moral commitment, informal sanctions) are controlled.
Judicial Decisions in Civil Commitment: Facts, Attitudes, and Psychiatric Recommendations
Authors: Hiday Virginia Aldigé
Published: June 2006

Regression analysis is applied to civil commitment decisions to evaluate the importance of psychiatric opinion, externally visible “facts,” and judges' attitudes. Indices were constructed of evidence of dangerousness, based on information presented at court hearings, and of judges' attitudes toward psychiatrists, mental hospitals, and the mentally ill, based on their responses to Likert type items. Additional variables include respondent's prior commitment status, diagnosis, court behavior, race, sex, age, and family caring. The analysis suggests that “facts” and psychiatric opinion but not judges' attitudes are significant influences on commitment decisions.
Legal Pluralism
Authors: Engle Merry Sally
Published: June 2006

The intellectual odyssey of the concept of legal pluralism moves from the discovery of indigenous forms of law among remote African villagers and New Guinea tribesmen to debates concerning the pluralistic qualities of law under advanced capitalism. In the last decade, the concept of legal pluralism has been applied to the study of social and legal ordering in urban industrial societies, primarily the United States, Britain, and France. Indeed, given a sufficiently broad definition of the term legal system, virtually every society is legally plural, whether or not it has a colonial past. Legal pluralism is a central theme in the reconceptualization of the law/society relation.
The Interplay of Micro and Macro Processes in the Longitudinal Study of Courts: Beyond the Durkheimian Tradition
Authors: Sanders Joseph
Published: June 2006

This article argues that some of the weaknesses in the longitudinal study of courts derive from an excessively macro-law focus on legal processes relatively uninformed by micro-law processes. Greater attention to the micro-macro relationship offers new opportunities for longitudinal studies themselves and for the integration of their findings into the mainstream of law and social science.
Longitudinal Study of Trial Courts: A Plea for Development of Explanatory Models
Authors: Reiss Albert J.
Published: June 2006

Longitudinal trial court studies lack a simple model of system litigation. This essay advances the argument that models which attempt to explain either trial court behavior or changes in civil litigation have little explanatory power. Rather, a system mobilization model is needed that has the following paradigms: (1) a perception paradigm that produces awareness of matters that might be the subject of a conflict or dispute; (2) a paradigm that explains how these detected matters are socially constructed as potentially legal matters; (3) a legal mobilization paradigm explaining how legal agents or some legal subsystem is mobilized to handle some legal matters; (4) a process paradigm explaining how matters that enter the trial courts become matters for trial; (5) a trial court mobilization paradigm followed by (6) an appellate process paradigm. The development of such a model of system litigation will resolve some of the methodological as well as conceptual problems that currently beset research on trial courts. A number of these problems relating to the longitudinal study of trial courts are discussed.
The Dilemma of Clients' Rights in Social Programs
Authors: Tweedie Jack
Published: June 2006

Courts and legislatures often grant rights to clients of social programs so that the clients can protect their own interests in the programs. Previous research has questioned whether rights provide effective protections for clients' interests. In this study, I examine parental rights of school choice in Britain, showing that rights can provide effective protections for clients' interests under some conditions. However, this study also reveals the dilemma of rights: rights that are effective in protecting individual client interests can also undermine a social program's ability to serve the collective interests of all clients.
The Dynamics of Jail Reform Litigation: A Comparative Analysis of Litigation in California Counties
Authors: Welsh Wayne N.
Published: June 2006

