bluuebunny/crossref_metadata_2025 huggingface dataset:
Social Theory and Law: The Significance of Stuart Henry
Authors: Itzkowitz Gary
Published: June 2006

The interrelationship between the formal structures of law and the informal social control structures originating at the private and community level (private justice) poses difficult questions for lawyers and sociologists alike. For the legal profession the question concerns the impact of law on social institutions, the community, and on the individual. For the sociologist the inverse question must also be included; that is, what is the impact of various sociopolitical levels of society on the formation of law?
The Line Between History and Casenote
Authors: Schlegel John Henry
Published: June 2006

When Kermit requested that I write an essay for this Review, an ambiguity in his letter led me to inquire whether he wanted me to write about legal history written in the twentieth century or legal history written of the twentieth century. Unraveling that ambiguity had the queer effect of deflecting my attention from the fact that I was in the process of agreeing to write about a subject that seemed to me to be close to nonexistent. To check out that perception, I sent my super-diligent research assistant out to search the relevant periodical literature published during the last fifteen years. A bit to my surprise he came back with a longer bibliography than I had expected and the observation, “I had a difficult time deciding where to draw the line between history and casenote.” It seems to me that this observation just about sums up the problem and perhaps it is important to discuss that problem as we look at this largely nonexistent field in the hope that by the time there is a field there may no longer be a problem.
Chronicling a Movement for Civil Rights
Authors: Ellis James W.
Published: June 2006

The history of the modern movement for civil rights for people with mental disabilities is chronicled in the three editions of the American Bar Foundation's treatise, The Mentally Disabled and the Law. Each presents a snapshot of the status of the law at the time of its publication. Taken together, they provide an overview of the extent of the movement's successes and the speed with which they have been attained in recent years. The first edition, published in 1961, describes the law as it had developed during the years following World War II, and argues that it has been “an opportune time to re-evaluate the law” (Lindman and McIntyre, 1961: 14) and to bring it into conformity with modern scientific understanding of the nature of mental disability and contemporary public opinion concerning individual rights (Ibid.). The second edition, published in 1971, recounts the changes that had taken place in the 1960s, primarily the increasing federal activity in the field of mental disability, as well as scattered developments in state case law and legislation. But its authors again conclude that “[t]he factors conducive to a thorough examination and réévaluation of the laws as they relate to the rights of the mentally disabled exist today to a greater extent than ever before” (Brakel and Rock, 1971: 8).
Opening the Time Capsule: A Progress Report on Studies of Courts Over Time
Authors: Friedman Lawrence M.
Published: June 2006

This essay traces the rise of longitudinal studies of courts. In the United States, the rise of a sociolegal school of history (the “Wisconsin school”) was the immediate stimulus. Longitudinal studies, in Europe and the United States, explored the relationship between law and the economy; they tended to find an inverse relationship. But more recent findings suggest some reversal of this trend. Changes in the nature of business relationships have stimulated increases in some forms of major business litigation. Moreover, in modern legal culture, freedom is conceived of in substantive terms; and the courts appear more and more to be the place where true justice can be found.
Civil Litigation and Modernization: The Work of the Municipal Courts of Bremen, Germany, in Five Centuries, 1549–1984
Authors: Wollschläger Christian
Published: June 2006

The article presents preliminary findings of a caseload study which covers preindustrial and industrial periods of judicial activity in Bremen, Germany. It discusses the historical comparability of the data and opposes evolutionary approaches in longitudinal research. Waves and exponential trends are examined as stable elements in the time series. Five historical periods of different growth patterns are distinguished. Higher litigation rates of previous times lead to the conclusion that modern society handles far more potential legal conflict with relatively less litigation than did society in earlier periods.
Caseload Dynamics and the Nature of Change: The Civil Business of Trial Courts in four Illinois Counties
Authors: Daniels Stephen
Published: June 2006

Using data from trial courts in four Illinois counties for the period 1870 to 1960, this article explores the utility of a model for explaining patterns and changes in caseload dynamics. The model sees patterns and changes in caseload dynamics as the result of three sets of factors: long-term local environmental trends; short-term fluctuations in local environmental conditions; and institutional contraints. It assumes that change is essentially a nonlinear and contingent process, these characteristics of change being the consequences of the sensitivity of caseload dynamics to the initial environmental conditions of a locale and the infrequent and varied socioeconomic transitions that different locales experience. Such transitions, the article argues, are the key to identifying the underlying similarities beneath the apparent diversity in caseload dynamics among different sites.
Trial Courts: An Economic Perspective
Authors: Cooter Robert D. , Rubinfeld Daniel L.
Published: June 2006

