bluuebunny/crossref_metadata_2025 huggingface dataset:
Indicators of Democracy in Professional Associations: Elite Recruitment, Turnover, and Decision Making in a Metropolitan Bar Association
Authors: Halliday Terence C. , Cappell Charles L.
Published: July 2006

This study considers political structure in bar associations with respect to one central problem: the tension between democracy and oligarchy in the internal politics of bar associations. Drawing on both theoretical and empirical material, the authors outline a series of indicators on which the degree of democracy and oligarchy in the organized bar may be measured and then apply these criteria to the Chicago Bar Association from 1950 through 1974. The authors briefly review writings on the political structure of bar associations in the United States and note relevant theoretical perspectives on the politics of voluntary associations. They distinguish several patterns of oligarchy and democracy and explore the consequences of certain trends for the Chicago Bar Association and other bar associations.
URLTA in Operation: The Ohio Experience
Authors: McIntyre Donald M.
Published: July 2006

This study is of the application of the Ohio Landlord and Tenant Act of 1974 in Cleveland to determine, within the limits of a brief exploratory study, how landlords and tenants have used the provisions of the act and the influence the act has had on the courts, the legal profession, and other institutions.
Speech and Crime
Authors: Greenawalt Kent
Published: July 2006

What kind of constitutional standards are applicable to communications likely to cause listeners to commit crimes? An examination of the tension between the highly protective approach to advocacy of crime taken by the Supreme Court inBrandenburg v. Ohioand the provisions in many criminal codes that make those who encourage criminal violations generally punishable for solicitation is followed by an analysis of the penological reasons for punishing crime-causing communications and of the relevance to such communications of the justifications for freedom of expression. After an account of the Supreme Court decisions dealing with this subject and a summary critical examination of interpretive approaches to the First Amendment, the author suggests standards for constitutional appraisal of prohibitions of communications that may cause crime. The central proposals are that most statements of fact and value be accorded virtually absolute protection; that dominantly situation-altering utterances, such as agreements, offers of agreement, and orders, be treated as outside the scope of First Amendment protection; and that simple encouragements to commit specific crimes, a kind of action-inducing communication, be granted a degree of protection that depends heavily on context, with criteria like those contained inBrandenburgapplicable to public ideological solicitation but with much less restrictive standards applicable to private solicitation.
Civil Discovery: Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses
Authors: Brazil Wayne D.
Published: July 2006

This article, the second in a three-part series based on interviews of 180 civil litigators in Chicago, describes lawyers’ assessments of the health of the discovery system and their views about the relative severity of several major problems and abuses that burden the discovery process. The data present a disturbing picture of the way the discovery system functions, especially in larger cases. Big case litigators are much unhappier with the current state of affairs in discovery than are their smaller case counterparts, and apparently for good reason. Tactical jockeying, evasive and dilatory practices, and various forms of harassment play major and costly roles in a high percentage of large lawsuits. And in at least one of every two big cases the discovery system fails to distribute the relevant information to all the parties. Perhaps the most dramatic evidence of disaffection with the current state of affairs in major litigation, however, is the widespread support the lawyers expressed for more aggressive judicial involvement in the process and for more frequent, telling use of sanctions to punish its abusers.

The third article in this series will report the lawyers’ reform proposals and will explore some of the implications of the data described here.
Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation
Authors: White James J.
Published: July 2006

Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper is to address the general question of truthfulness as that question is faced in Rule 4.2.
The Model Rules and Problems of Code Interpretation and Enforcement
Authors: Schneyer Theodore J.
Published: July 2006

Regulating lawyers is a three-part process. Rules must be formulated, they must be interpreted, and they must be enforced. Although those who formulate rules cannot be held responsible for their interpretation and enforcement, they can and should bring to their work an appreciation of the problems experienced in interpreting and enforcing earlier rules. One way to evaluate the proposed Model Rules of Professional Conduct is to ask whether they are properly responsive to problems that have arisen in interpreting and enforcing the Code of Professional Responsibility. That is the standard against which the Model Rules will be measured in this review. No effort, however, will be made to canvass all the problems that have been identified under the Code.
Giving and Getting Respect: Prestige and Stratification in a Legal Elite
Authors: Slovak Jeffrey S.
Published: July 2006