Theory linking litigation onset, process, and outcome in jail reform lawsuits has been scarce. The author proposes a four-stage, comparative model: (1) conditions of surrounding legal and political environments, in concert with contextual factors (e.g., type of legal representation), set the stage for litigation in the trigger stage; (2) specific legal claims, defendants named, and litigation strategies shape litigation process at the liability stage; (3) the nature and degree of remedies crafted is shaped by complex interactions between litigants and judges at the remedy stage; and (4) judicial methods and litigant behavior shape negotiations, modifications, and compliance efforts in the postdecree stage. Using qualitative and quantitative research methods, the researcher examined hypotheses linking the four stages. All general-conditions lawsuits against California county jails between 1975 and 1989 (N=43) were coded and analyzed. Critical factors identified at each stage significantly influenced litigation incidence, process, and legal outcomes. The author discusses implications of a multimethod, comparative approach for studying court-ordered reform of public institutions.
The Value of Counsel: 20 Years of Representation before a Public Housing Eviction Board
Authors: Monsma Karl , Lempert Richard
Published: June 2006

Research into the effects of legal representation is rare because in many settings in which people might have lawyers, legal representation is either so common or so unusual that it cannot serve as a variable. Moreover, such research as exists is often poorly controlled or otherwise methodologically deficient. Our data set, derived from the case files of a public housing eviction board, allows us to overcome most of the difficulties that plague prior studies because it is relatively large and unusually rich in information about individual cases. We model the effects of various tenant and case characteristics on lawyer involvement as well as the effects of legal representation on case outcome. We find that lawyers tend to handle more difficult cases and that the likelihood that legal representation will aid a tenant depends on case type and changes over time. Our results, though likely to be context dependent, suggest how the effects of legal representation may be studied in other settings and the kinds of variables that may condition such effects.
Does Regulatory Enforcement Work? A Panel Analysis of OSHA Enforcement
Authors: Gray Wayne B. , Scholz John T.
Published: June 2006

This study tests the impact of OSHA enforcement on workplace injuries. Using data on injuries and OSHA inspections for a panel of 6,842 large manufacturing plants between 1979 and 1985, we find significant specific deterrence effects. Inspections imposing penalties induce a 22% decline in injuries in the inspected plant during the following few years. We suggest that narrow deterrence perspectives have led to unduly pessimistic assumptions about enforcement effectiveness and that a managerial attention model is more consistent with our findings.

In a technical appendix we describe the Chamberlain technique, a powerful analytic approach for panel data that provides tests and corrections for potential biases endemic in enforcement studies, including unmeasured heterogeneity among units, serially correlated dependent variables, and endogeneity of inspections. We argue that more empirical studies of enforcement impacts are necessary to provide an appropriate perspective for descriptive and analytic studies appraising regulatory behavior.
The Sociology of Law: Where We Have Been and Where We Might Be Going
Authors: Simon Rita J. , Lynch James P.
Published: June 2006

This review of work and trends in the sociology of law makes no claims to being exhaustive or comprehensive. If it succeeds in pinpointing and highlighting major work, important problems, and gaps in the field, in showing trends that have developed, and in suggesting ideas for future direction, we shall have accomplished our objectives.
Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States
Authors: Atkins Burton
Published: June 2006

Despite the advances made in the study of appellate courts in the past several decades, little attention has been devoted to evaluating the role of appellate courts cross-nationally. This article examines appellate courts in England and in America, particularly the English Court of Appeal and the U.S. Circuit Courts of Appeals. The American and English systems are proposed as alternative models of the relationship between courts and their respective political systems in Western common law regimes. Focusing on the intervention behavior of the intermediate appellate courts and their interaction with their respective courts of last resort, the data presented reveal more commonality than divergence in the behavior of the two judicial hierarchies.
Postmodernism, Protest, and the New Social Movements
Authors: Handler Joel F.
Published: June 2006

My subject is postmodern politics and law, protest from below, and the “new” social movements. The question I am concerned with is the value of postmodernism for transformative politics.