This article describes economic research on models of legal disputes. Concepts such as rational choice and static equilibrium are often used inaccurately in the noneconomic research presented in this issue. This article critiques the longitudinal studies, illustrating a number of problems of conceptualization and data analysis. Finally, the authors consider normative models of dispute resolution and the evolution and effects of judge-made law.
The International Comparison of Court Caseloads: The Experience of the European Working Group
Authors: Ietswaart Heleen F. P.
Published: June 2006

Drawing on the experience of the European working group for the comparative study of litigation patterns, the author assesses the possibilities and limits of longitudinal international comparisons. The major challenge is ensuring that what is compared is comparable. Overall national litigation data are not comparable as such; official statistics raise more questions than they answer. The problems lie in the (socio)legal categories used in various countries, consistency of registration over time, and differences in legal procedures. The author suggests that a more fruitful line of inquiry begins with sociolegal categories of problems (e.g., housing, debt) and searches for litigation patterns. Thus disaggregating litigation data has the additional advantage of allowing the use of problem-specific baselines, which makes for greater comparability of data.
The Uses of History: Language, Ideology, and Law in The United States and South Africa
Authors: Mertz Elizabeth
Published: June 2006

This study compares the language in which South African and United States law represents the histories of indigenous peoples. South African political and legal language has linked denial of indigenous peoples' history with denial of rights to property. The language of the law in the United States recognizes prior history and prior possessory claims to land, although in the past this recognition did not stop the decimation of Native Americans. The contrast between the uses of history in the laws of two nations reveals how ideologies, language, and the law are intertwined in the determination of indigenous peoples' property rights.
Ideological Production: The Making of Community Mediation
Authors: Harrington Christine B. , Engle Merry Sally
Published: June 2006

Through an analysis of the structure of the community mediation movement in the United States and an ethnography of the practices of mediators in local programs, this paper examines how community mediation is made, and how it is ideologically constituted. The ideology of community mediation is produced through an interplay among three ideological projects or visions of community mediation and organizational models, and by the selection and differential use of mediators to handle cases. We argue that ideologies are formed through the mobilization of symbolic resources by groups promoting different projects. Central to the production of mediation ideology is a struggle over the symbolic resources of community justice and consensual justice. Although various groups propose differing conceptions of community justice, they share a similar commitment to consensual justice, and this similarity is produced through reinterpretations of the same symbols. The ambiguities in community mediation are, it appears, being overtaken by consensus on the nature of the mediation process itself.
The Public/Private Distinction: Approaches to the Critique of Legal Ideology
Authors: Turkel Gerald
Published: June 2006

This article reconstructs Marx's approaches to the critique of the public/private distinction in law and analyzes contemporary approaches to public/private distinctions in legal studies. Specifically, I focus on three approaches to critiquing the public/private distinction as legal ideology. These approaches are identified in works by Balbus, Klare, and Kennedy. They have affinities with Marx's analyses and demonstrate the incoherence, mystification, and consequences of public/private distinctions in legal discourse and practice. The article demonstrates that the ideological critique of the public/private distinction is characterized by alternative methods and substantive issues. These approaches, I argue, differ because they are concerned with distinctive objectives of inquiry, different arenas of social action, and have distinct purposes.
The Gallows, the Mob, and The Vote: Lethal Sanctioning of Blacks in North Carolina and Georgia, 1882 to 1930
Authors: Beck E. M. , Massey James L. , Tolnay Stewart E.
Published: June 2006

This paper examines the relationship between lynchings and executions of blacks in North Carolina and Georgia between 1882 and 1930 as well as before and after the political disenfranchisement of blacks in both states. The findings are used to assess two competing models of the relationship between these different types of lethal sanctioning. No supporting evidence is found for a “substitution model,” which predicts a negative relationship between lynchings and executions. The evidence for Georgia, especially for the pre-disenfranchisement period, does offer moderate support for the “conflict model,” which hypothesizes a positive association between lynchings and executions. Although the direction of the relationship between lynchings and executions was insensitive to disenfranchisement in both states, our analysis reveals that total lethal sanctioning (lynchings plus executions) did decline in Georgia after several restrictive voting statutes were implemented. No similar effect is observed for North Carolina.
Deciding WHO Gets in: Decisionmaking by Immigration Inspectors
Authors: Gilboy Janet A.
Published: June 2006