This article focuses on the corporate actor elite of Chicago's legal community—those attorneys who practice law with and for the major business, social, civic, and cultural organizations in the city. A continuation of a previous article, this article focuses on the differential allocation of professional respect made within that elite. Specifically, the discussion centers on the “second-class citizenship” in the legal community to which elite house counsel are relegated by elite partners in private law firms.

The first half of the article probes the social bases for that stigma. Examining a number of alternative explanations, it offers most support to one based on differences in the educational preparations of the respondents, to the effect that house counsel attended less prestigious law schools and performed less outstandingly at these schools than did firm partners at theirs. In the concluding half of the article, the effects of the stigma on elite social cohesion and commonality of purpose are examined. What emerges from this analysis is the finding that the house counsel stigma—strongly felt as it may be by all concerned—nevertheless generates no lasting lines of social cleavage within the corporate actor legal elite.
Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need?
Authors: Langbein John H.
Published: July 2006

For cases of serious crime a number of European countries employ a variant of the jury called the mixed court, in which laymen and professional judges sit together in a single panel that deliberates and decides on all issues of verdict and sentence. Trials in the mixed court proceed quite rapidly, in large measure because the mixed court dispenses with most of the time-consuming practices of jury control that characterize Anglo-American trial procedure. Consequently, the legal system can process all cases of serious crime to full trial. The present article describes the German mixed-court system and contrasts it with the American jury, asking to what extent the mixed court serves the purposes of the jury. The conclusion is that the mixed court serves the jury policies well, though not fully; and that it is a superior alternative to the indigenous nontrial devices—plea bargaining and bench trial—that have displaced the jury from routine American practice.
Sex Discrimination as “Actuarial Equality”: A Rejoinder to Kimball
Authors: Laycock Douglas , Sullivan Teresa A.
Published: July 2006

Debate continues over the Supreme Court's decision in City of Los Angeles Department of Water and Power v. Manhart. As most readers of this article already know, Manhart held illegal an annuity plan in which both sexes would receive equal periodic benefits after retirement although women made larger contributions while working. In collaboration with two colleagues, we defended the decision in another journal.* Although we tried to answer all of Manhart's critics, much of our attention was devoted to our colleague Spencer Kimball, who had published the most thorough and powerful of the attacks on Manhart. He has now published a reply.4 In the interests of having the main arguments on both sides summarized in the same journal, and of correcting misimpressions about the nature and extent of our argument, we offer this comment.
The A-9: A Program for Drafting Security Agreements Under Article 9 of the Uniform Commercial Code
Authors: Boyd William E. , Saxon Charles S.
Published: July 2006

This article describes and evaluates a computer program for drafting the security agreements and related documents required by Article 9 of the Uni- form Commercial Code to create and perfect security interests in consumer goods and equipment. The authors suggest that such computer applications have great promise and invite further such research.
Ability, Effort, and Performance Among First-Year Law Students at Brigham Young University
Authors: Kimball Edward L. , Farmer Larry C. , Monson D. Glade
Published: July 2006

This study considers the relationships between first-year law students' admission credentials, the amount of time they spend in study, and the grades they receive on examination. Findings include that there is a significant drop in effort during the first year, that while effort invested in study pays off in improved grades this effort is much less significant in explaining grades than is student ability as measured by LSAT and undergraduate grades, that students in the middle and bottom of the class are helped more by substantial study than are those in the top, that class attendance is much more valuable in raising grades than is equivalent time in other study, and that none of the various study techniques examined could be linked with major differences in results.
Improving Trial Advocacy: The Views of Trial Attorneys
Authors: Maddi Dorothy Linder
Published: July 2006