Scholars concerned with the struggles of subordinate groups have long emphasized protest from below. Accounts of the resistance of blacks and poor people became prominent in the 1960s. This tradition, joined by feminists, gays and lesbians, as well as others, continued in the 1980s. The new social movements are, roughly, environmental, antinuclear, peace, feminist, and gay and lesbian. Whether these broad movements are "new" or variations of older movements is much debated. For our purposes, they are included here insofar as they are antimaterialist, antistatist, antibureaucratic; they seek to cross traditional class lines in favor of humanistic, interpersonal, and communitarian values.
Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running “Their Own” Native Courts
Authors: Moore Sally Falk
Published: June 2006

This article is presented at two levels throughout. On the surface it is a straightforward historical analysis of a directive to British officers in charge of African courts in the late colonial period, with some African data adduced to sketch the local context into which the British were trying to insert new procedures and practices. On a deeper level the article uses the British colonial occasion to explore widely held cultural assumptions in Anglo-American law about the definability of “justice,” the concept of time and timing in legal affairs, and the complex place of the idea of legitimate, authoritative, and permanent “knowledge” in legal institutions.
Professional Construction of Law: The Inflated Threat of Wrongful Discharge
Authors: Edelman Lauren B. , Abraham Steven E. , Erlanger Howard S.
Published: June 2006

Institutional theories of organizational behavior consistently implicate the professions in explaining the diffusion of new organizational practices; yet there has been little empirical study of precisely what role the professions play. We address that issue by exploring the role of the personnel and legal professions in shaping employers' understandings of law and the threat posed by law. We focus on the implied contract theory of wrongful discharge, a recent common law development that allows employees—under a limited set of circumstances—to sue their employers when they are fired without good cause. We first present an analysis of the actual risk posed by the implied contract theory, based on a survey of published cases in six states. Then, by analyzing articles in professional personnel and law journals, we reveal a striking disparity between the actual threat posed by implied contract theory and the threat as constructed by personnel and legal professionals. Our findings support the argument that the professions play an important role in the diffusion of organizational practices and suggest that the professions' constructions of the environment may critically affect how employers respond to environmental threats.
“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice
Authors: Shamir Ronen
Published: June 2006

The image of courts as impartial and independent sources of authority is considered a prerequisite if they are to play a legitimizing role. Yet many studies suggest that courts systematically support and uphold state-sponsored policies. I ask how courts can support dominant political interests and at the same time appear impartial. A solution is suggested by looking at highly publicized judicial decisions by Israel's High Court of Justice in which state policies concerning the Israeli occupied territories were overruled. Such cases, while rare, nevertheless reinforce the legitimacy of courts. Consequently, decisions that counter some governmental practices allow courts to confer legitimacy on other and sometimes similar governmental policies. Finally, I place the findings in a comparative context and outline a possible explanation for the circumstances under which landmark decisions are reached.
The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912
Authors: Feeley Malcolm M. , Little Deborah L.
Published: June 2006

This article challenges the prevailing scholarly belief that women have always been at the periphery of crime and argues that a central issue for those studying the criminal process should be the decline over time of women as criminal offenders and defendants. Our argument rests on examination of criminal cases in the Old Bailey in London for 1687–1912, as well as of data drawn from English and some American courts for this period. For much of the eighteenth century women made up a substantial portion (over 45 percent at times) of all those indicted for felony offenses, in sharp contrast to contemporary levels of less that 15 percent. We conclude that the change is “real”—it cannot be explained away as an artifact of selective reporting, shifting jurisdiction, short-lived idiosyncratic enforcement policies, etc. We argue that these changes parallel and may be explained by significant shifts in the roles accorded women in the economy, the family, and society, and we conclude that the vanishing female in the criminal process may reflect a shift to more private forms of social control brought on by shifting social attitudes and the rise of industrialism.
Doing Business: The Management of Uncertainty in Lawyers' Work
Authors: Flood John
Published: June 2006