This article examines the work of immigration inspectors—the front-line gatekeepers at ports of entry to the United States who decide whether foreign nationals should be admitted to the country. Described are the shared categories primary inspectors use that help define travelers as referable or nonreferable for further intensive questioning. The study discusses how these judgments arise in the course of doing a distinctive organizational task that fundamentally shapes their character. The study explores the ways in which the nature of categorization and practical decisionmaking in the setting are shaped by agency concerns and the responsibilities and problems of this set of social control agents.
Goose Bumps and “The Search for Signs of Intelligent Life” in Sociolegal Studies: After Twenty-Five Years
Authors: Levine Felice J.
Published: June 2006

This article focuses on the emergence of sociolegal studies over the past twenty-five years through an analysis of the development of the Law and Society Association. The paper takes the view that this scholarly field is best understood from a broad-based, multidisciplinary perspective that includes, but does not privilege, legal scholarship. Also, the article argues that sociolegal studies has been pluralistic, self-reflective, and dynamic since its inception and that current critiques must be examined in light of this past. Three areas of contemporary concern—the centrality of law; the impact of policy, politics, and reform motives; and the nature of science—are assessed in terms of sociolegal studies specifically and social science inquiry more generally. Opportunities for growth and change are considered.
Connecting Litigation Levels and Legal Mobilization: Explaining Interstate Variation in Employment Civil Rights Litigation
Authors: Epp Charles R.
Published: June 2006

Social science research on civil litigation has concentrated either on explaining variations in aggregate litigation levels or on explaining individual-level mobilization of the law. This article attempts to connect the two approaches by analyzing variations in state-level employment civil rights litigation within a framework based on individual-legal decisionmaking. Because the structure of our court system forces individuals to consider the costs and benefits of pursuing litigation, the model developed here incorporates factors that would affect individuals' cost/benefit decisionmaking with regard to civil rights litigation. The multivariate regression model based on this framework explains, with increasing strength, much of the state-level variation in civil rights litigation levels for the years 1970, 1975, and 1980. Although the framework has certain limitations, it may serve to enhance our understanding of aggregate litigation levels.
Cultural Capital, Gender, and the Structural Transformation of Legal Practice
Authors: Hagan John , Zatz Marjorie , Arnold Bruce , Kay Fiona
Published: June 2006

In this article we clarify and modify Marxian and postindustrial predictions about the structural transformation of the legal profession, especially as they relate to gender differences in the law firm. In doing so, we utilize the concept of cultural capital and highlight the changing gender stratification of legal practice. We find that there is a growing centralization and concentration of cultural capital in law firms, so that both men and women are losing their proportionate shares of partnership positions in the profession, but with women losing more than men. The greatest growth in the profession has been at the middle and lower levels of larger firms, and women are especially likely to be represented in these locations. Women experience their worst partnership prospects in smaller firms, which suggests that male-dominated smaller firms are especially resistant to modifying the work roles assumed by men and women in the profession. We conclude that gender stratification is an important part of the structural transformation of legal practice.
Gazing into the Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?
Authors: Marquart James W. , Ekland-Olson Sheldon , Sorensen Jonathan R.
Published: June 2006

The Texas post-Furman death penalty statute restricts capital punishment to a limited category of murders. If the defendant is found guilty of one of these crimes, the jury must address two and sometimes three questions in the punishment phase of the trial. Affirmative answers to the questions by all jurors result in an automatic death sentence. A “no” answer to any question results in an automatic life sentence. One of the three questions is whether the defendant presents a continuing violent threat to society. From 1974 to 1988, niney-two capital murderers had their sentences commuted to life imprisonment. These commutations allow a “natural experiment” to assess the predictions made by jurors that these individuals would present a future violent threat to society. Patterns of institutional and post-release behavior of this group were compared to similar patterns for defendants convicted of capital murder who were not predicted to be dangerous and who received life imprisonment over the same fifteen-year period. We found that although most capital offenders were model inmates, two commuted capital prisoners committed second murders, one while in prison and the other while in the community. We conclude with a discussion of the validity of current death statutes that require jurors to predict future dangerousness.
Counties in Court: Interorganizational Adaptations to Jail Litigation in California
Authors: Welsh Wayne N. , Pontell Henry N.
Published: June 2006

Criminal justice systems have been described as fragmented and decentralized “nonsystems,” but sudden changes in the environments of criminal justice organizations may affect the loose coupling that normally characterizes such agencies. Court orders against county jails create pressures to tighten the loose coupling among local organizational subsystems: the jail, law enforcement, courts, probation, and county government. Using interviews with key officials, court documents, and other archival data, we examined changes in interorganizational relations in three California counties under court orders to reform local jails. While court orders eventually resulted in tighter coupling of the subsystems and more proactive interagency responses, the more reactive mode of response characteristic of loosely coupled subsystems initially led to increased interagency conflict. Adaptations were influenced by the legal, political, and organizational environments of each jurisdiction.
Rape Law Reform and Instrumental Change in Six Urban Jurisdictions
Authors: Horney Julie , Spohn Cassia
Published: June 2006