This article reports an exploratory study of trial attorneys' views of competent advocacy and the factors that affect such performance. It examines how attorneys account for variations in civil trial performance. These perceptions are then examined in relation to the major programs that have been proposed to remedy attorney incompetence.
The Verdict of Five out of Six Civil Jurors: Constitutional Problems
Authors: Zeisel Hans
Published: July 2006

A criminal jury of fewer than 6 members and a jury in which 5 out of 6 can find a verdict were held unconstitutional by the U.S. Supreme Court for failing to meet the requirements of due process as mandated by the Fourteenth Amendment. In four states—Michigan is one of them—the 5 out of 6 jury is the standard civil jury. Two questions are raised: first, whether such a jury violates the Michigan state constitution; second, whether such a 5 out of 6 civil jury violates the federal Constitutiton even though the civil jury is not protected by the Fourteenth Amendment.
Toward a New Standard of Attorney Disqualification
Authors: Lindgren James
Published: July 2006

In litigation, judges often disqualify attorneys who violate American Bar Association (ABA) disciplinary standards. Many practitioners, judges, and scholars are growing increasingly hostile to these disqualifications. In this article the author criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to ABA standards for withdrawal or ineligibility to accept a case. He argues that the remedy of disqualification should only rarely be used, even when it is clear that an ABA disciplinary standard has been violated. He criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to ABA standards for withdrawal or ineligibility to accept a case. And he canvasses the Second Circuit's development of a new standard of disqualification—the trial taint test—as well as some recent developments that undercut that standard.
Computer-aided Drafting of Legal Documents
Authors: Saxon Charles S.
Published: July 2006

Beginning with a survey of the application of computers to the law—how they are used now and how expected to be used in the future—this article presents a model of computerized document drafting systems and describes the capabilities such systems must have. A description of a template document that will specify the content, the form, and the rules for completing a class of documents is followed by a discussion identifying the facilities a document designer needs to specify such a template document, which in effect defines the language needed for the template design. A simple, easily implemented template drafting language (TDL) and a prototype software system (ADD) that can assemble documents drafted in this language have been designed and used to create security agreements drafted in accordance with Article 9 of the Uniform Commercial Code.
Causes of Career-relevant Interest Changes Among First-Year Law Students: Some Research Data
Authors: Hedegard James M.
Published: July 2006

The third report in a study of career-relevant changes in interests, attitudes, and personality characteristics among first-year law students at Brigham Young University, this article examines the impacts of five kinds of possible causes of interest changes. The author elaborates what it means to say that a career-relevant interest has “changed” in light of changes due in part to both reconceptions of the content of law and of the demands and rewards of various work settings and to changes in the students' conceptions of themselves which carry with them changes in career interests.
Processing Workers' Compensation Claims in Illinois
Authors: Sincere Lois R.
Published: July 2006

The substitution of no-fault compensation for recoveries at tort law in cases of work-related injuries would, according to turn-of-the-century reformers, minimize resort to adjudication. Charges of unanticipated controversy and excessive litigation under state compensation statutes, however, have been raised periodically for several decades.

This article presents the findings of current research into the prevalence of disputes, attorney involvement, and court suits under workers' compensation legislation in Illinois, the locale of specific criticism. The author offers an explanation of the obstacles to discovering the incidence of work-related injuries, along with a description of the handling of both undisputed and disputed claims. By following the itinerary of a sample of 6, 652 compensation claims filed during 1978 through several stages of administrative and judicial processing, she then examines the persistence of these primarily disputed claims from initiation to resolution. Her major finding is that under workers' compensation legislation in Illinois, litigation, whether defined as attorney involvement or court action, may not be as excessive as charged. The research uncovers the need for more precise standards for defining a surfeit of controversy and offers suggestions for meeting this need.
Cases, Conflict, and Accommodation: Patterns of Legal Interaction in an American Community
Authors: Engel David M.
Published: July 2006