Apparently naive, but in fact not, is the question: What do lawyers do? Many scholars assume the central role of the lawyer is that of the advocate, but among lawyers working in law firms advocacy consumes little of their time. Similarly, the term lawyer provides hardly any meaning in itself. The research presented here is based on a participant-observation study of a corporate law firm. The central thesis proposed, in the light of case studies of the selling of shopping mall and the arranging of a bank loan, is that business lawyers are engaged in managing uncertainty for both their clients and themselves. Managing uncertainty is accomplished through interaction rather than appeals to the law.
Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the South
Authors: de Sousa Santos Boaventura
Published: June 2006

We are entering a period of paradigmatic transition. From the paradigm of modernity we have come to a new paradigm which by now can only be defined inadequately. The inevitability of such inadequacy lends to the name of postmodernity its grain of truth. Periods of paradigmatic transition are periods of fierce competition among rival epistemologies and knowledges. They are, therefore, periods of radical thinking—both deconstructive and reconstructive thinking. When viewed from the old outgoing paradigm, they are periods of unthinking or of utopia. When viewed from the new, incoming paradigm, they are periods of temporary and fragile scaffoldings, emergent ruins sustaining nothing but themselves, witnessing nothing but the future. In periods of paradigmatic transition, all competing knowledges reveal themselves as rhetorical in nature, bundles of arguments and of premises of argumentation which circulate inside rhetorical audiences. Indeed, what distinguishes the audiences are the specific arguments and premises of argumentation that they consider valid and convincing or persuasive. In the specific paradigmatic transition we are now entering, any given discipline, be it sociology of law or archeology, tends to be constituted by a larger or smaller number of rival rhetorical audiences. The level of real communication among them is very low and whatever they do in common—books, journals, and conferences—has much more to do with the dominant institutional production of knowledge than with the knowledge produced. In the early stages of the paradigmatic transition, such as the one we are in now, the most fundamental cleavage is between the audiences that deny the very existence of the paradigmatic transition—these we may call the subparadigmatic audiences—and the audiences that assume the existence of such transition. The latter I call the paradigmatic audiences. I would imagine that in this room we have both types of audiences. My argument, being a paradigmatic one, will no doubt be unequally convincing for the different audiences present here today; as such, it will contribute to confirming the different audiences in their differences.
A Prophecy of Possibility: Metaphorical Explorations of Postmodern Legal Subjectivity
Authors: Sarat Austin
Published: June 2006

Pleasure precedes business. The child at play is practicing for life's responsibilities. Young impalas play at fencing with one another, thrusting and parrying. Art for art's sake was the main avenue … to ancient technological breakthroughs. Such also is the way of metaphor: it flourishes in playful prose and high poetic art, but it is also vital at the growing edges of science and philosophy.

—W. V. Quine (1979)

What is truth? A moving army of metaphors, metonymies and anthropomorphisms, in short a summa of human relationships that are being poetically and rhetorically sublimated, transposed, and beautified until, after long and repeated use, a people considers them as solid, canonical, and unavoidable. Truths are illusions whose illusory nature has been forgotten, metaphors that have been used up and have lost their imprint and that now operate as mere metal, no longer as coins.

—Nietzsche (1956)
Dueling Histories: Charles Fairman and William Crosskey Reconstruct “Original Understanding”
Authors: Brandwein Pamela
Published: June 2006

Historiography and epistemology are two subjects not often brought together in sociolegal studies. This article takes reconstructions of legal history as a subject of sociological investigation. The institutional “acceptability” of any historical representation is a complex social achievement since there are no objective criteria for verifying historical accounts. I juxtapose two competing reconstructions of Fourteenth Amendment history, by legal scholars Charles Fairman and William Crosskey, and examine how both reconstructions took place with reference to preexisting interpretive frameworks. I also examine the social and institutional settings in which these histories interacted and competed for credibility. The Fairman/Crosskey dispute served to socialize future participants in Fourteenth Amendment debate. With the Fairman/Crosskey exchanges, battle lines were drawn and topics of debate were established.
Litigation as a Local Political Resource: Courts in Controversies over Land Use in France, Germany, and the United States
Authors: Sellers Jefferey M.
Published: June 2006