Concerns about the treatment of rape victims and attrition in rape cases prompted a nationwide movement to reform state rape laws. In this study we evaluate the impact of rape law reforms on reports of rape and the processing of rape cases in six urban jurisdictions—Detroit, Chicago, Philadelphia, Atlanta, Houston, and Washington, D.C. Our results strongly suggest that the ability of rape reform legislation to affect case outcomes is limited. Time-series analyses revealed that predicted results were found in only one of the six jurisdictions, and there the results were limited.
Law Reform by Courts, Legislatures, and Commissions Following Empirical Research on Jury Instructions
Authors: Tanford J. Alexander
Published: June 2006

Empirical research demonstrates that jurors have difficulty understanding and following traditional instructions about the law. The social science literature recommends several procedural reforms, including giving important instructions at the start of the trial and providing jurors with written instructions. This article examines changes in the law following the publication of this social science research, comparing courts, legislatures and rule-making commissions. Analysis reveals that although all three institutions are dominated by lawyers, they have acted differently. Commissions have made substantial changes in the law consistent with the recommendations of social scientists, legislatures have made few changes, and courts have changed case law in the opposite direction, suggesting support for a theory of institutional context.
A New Conception of Law?
Authors: Constable Marianne
Published: June 2006

In his address to the 1995 Law and Society Association, Boaventura de Sousa Santos argued that times are changing and that “we”—the law and society audience, among others—must use “the imagination to explore new modes of human possibility and styles of will and to oppose the necessity of what exists on behalf of something radically better that is worth fighting for and to which humanity is fully entitled” (Santos 1995:573). Admirable sentiments, on which Santos elaborates via three suggestive metaphors introduced to help “reinvent maps of social emancipation and subjectivities with the capacity and desire for using them” (ibid.).
World Legal Science, Paradigmatic Competitions, and Empirical Research
Authors: Garth Bryant
Published: June 2006

Even in this “adapted and simplified” package, Boa Santos (1995) makes a powerful case for a new legal theory able to survive and prosper in “the forthcoming paradigmatic competitions” (p. 574). I have not yet read the extended argument in Santos's book, but I am already persuaded that his cosmopolitan learning and encompassing synthesis has the power to inform and challenge legal scholars in all parts of the globe. His argument is admittedly utopian, and he is well aware of the possibilities that what he offers will require some remarkable societal changes—and can, in any event, be “coopted.” But that does not detract from the power of the vision. Rather than comment on the vision itself, however, I will use his analysis to focus on a slightly different research agenda and theoretical perspective. I think the approach discussed in this comment is complementary, but it requires that I begin with a disagreement about the framing of the issue.
Ballad of a Thin Man: Sociolegal Studies in a Time of Postmodern Crisis
Authors: Simon Jonathan
Published: June 2006

Because something is happening here but you don't know what it is Do you, Mr. Jones?

—Bob Dylan

What happens when the occupiers abandon the city but the forces of liberation fail to show up? What should we do when the rebels lose the people in a thicket of doctrine and become terrorists, but the empire can't imagine how to strike back except with more terror directed at the same people?
The Traveling Show Menace: Contested Regulation in Turn-of-the-Century Ontario
Authors: Loo Tina , Strange Carolyn
Published: June 2006

The authors apply recent work on regulation to anthropological analyses of community. In Ontario, Canada, the Provincial Police, community leaders, and the traveling show industry itself regulated shows, albeit to different ends and through different means. For rural Ontarians, invoking the law to combat crooked American carnivals articulated and reinforced local and national identity. Distinctions between insiders and outsiders were amplified because circus folk were quintessential others—itinerants and even “freaks.” Unlike most outsiders, however, carnies reveled in their difference and saw through the moral hypocrisy of regulation.
Brown v. Board of Education: An Empirical Reexamination of Its Effects on Federal District Courts
Authors: Sanders Francine
Published: June 2006