This article provides an overview of an empirical study of a civil trial court and the environment of indigenous law and conflict resolution in which the court operates. The article combines an analysis of civil cases and litigants with an investigation of alternative nonjudicial approaches used by residents of the community. The first section of the article examines the emergence of legal conflicts from the fabric of social relationships in the community and compares cases and parties in the court with those that gravitate toward nonjudicial settings. The second section compares processes and outcomes available in the court with those that may be obtained nonjudicially. The article concludes that different categories of cases emerge from different kinds of social relationships and for this reason are associated with fundamentally dissimilar patterns of values, norms, procedures, and outcomes. It also emphasizes the benefits to be obtained from investigating the complex relationships and interchanges that link local level trial courts to their communities.
A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests
Authors: Davies Thomas Y.
Published: July 2006

The controversy over a “good faith mistake” exception to the exclusionary rule and the 1982 National Institute of Justice study of the effects of the rule in California have focused attention on the “costs” of the rule. This article reviews the NIJ study and seven other relevant studies and concludes that the NIJ study's claim that the rule has a “major impact” on the disposition of felony arrests is misleading and exaggerated. California data show that prosecutors reject only 0.8% (8 in 1,000) of felony arrests because of illegal searches. The effect of the rule is concentrated in drug cases in which the rejection rate by prosecutors is 2.4% (not 30%, as suggested by the NIJ study), but the rejection rate for non-drug arrests is less than 0.3%, and the rate is even lower for violent crimes. Even if one looks at the cumulative effect of the rule through all stages of the felony process in California, only about 2.35% of felony arrests are lost because of illegal searches, and this is a high-side estimate based on potentially atypical samples. Moreover, studies of “lost arrests” have not differentiated between arrests resulting from bona fide crime investigations and arrests that resulted from arbitrary searches or arrests that were made to seize contraband, for harassment, or for purposes other than obtaining a conviction. The author concludes that available data show the cost of the rule is marginal, especially in view of the ambiguous nature of the lost arrests. Moreover, it is doubtful that a good faith mistake exception would save any substantial proportion of the arrests lost following illegal searches. In particular, an exception for searches conducted under an improper warrant would save only a negligible proportion of lost arrests.
Police Accountability and the Media
Authors: Skolnick Jerome H. , McCoy Candace
Published: July 2006

This article explores First Amendment theory and the role of the media in generating police accountability through public understanding of police organizations. We argue that free speech theory can and should look beyond “abridgment” issues and raise questions about the civic responsibility of the press to inform the public about key governmental institutions. The media's concern with crime news, we found, vastly overshadows its coverage of the police us a complex, in-teresting, and expensive governmental agency. Reporting about police institutional patterns and policies contributes more toward fulfilling First Amendment values-not only that of “checking” police excesses, but of facilitating the goal of enlightened citizen participation in local government.

Those who won our independence believed…that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject.
Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920
Authors: Hall Kermit L.
Published: July 2006

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.
American State Supreme Court Justices, 1900-1970
Authors: Kagan Robert A. , Infelise Bobby D. , Detlefsen Robert R.
Published: July 2006

What are the paths that lead to the state supreme court bench? If we can identify these paths, can we then determine that they produce distinctive patterns in a court3 decision making? Based on a study of 694 judges who sat on 16selected American state supreme courts between 1900 and 1970, this article finds that the appellate judiciary was drawn from a variety of legal and political backgrounds rather than from any single career line. The judges came from both non-elite and elite law schools. About half had no substantial lower court judicial experience. Over one-third had been public prosecutors, another third had held other elective political office, and only a small minority had practiced in multilawyer big-city law firms. The article reports changes over time in these and other judicial characteristics (such CIS age, turnover, political party affiliations) and describes interstate differences. Few significant statistical relationships are found, however, between the background characteristics of judges and selected characteristics of state supreme court opinions.
Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients
Authors: Flemming Roy B.
Published: July 2006