In western Europe as well as in the United States, litigation often operates as a means of political contestation. This article draws on a study of land use disputes in similar U.S., French, and west German metropolitan areas to analyze cross-national differences in the way local political actors employ courts. More an extension of pluralist policymaking patterns in the United States, political litigation in the European settings occurs as part of starker challenges to corporatist and statist patterns. The contrast between centralized and federal governmental arrangements helps to explain why the political consequences of litigation in the French and the German settings also differ.
The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy
Authors: Teubner Gunther
Published: June 2006

The article connects two strands of the recent sociolegal debate: (1) the empirical discovery of new forms of spontaneous law in the course of globalization, and (2) the emergence of deconstructive theories of law that undermine the law's hierarchy. The article puts forward the thesis that law's hierarchy has successfully resisted all old and new attempts at its deconstruction; it breaks, however, under the pressures of globalization that produced a global law without the state, as self-created law of global society that has no institutionalized support whatsoever in international politics and public international law. Consequendy, the article criticizes deconstructive theories for their lack of autological analysis. These theories do not take into account the historical conditions of deconstruction. Accordingly, deconstructive analysis of law would have to look for new legal distinctions that are plausible under the new conditions of a doubly fragmented global society. The article sketches the contours of an emerging polycontextural law.
Men's Violence, Victim Advocacy, and Feminist Redress
Authors: Daly Kathleen
Published: June 2006

Stuart Scheingold, Toska Olson, and Jana Pershing (1994) draw from interviews with 15 people, including 5 leaders of victim advocacy organizations and 7 members of the state legislature, to show how a punitive ethos played itself out in legislation to control sexual violence. The lesson learned from Washington State's Community Protection Act (CPA) of 1989 is that members of victim advocacy organizations and grassroots social movements may practice a conservative law-and-order politics toward crime and justice. Scheingold et al. place their study within the terms of a debate, which they say has two sides. On one side are “republican and some feminist criminologists,” who “are sympathetic to victim advocacy because they see victims as natural spokespersons for republican/feminist values and policies” (p. 730). The other side contains liberals of various types, “including civil libertarians, just desert theorists, and others not readily identifiable with any general theory” (p. 734), “who see victim advocacy and/or republican criminology as a threat to the integrity of the criminal process” (p. 730). The authors conclude that while the Washington State victim advocates were both active players and pawns of politicians, “the net effect of victim advocacy is … substantially problematic for republican/feminist values and for sound crime control policy as well” (p. 731).
The Infrastructure for Avoiding Civil Litigation: Comparing Cultures of Legal Behavior in The Netherlands and West Germany
Authors: Blankenburg Erhard
Published: June 2006

At first sight, the vastly different litigation frequencies in West Germany and The Netherlands present a riddle, as both countries have a legal system tradition in common and their baseline of potentially litigious conflicts is very much alike. This study tries to find an explanation by disaggregating various kinds of civil procedures. The distinguishing variables are found in the presence or absence of institutions filtering disputes at the pretrial stage. While in The Netherlands plaintiffs are offered a bigger set of alternatives for dispute resolution, the German court system, being very cost efficient, attracts masses of petty claims. Thus, it is unnecessary to look for attitudinal differences or even different “litigation mentalities” in the neighboring cultures. The institutional infrastructure is sufficient to explain why it is rational for Germans to use the courts and for the Dutch to avoid them.
Self-Presentation and Legal Socialization in Society: Available Messages about Personal Tax Audits
Authors: Stalans Loretta J. , Kinsey Karyl A.
Published: June 2006