A resurgent debate in the field of judicial politics has been the controversy over which has the greatest effect in decisionmaking: legal or extralegal variables. This study applies the controversy to an arena in which a consistent answer has yet to be found: federal district court reception of the U.S. Supreme Court's 1954 Brown v. Board of Education decision. Anecdotal evidence has suggested that there was a great deal of variation in compliance, with southern district justices being substantially unwilling to apply the new precedent. Results found here, however, strongly suggest that the legal variable was in fact significant. Moreover, this variable was more important than region or type of case.
“Let Them Eat Cake”: Globalization, Postmodern Colonialism, and the Possibilities of Justice
Authors: Silbey Susan S.
Published: June 2006

This essay presents three accounts or narratives of globalization. Each narrative describes the triumph of a central character or institution (science, markets, law) against its challenges or enemies (ignorance, regulated or planned economies, human caprice and unreason). The stories convey moral tales about what justice might look like and how social relations might be justly organized and governed. I argue that under the dominant accounts of globalization, the dynamics of power are obscured so that social relations seem to be produced by invisible or natural forces. When the operation of power is masked, I argue, justice, and efforts to confine and regulate power, is made less probable. Law and society scholarship can contribute to a critique of globalization by continuing to identify the ways in which law and power are mutually implicated and embedded in social relations. Rather than describe current forms of international social exchange as globalization, a seemingly neutral terms, the essay urges scholars to identify the role of power by naming global social exchanges as “postmodern colonialism.”
Social, Cultural, and Temporal Dynamics of the AIDS Case Congregation: Early Years of the Epidemic
Authors: Drass Kriss A. , Musheno Michael , Gregware Peter R.
Published: June 2006

Studies of legal decisionmaking have focused traditionally on how social influences, particularly the relative social standing of competing parties, affect case outcomes. More recently, sociolegal scholars have directed their attention to the significance of cultural categories in shaping case-based decisionmaking. We here examine how both social and cultural factors shape judicial decisions and their meanings for a “congregation” of court cases precipitated by the AIDS epidemic in the United States. Our logistic regression analysis of the opinions of 181 AIDS-related cases decided in the early years of the epidemic (1983-89) finds that two social factors, the relative social standing of parties and the types of claims brought to the court, and two cultural factors, the court's use of negative AIDS metaphors and references to individual rights, are significantly related to case outcome. Finally, in line with Galanter's (1990) notion that case congregations have histories that involve development and change over time, our temporal analysis reveals the emergence of two case congregations and suggests how each serves to bolster the legitimacy of the judiciary amidst social crisis.
Constructing Virtual Justice in the Global Arena
Authors: Buchanan Ruth
Published: June 2006

This book by Yves Dezalay and Bryant Garth, both a major empirical and theoretical contribution, has arrived at a propitious time for law and society scholars. If our discipline is not in crisis, it is certainly in a period of transition. As “globalization” has monopolized the attention of policymakers, journalists, futurists, politicians, and the business elite, scholars in law and society have not been far behind. Meetings of the Law and Society Association have become notably more international in their objects, if to a lesser extent in membership and attendance. As our scholarship ventures with more regularity over, under, and beyond the boundaries of nation-states, we encounter new conceptual, methodological, and practical challenges, as well as the exacerbation of some more familiar difficulties. The work of Dezalay and Garth represents one of the most advanced and concerted efforts in our discipline to rise to this array of new (and old) challenges. The book's scope and ambitions are such that a reviewer is compelled to ask whether the authors have presented us with a new paradigm for research in sociology of law in the context of globalization. As I am only presumptuous enough to pose but not to answer that question, this review essay will document both the considerable promise and some possible limitations of the approach developed by Dezalay and Garth, in the hopes of using their work to spark a wider debate on the future of law and society scholarship in conditions of globalization.
Social Structure and Social Control: Building Theory
Authors: Liska Allen E.
Published: June 2006

Although always an integral part of sociology, the study of social control has waxed and waned. Originally, the concept was defined broadly as any structure, process, relationship, or act that contributes to the social order; indeed, the concepts of social order and control were indistinguishable. A consensus is now emerging that distinguishes social control from the social order it is meant to explain and that distinguishes among social control processes. One basic distinction is between processes of internal control or socialization and processes of external control. Recently, the study of social control is equated more with the latter than the former.
Back on Track: Asking and Answering the Right Questions
Authors: Turk Austin T.
Published: June 2006

Despite the obvious and repeated failures of biopsycho-criminologies, looking at and inside individuals for the causes of crime persists as the politically more tolerable and economically more rewarding (for grantsmen) alternative to the kind of theoretical and empirical work featured in this symposium. Instead of looking for what is wrong with people, these researchers are looking for what is wrong with society—and why. Once again the causal importance of contextual factors and social forces is being investigated and demonstrated. To theorists who have perceived and posited causal linkages among structured inequalities, social conflicts, and the definition as well as the occurrence of crimes, such research deserves the highest priority. These are indeed welcome contributions because they are asking the right questions. Now let us consider the answers they offer.
Origin Myths: Narratives of Authority, Resistance, Disability, and Law
Authors: Engel David M.
Published: June 2006