In this study, relations between criminal defense lawyers and their clients are explored from the attorneys' perspective using interviews with 155 defense counsel from nine felony trial courts. Attorneys claim public clients are more skeptical and less willing to accept their professional authority than private clients and that they need to take extra steps to gain their cooperation. The accountability of attorneys is investigated in relationship to the need to establish “client control.” This problem is resolved through a gamelike situation leading to the apparent paradox that attorneys share decision-making power with public clients contrary to their expectations.
The Canadian Legal Profession
Authors: Arthurs H. W. , Weisman R. , Zemans F. H.
Published: July 2006

This article seeks to weave together the limited information available on the legal professions of the Canadian provinces. Following the same general format as the other comparative studies in this series, it also offers several critical observations of special interest to readers in the United States, whose experience the Canadian bar so closely tracks. The phenomenon of stratification—familiar to American observers—is clearly visible in the Canadian legal profession. Combined with other centrifugal forces, it threatens the unity of a profession which, until recently, has managed to preserve a high degree of cohesion in training, ideology, and institutional structures. On the other hand, in certain respects, the Canadian experience seems to differ from that of the United States, especially in the strength and peculiar structure of publicly funded legal aid schemes, in the profession's continuing formal autonomy and relative immunity from public regulation, and in its long-lasting attachment to apprenticeship as a necessary stage in professional formation. These and other convergences and divergences between the two countries raise questions of general significance: To what extent do the similarities between Canada and the United States verify the assumption implicit in the theoretical literature (principally Abel, Freidson, and Larson) that there is an empirical referent for something called legal professionalism? And to what extent do the differences suggest that containing societies contribute distinctive characteristics to their legal professions, whose qualities are therefore highly contingent?
Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity
Authors: Eule Julian N.
Published: July 2006

According to the general wisdom, legislatures lack both the power to “entrench” their enactments against alteration by their successors and the power to “retroactively” undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.
Professionalism Reconsidered
Authors: Moore Nancy J.
Published: July 2006

Over the past few years, bar officials have increasingly called for a “rekindling” of lawyer professionalism. Perhaps the most forceful of these calls was sounded by former Chief Justice Warren Burger, in an oft-quoted speech he gave to the 1984 American Bar Association meeting in Las Vegas. There he chastised the profession for what he viewed as recent departures from “professional standards and traditions of the bar [which] in the past served to restrain members of the profession from practices and customs common and acceptable in the rough-and-tumble of the marketplace.” In particular, the former Chief Justice cited the absence until recently of lawyer advertising and solicitation, noting that “to those who still regard the practice of law as a profession of service-with high public obligations, rather than as a trade in the marketplace-the professional standards against advertising are still widely observed.” Although conceding that some developments in “higher lawyer visibility”, such as “store-front, street-level offices of so-called legal clinic" actually benefit the public, Burger nonetheless maintained that advertising and other commercial practices as well as a number of other abuses (such as an “excess of adversary zeal”) have resulted in a sharp decline in public confidence, as measured by some opinion polls.
“My ‘Partner’ in Law and Life”: Marriage in the Lives of Women Lawyers in Late 19th and Early 20th-Century America
Authors: Drachman Virginia G.
Published: July 2006

This essay examines the ways in which women lawyers of two generation–the pioneer generation of the 1880s and the “new woman” generation of the 1910s–confronted the dilemma of marriage and career. Members of the Equity Club in the 1880s revealed three distinct sets of attitudes toward balancing marriage and career: the separatist approach that a professional woman must remain single; the Victorian attitude that a married woman must sacrifice her career; and the integrated approach that a woman could have both marriage and career. Women lawyers surveyed by the Bureau of Vocational Information in 1920 revealed that the “new woman” generation of women lawyers lived in an era of transition. While they shared the same separatist, Victorian, and integrated views toward marriage and law practice as did women lawyers in the 1880s, they also embraced the new values of the early 20th century which shaped both the contours of the legal profession and the parameters of women's lives. Set within the context of the new values of the era, the separatist, Victorian, and integrated approaches to resolving the dilemma of marriage and career, which were originally formulated by women lawyers in the late 19th century, assumed new meanings for women lawyers in the early 20th century.
Why Are There So Many Lawyers? Perspectives on a Turbulent Market
Authors: Sander Richard H. , Williams E. Douglass
Published: July 2006