Research has shown that direct experience of legal authorities' unfairness or rudeness lowers unfairly treated individuals' support for legal authorities in general and fosters noncompliance with laws. Many people, however, get information about legal authorities and institutions indirectly through conversations with others. To highlight the possible ripple effects of specific enforcement contacts on the general population's support for authorities, we compare what taxpayers said happened in their tax audit interviews with what they tell other members of their social network. Because people are most concerned about others' image of them, this motivation for communication often weakens a bias toward negative messages. Our findings demonstrate that messages about fairness of decisionmaking, favorability of outcomes, and dignity more closely approximate the distribution of the sample of audited taxpayers' perceptions. We found support, however, for a bias toward negative messages in two situations: messages about instrumental quality and in the rare circumstance when taxpayers received undignified treatment and favorable outcomes. In this circumstance, the message does not have connotations for one's own image. We discuss the implications for legal socialization and the reservoir of societal support for legal authorities and institutions.
Through a Green Lens: The Construction of Customary Environmental Law and Community in Indonesia's Maluku Islands
Authors: Zerner Charles
Published: June 2006

In the Maluku Islands of Eastern Indonesia, a center of global diversity in coral reef systems and the historic center of trade in cloves and other spices, tenure practices known as sasi have flourished for at least a century. This article analyzes changes in the ways Dutch colonial officials, Indonesian government officials, and environmental NGOs have interpreted Moluccan customary law and local institutions. Dutch colonial accounts of sasi, a generic name for a historic family of institutions, laws, and ritual practices that regulated access to fields, reefs, and rivers, suggest that sasi was a synthetic, highly variable body of practices linked to religious beliefs and local cultural ideas of nature. During the past two decades, as international and national conservation discourses have proliferated and a movement has developed to support indigenous Indonesian cultural communities, Indonesian NGOs and the Ministry of the Environment have promoted, and largely created, images of sasi as an environmental institution and body of customary law promoting sustainable development, conservation, and social equity. This article focuses on how sasi has been continuously reinterpreted by a variety of actors, following the trajectory of changing institutional interests and images.
A New Social Constructionism for Sociolegal Studies
Authors: Mertz Elizabeth
Published: June 2006

In this essay I make a case for what I call a “moderate” and also an “empirically grounded” social constructionist approach, which I conceptualize as a further development of numerous strands of a longstanding and rich tradition. I argue that this approach, one I see as emergent now in cross-disciplinary work like that presented in this Symposium, can help to move scholarly discourse past the impasses posed by dichotomous, either/or thinking about law, society, and epistemology. To orient those unfamiliar with the pertinent scholarship, I begin with a sketch of the intellectual traditions and issues involved.
Rights, Remembrance, and the Reconciliation of Difference
Authors: Engel David M. , Munger Frank W.
Published: June 2006

Rights in American society present a paradox—critics increasingly assert that proliferation of rights is undermining Americans' sense of community, yet scholars continue to document Americans' reluctance to assert formal legal rights. We explore the meaning of rights in American society by describing the intersection between the evolving civil rights of a previously excluded minority, culminating in the Americans with Disabilities Act of 1990, and the personal histories of two individuals who might potentially invoke or benefit from such rights. Tracing the life stories of “Sara Lane” and “Jill Golding” from childhood through adolescence to adulthood and employment, we relate the everyday relevance or irrelevance of law to important elements of the reconstructed past—the development of self-concept and of one's place in relation to the social mainstream. The article, which is part of a larger project involving a more broadly based interview sample of adults with disabilities, analyzes life stories to critique familiar assumptions about the perceived conflict between rights and social relationships and about the mobilization of law. It also offers an innovative approach to the study of law and legal consciousness by involving Sara Lane and Jill Golding in the analysis of successive drafts and by including their reactions to what the authors have written.
On the Struggle for Judicial Supremacy
Authors: Knight Jack , Epstein Lee
Published: June 2006