Origin stories are a distinctive form of narrative. In their account of how something “began to be,” such stories connect past and present, clarify the meanings of important events, reaffirm core norms and values, and assert particular understandings of social order and individual identity. The parents of children with disabilities tell strikingly similar origin stories about the day their child was first diagnosed. Such stories not only explore the meanings of a transformative event but also draw implicit connections between past encounters with medical specialists and present encounters with educational specialists as mandated by an important federal statute. This article, based on an ethnographic study of parents, children, and educators, traces the implicit references in the parents' origin myths to a set of key oppositions that reflect their experiences within the statutory framework of special education: cooperative versus unilateral decisionmaking, lay versus professional knowledge, and authority versus legal empowerment. The article also compares the ways in which law and myth address the conflicting perspectives of disability specialists and of the parents and children themselves.
Sentencing under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991–1992
Authors: Albonetti Celesta A.
Published: June 2006

The Sentencing Reform Act of 1984 mandated major restructuring of federal sentencing through specific sentencing guidelines. New sentencing guidelines developed by the United States Sentencing Commission and adopted in 1987 explicitly linked sentencing to “relevant conduct”—offense characteristics—and sought to abolish unwarranted sentence disparity. The guidelines substantially reduced judicial discretion and resulted in a criminalization and sentencing process that is largely prosecutor controlled. The author has generated hypotheses that relate defendant characteristics, guilty pleas, and departures from sentencing guidelines to sentence outcomes under the federal sentencing guidelines. She first examined the variables influencing sentence severity for the drug offenders who were sentenced in 1991–92. She then explored the interaction effects by estimating the tobit equation separately for three groups—black, white, and Hispanic defendants—to discover whether defendant's ethnicity conditions the effect of other defendant characteristics, guidelines-defined legally relevant variables, guilty pleas, and departures on sentence severity. Her analysis reveals that disparity in federal sentencing of drug offenders is linked not only to offense-related variables, as structured by the guidelines, but also to defendant characteristics such as ethnicity, gender, educational level, and noncitizenship, which under the guidelines are specified as legally irrelevant.
Persistent Facts and Compelling Norms: Liberal Capitalism, Democratic Socialism, and the Law
Authors: Abraham David
Published: June 2006

No living social theorist has worked harder or produced more on behalf of progress(ive) universalism and grand theory than Jürgen Habermas. Over the past 30 years, Habermas has sought to employ (and, in so doing, has enriched) a range of philosophies to advance the cause of human enlightenment and emancipation: Kantianism, the moral-developmental psychology of Kohlberg, the sociological Marxism of Offe and others of his own students, the philosophical pragmatism of Pearce, revived liberal Protestantism, the linguistics of Searle and others, and, now, even American legal liberalism. All these and more have been among the approaches he has tried and continues to try. As one of the world's leading public intellectuals, he has done battle with those who reject the emancipatory quest: whether they be German historians and politicians rewriting the past in the name of the nation and its elites or soî-disant postmodern radicals for whom particularity and irony are the only guarantors against oppressive rationalist homogenization and erasure.“
Between Power and Knowledge: Habermas, Foucault, and the Future of Legal Studies
Authors: Simon Jonathan
Published: June 2006

The forthcoming publication in English of Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy by Jürgen Habermas comes at a time when the nature and role of legal studies in the United States is being problematized. In both law schools and in the broader scientific and humanistic discussion of law (the totality of which, for the sake of brevity, I call legal studies), the consensus of more than a generation is breaking down, and a broad debate over what counts as interesting problems, adequate research, and useful results is emerging. This timing is central because Habermas has been a key figure in an important debate about the nature and prospects of social knowledge; a debate which has everything to do with the debate about the future of legal studies.
Place, Race, and Names: Layered Identities in United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor
Authors: Gooding Susan Staiger
Published: June 2006