The venerable legal profession has emerged, over the past generation, as one of the nation's fastest growing occupations. In this paper, we suggest that this fact is not mere happenstance, but is part and parcel of other fundamental changes in the “legal services industry.” We attempt to define and clarify these changes by presenting time series data on a number of these developments, including the growth of law as an economic sector, the increasing concentration of law firm activity, and income trends among lawyers. We then offer a simplified demand and supply analysis of the market for lawyers, concluding that several interrelated factors fostered the lawyer boom. In the paper's final sections, we speculate about the forces causing a spiraling demand for legal services and a growing inequality of incomes between the elite firms and sole practitioners.
When Do We Think About Detection? Structural Opportunity and Taxpaying Behavior
Authors: Stalans Loretta J. , Smith Kent W. , Kinsey Karyl A.
Published: July 2006

Past studies have generally found that perceptions of the likelihood of formal and informal sanctions have lower explanatory power of noncompliance with laws than do internalized norms. Using data from two telephone surveys, we examined a situational characteristic, structural opportunity, that may prod individuals to think about the likelihood of detection from the Internal Revenue Service for underreporting income. Structural opportunity is the degree to which an individual's economic or social situation provides ways to avoid detection. Individuals with high structural opportunity perceived a lower likelihood of IRS detection and indicated that they were less likely to feel guilty if they engaged in tax cheating. Our data also suggested that some individuals with high structural opportunity may be in social networks which condone tax cheating. As expected, structural opportunity provided a condition under which individuals took into consideration the perceived likelihood of formal and informal detection in formulating intentions to engage in tax cheating. Our findings suggest that an examination of the interaction between situational and individual characteristics will provide a more complete understanding of decisions to engage in illegal behavior. Implications for deterrence theory are discussed.
Interpretive Sociolegal Research
Authors: Harrington Christine B. , Yngveson Barbara
Published: July 2006

A major challenge for scholars seeking new directions in sociolegal research is the persistence of old paradigms and assumptions about law. The challenge for the new is not to be cast as part of the old by efforts that assimilate its methods, goals, and results to earlier approaches. Such efforts, aimed at comparison and clarification, tend to “domesticate” the new, or in Boa Santos's words “doubly institutionalize” a developing project by reading the order of a conventional analysis into the emergent order appearing in the interstices of new scholarly work. In this essay we focus on interpretivism as a developing project in sociolegal research. In particular, we discuss three aspects of interpretive research that are at the center of current debates in sociolegal theory: meaning construction and the dynamics of power, legal ideology, and knowledge as politics. Our discussion focuses on different readings of ideology, on different understandings of power, and on the politics of interpretive research connected with these readings. To illuminate the struggles over these points and at the same time illustrate the process of domestication, we begin with a recent paper by David Trubek and John Esser, “‘Critical Empiricism’ in American Legal Studies.” Their paper lays out a treatment of ideology and politics that provides a basis for our broader discussion of interpretive work in the second half of this essay.
Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law
Authors: Forbath William E.
Published: July 2006

For most of the 19th century, the labor movements of England and America seemed to be developing along similar lines. Then, in the decades around the turn of the century, both movements were embroiled in a common battle over the political soul of trade unionism. In England, the champions of broad, class-based social and industrial reforms prevailed. In the United States, they lost, and the winners were the voluntarists, who held that labor should steer clear of politics as much as possible. This article suggests that the key reasons for the divergence lie not in the sociology of the working class or labor movement, so much as in the character of the state and polity and the lessons trade unionists drew from experiences in those arenas. The difference between judicial supremacy in the United States and parliamentary supremacy in England combined with other differences in the two nations’ forms of government to produce sharply contrasting lessons about the value of state-based reforms.
Court Management of AIDS Disputes: A Sociolegal Analysis
Authors: Musheno Michael C. , Gregware Peter R. , Drass Kriss A.
Published: July 2006