Given that democratization is an ongoing, dynamic process, what explains the emergence and maintenance of some types of political institutions and the decline of others? The answer, we argue, lies not in the intentional design of long-run constitutional principles but rather in the short-run strategic choices of political actors. While many would agree with this vision as applied to legislative or executive institutions, we claim that it is equally applicable to courts. After laying out our argument—a theory of institutional emergence and maintenance—in some detail, we test it by applying game theory to a critical moment in American history: the defining sequence of events for American presidential-court relations that played out between President Thomas Jefferson and Chief Justice John Marshall in the early 1800s. Our analysis allows us to assess factors fundamental to most explanations of the Jefferson-Marshall conflict: the political and institutional preferences of the actors (especially Jefferson's preferences over judicial review) and the larger political environment in which the conflict took place. It also provides important insights into how we might study other interinstitutional interactions, be they of historical moment or of future concern.
Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking
Authors: Frohmann Lisa
Published: June 2006

Using ethnographic data, I examine prosecutors' discourse on case convictability (the likelihood of a guilty verdict at trial) in sexual assault cases. The analysis shows how prosecutors construct discordant locales through their categorization of victims, defendants, jurors, and their communities and the location of crime incidents. It demonstrates how prosecutors use discordant locales to justify case rejection. By ascribing stereotypical characteristics of a neighborhood to victims, defendants, and jurors, prosecutors construct distinct groups with different cultures who live in geographically separate spaces and have different schemes through which they interpret the everyday world. To construct discordant locale categorizations, prosecutors employ race, class, and gender imagery. Through this imagery they construct multiple normative standards of moral character of persons and of places. I argue that through the categorizations of place as discordant locales, prosecutors inadvertently reproduce race, class, and gender ideologies in legal decisionmaking. I conclude with policy suggestions for expanding and equalizing citizens' access to justice.
Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes
Authors: Dezalay Yves , Garth Bryant
Published: June 2006

Over the past 20 years, international commercial arbitration has been transformed and institutionalized as the leading contractual method for the resolution of transnational commercial disputes. It has become an important institution of the growing international market. Although the process is far from unidirectional, this work of social construction can be described as a rationalization in the Weberian sense and also as an “Americanization” that has permitted U.S. litigators to shape the rules to favor their adversarial skills and approaches. An informal justice system has come increasingly to resemble “offshore litigation.”

Drawing on Bourdieu's analytical tool of the legal “field” and, in particular, using the notion of an “international legal field,” this case study reveals how the continuing competition for business and for legitimacy—between civil law and common law, “grand old men” and “technocrats,” academics and practitioners—constructs and transforms the system of (international private) justice. As is true generally with respect to law, the details of the competition serve to build the careers of practitioners, to develop the area of practice, and to produce and legitimate the relevant “law.”
Dhamma in Dispute: The Interactions of Religion and Law in Thailand
Authors: Reynolds Frank E.
Published: June 2006

This article explores the ways in which law and religion overlap and interact in Thailand. The imaginative-symbolic dimensions of Thai law and religion share many common elements, which have been apparent in the discourse of national politics throughout the 20th century and in the discourse associated with conflict, dissent, and reform in contemporary Thailand. With the emergence of a constitutional monarchy in the 1930s, traditional Buddhist concepts of cosmic law and religion were fused with new concepts of political administration and legal authority. A new “civic religion” emerged, resting on the threefold formula of nation, religion, and kingship. This evolving civic religious tradition has provided a framework for both the imaginative-symbolic and the more practical, action-oriented discourses that characterize modern Thai legal culture.
Adolescent Mothers and the Criminal Behavior of Their Children
Authors: Nagin Daniel S. , Pogarsky Greg , Farrington David P.
Published: June 2006

There is little research on the relationship between adolescent motherhood and the criminality of the children. Data from the Cambridge Study in Delinquent Development reveals that children from large families who were born to women who began childbearing early are at greatest risk of criminality. Three alternative explanations for this relationship are explored—the life course-immaturity account, the persistent poor parenting-role model account, and the diminished resources account. We find no evidence supporting the first account, but in various ways the analysis provides credible support for the latter two accounts, which themselves are not mutually exclusive.