While Native American treaty rights are one of the strongest instances of legally protected rights to social and cultural particularity in the United States and internationally, treaties and treaty litigation are also deeply racializing forms of legal discourse. This essay explores the dynamics between law and culture in the United States and the contradictory role played by federal Indian law in the transformation of indigenous identities by examining a current treaty rights case: United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor. The essay sets the Colvilles' litigation into its historical and legal context through an analysis of the relationship between the group names, of legal and nonlegal origin, by which Colvilles identify themselves and about which this litigation is centrally concerned. The Colville Tribes have consistently layered their social identities onto a map of permanent places through intra- and intergenerational naming formulas that are used to establish identity and to negotiate historical change and colonization. Federal Indian law has consistently constructed identity in its naming of indigenous groups by decontextualizing and remapping identity to a fixed map of race. Thus, federal legal discourse precludes a consideration of the very aspects of Colville identity that are central to the recognition of the claims put forth in their current litigation.
The Constituencies of Elite Urban Lawyers
Authors: Heinz John P. , Laumann Edward O. , Nelson Robert L. , Schnorr Paul S.
Published: June 2006

This study analyzes Chicago lawyers' networks of relationships with a selected set of prominent practitioners, drawing on 1994–95 interviews with 788 randomly selected respondents. Since the same technique was used 20 years earlier, the research sheds light on the extent to which the constituencies of elite Chicago lawyers have changed. The network is organized in three principal sectors—liberals, trial lawyers, and corporate lawyers. The structure implies a lack of integration within the bar. Minorities and women are now more widely dispersed across the segments of the network than they were in 1975, but they still have relatively few connections in the corporate sector of the bar.
Organization as Class Bias in Local Law Enforcement: Arson-for-Profit as a “Nonissue”
Authors: Goetz Barry
Published: June 2006

Here I discuss the response of local state agencies to the problem of arson-for-profit as a way to address the debates in the white-collar crime literature over the problem of class bias and the political autonomy of state institutions. Arson-for-profit makes for an especially compelling case because of the inherent organizational difficulties involved with controlling this crime and the relationship this crime has to the perpetuation of social inequality in urban neighborhoods. I argue that arson-for-profit has been relegated to a nonissue status by law enforcement. Although this can be explained largely in institutional terms, this outcome suggests a selectivity on the part of the state where arson enforcement is concerned. The findings have implications for our understandings of equity in law enforcement processes and the question of class bias in state processes.
Between Citizens and the Socialist State: The Negotiation of Legal Practice in Socialist Cuba
Authors: Michalowski Raymond J.
Published: June 2006

In 1973 the Cuban government abolished the private practice of law, replacing it with a system of law collectives known as bufetes colectivos. These law collectives were designed to provide low-cost legal services to the public in ways consistent with the ideology of a nonadversarial relationship between lawyers and the state. I examine both the relationship between the ideological and legal bases for the socialist practice of law in Cuba and the actual practice of law in one bufete colectivo. Using a combination of documentary and ethnographic information to reconstruct the day-to-day practice of law in the bufete colectivo, I examine the ways Cuban attorneys I observed sought to serve their clients' interests and to pursue their own professional goals within an ideological framework that stressed a nonadversarial model of lawyering. I give particular attention to criminal defense which, more than civil cases, often required attorneys to balance their clients' interests against the socialist ideal of nonadversarial lawyering. These attorneys, as intermediaries between citizens and the state, often found ways to utilize the formal framework of substantive and procedural laws to represent clients' interests despite an official ideology that emphasized nonadversarial lawyering.
Discrepancies between the Legal Code and Community Standards for Sex and Violence: An Empirical Challenge to Traditional Assumptions in Obscenity Law
Authors: Linz Daniel , Donnerstein Edward , Shafer Bradley J. , Land Kenneth C. , McCall Patricia L. , Graesser Arthur C.
Published: June 2006

Community standards for sexually explicit and violent depictions were measured using a representative sample of Western Tennessee residents. The residents were randomly assigned to view sexually explicit films charged in an obscenity case, violent materials, or control materials. The results showed that residents believe the sexually explicit films charged in the case did not appeal to a self-reported shameful, morbid, or unhealthy (prurient) interest in sex, and are not patently offensive. Community members indicated they would be substantially less accepting of the sexually explicit materials if they contained rape and bondage, and they showed virtually no acceptance of materials including children actors under the age of 18. Despite acceptance of sexually explicit films, there was no evidence that a majority of members of the community accepted violent “slasher” films. However, participants believed that the majority of others in the community tolerated the violent films they had viewed. These findings are discussed in light of an obscenity standard that presumes to take into account conventional morality and community opinion and the discrepancy between the obscenity code and community standards.
Legal Pluralism in the Philippines
Authors: Mastura Michael O.
Published: June 2006

Members of the Muslim minority in the Philippines have a distinctive legal culture whose rules and customs are grounded in Islam. To address this situation of legal pluralism, the government in 1977 enacted a Code of Muslim Personal Laws, which stands alongside the Philippines Family Code and Civil Code and officially recognizes the principle of plural legal regimes for at least one minority cultural and religious group within the general population. This article, written by a participant in the legislative process, explores the complexities of conceptualizing and drafting the Code. These complexities include the use of ethnographic descriptions of customary law within the Muslim community, the selection of rules from among the different schools of Islamic jurisprudence, and the harmonization of conflicts between the laws now applicable to Muslims and non-Muslims in the Philippines.
Women and the Family in Thailand in the Midst of Social Change
Authors: Vichit-Vadakan Juree
Published: June 2006

The author argues that in Thai society, woman- and family-related issues fall outside the direct domain of law. The family as a subsistence unit has been challenged by opportunities for wage labor in cities and towns. These opportunities, which have dispersed the family unit and eroded the authority of parents, have been particularly advantageous for women, who are seen as good workers, obedient and undemanding. Yet the power of the family as a psychological unit in Thailand has not altered. Likewise, although women have made gains in the market and the workplace, the possibility of achieving greater parity with men is hindered by the continued psychological force of the traditional “beauty culture,” their historical place as appendages to men, the cultural devaluation of manual work, and the religious definition of women as polluting. While the law is not irrelevant to these issues, they are neither determined by law nor are they likely to be altered by legal change.
Women and the Law: Significant Developments in Malaysia
Authors: Siraj Mehrun
Published: June 2006

The author discusses the complex ways in which a multiplicity of conflicting laws relevant to marriage and divorce have affected Malaysian women, both Muslim and non-Muslim. Further, it examines efforts to standardize statute and practice in these areas from the 1970s to the present. It focuses in particular on multiple marriage statutes in effect until 1970 for Chinese and Hindu Malays and on the Law Reform Act 1976 that attempted to regulate customary marriage practices for non-Muslims. It also examines the codification of Islamic family law in the 1980s as a way of clarifying the legal rights of Muslim women, focusing on the Kelantan Island Family Law Enactment 1983. It also describes political action by women in Malaysia to raise public awareness about domestic violence, to amend the Penal Code on matters of violence against women, and to establish a training program for police in rape investigation.
The Monk, the Hmong, the Forest, the Cabbage, Fire and Water: Incongruities in Northern Thailand Opium Replacement
Authors: Renard Ronald D.
Published: June 2006

Farmers in the Hmong village of Pa Kluai have replaced outlawed opium production with production of cabbages for urban markets. But because cabbage, unlike opium, requires the use of irrigation and pesticides, Thai farmers living downstream from Pa Kluai blame the Hmong for deforesting hills and polluting streams. Unsuccessful attempts to resolve the conflict between Hmong villagers and their lowland neighbors illustrate conflicts over what it means to be Thai, pointing to problems with the so-called three pillars of modern Thai society: race, religion, and king. Not only do the Hmong have different customs from Thai villagers but as swidden farmers who fell and farm upland forests, they come into conflict with Royal Forestry Department plans to preserve forests in watersheds. A Buddhist monk, dismayed by deforestation, has joined Thai villagers in protesting the cabbage-growing Hmong. And the king, who has tried to win the loyalty of highland groups, proposed that opium fields not be destroyed until viable replacement crops were available. So far, efforts to resolve the conflict by relocating the Hmong has failed, due to lack of a suitable alternative site.
Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace
Authors: Edelman Lauren B. , Erlanger Howard S. , Lande John
Published: June 2006

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend the reach of law, it may also undermine legal rights by deemphasizing and depoliticizing workplace discrimination.
Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality
Authors: Mondak Jeffery J.
Published: June 2006

Tyler and Rasinski (1991) challenge Gibson's (1989) contention that perceptions of procedural justice do not influence citizens' compliance with unpopular Supreme Court rulings. Noting a significant correlation between procedural justice and institutional legitimacy, Tyler and Rasinski argue that perceptions of procedural justice exert indirect influence on compliance. In response, Gibson (1991) questions Tyler and Rasinski's interpretation of the causal relationship linking institutional legitimacy and perceptions of procedural justice. Although both sides in this dispute offer persuasive discussion, neither can advance conclusive empirical evidence regarding the question of causality. This note presents a reexamination of the relationship between institutional legitimacy and procedural justice, with data drawn from an experiment designed specifically to address the question of causality. Results do not enable conclusive assessment of the Gibson hypothesis. However, in contrast to the Tyler-Rasinski hypothesis, no evidence is found supporting the contention that perceptions of procedural justice influence perceptions of institutional legitimacy.