Historically, disease scares reveal contradictions in the social order. We postulate that courts focus on depoliticizing social tensions revealed by AIDS, legitimating the routines of dominant parties in the AIDS sociolegal network. At the same time, courts deviate from their normal practices try upholding the claims of subordinate parties in this network, particularly people living with AIDS (PWAs) and their allies. Our analysis of 36 AlDS-related court rulings, published during the formative years of AIDS litigation in the United States, supports the notion that courts operate as “double-edged” institutions. To explain the duality of judicial decision making, we concentrate on the powers of social and cultural factors rather than on the doctrinal judgments of the courts. We trace how relational attributes, evident in contestants' characteristics (e.g., plaintiff/defendant, status differentials) and the nature of claims (i.e., restrictive/expansive), combine to account for wins for dominant parties and how other combinations of these attributes define wins for subordinate parties. We also show how judges combine specific interpretational attributes in the text of their rulings (e.g., use of divisive AIDS metaphors, deference to medical authority) to justify wins. We consolidate these findings to discuss how PWAs and their allies might use the courts to their advantage and point out the ways in which the changing epidemiology of AIDS in the United States limits the use of courts.
An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law
Authors: Feldman Stephen M.
Published: July 2006

Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.
Do Lawyers Impair Economic Growth?
Authors: Epp Charles R.
Published: July 2006

The large U.S. legal profession hurts economic productivity in the United States and our economic competitiveness abroad according to a common claim A number of studies support that claim, but they suffer from serious flaws. I reexamine the hypothesis that large lawyer populations impair economic growth and suggest that it lacks theoretical and empirical support. The hypothesis depends on false assumptions about the organizational capability and interest of the legal profession; the empirical research in sup port of the hypothesis depends on flawed lawyer data, unusual combinations of high lawyer populations and low economic growth in one or two countries, and the unjustified use of lawyer population figures from the 1980s in analyses of economic growth prior to that period. I present the results of research on lawyer populations and economic growth among the US. states and in a sample of countries, correcting for the worst flaws of past research The results do not support the claim that large lawyer populations impair aggregate economic growth The analysis is not intended as the final answer on this important question but rather as an encouragement for a more sophisticated understanding of the role of lawyers in late modern economies.
Passionate Kisses?
Authors: Cmiel Kenneth
Published: July 2006

Marianne Constable's Nietzschean foray into American legal writing is a contribution simultaneously to both theory and history. The latter deserves special mention, for despite the very important legal theory currently being played in a Nietzschean key, legal history has largely remained immune, caught in a range of liberal and critical approaches. Constable in this essay takes a familiar body of thought and interrogates it with a stunningly new set of questions. What looks like the checkered career of “democratic culture” to a writer like Morton Horwitz becomes the descent into the lowest stages of hell for Constable, a journey to the deepest recesses of nihilism.
“You Wouldn't Take a Seven-Year-Old and Ask Him All These Questions”: Jurors' Use of Practical Reasoning in Supporting Their Arguments
Authors: Manzo John F.
Published: July 2006

In ordinary conversation, speakers are often called on to defend their assertions. In talk that takes place in institutional settings, speakers must often account for their claims as well. This study concerns the methods of argumentative support employed by participants in a particular institutional setting: jury deliberations. Micro-interactional analysis of transcripts of two actual deliberations—using the theore tical and methodological perspectives of ethnomethodology and conversation analysis-reveals that when jurors present defenses or accounts of their positions, they often reference mundane experience and practical reasoning. Jurors do not, then, merely weigh strictly “legal” considerations. Three of the jurors' discursive methods are scrutinized: Normative assertions, claims of expertise, and declarations of knowledge. These techniques serve not only to establish “evidence” in support of a juror's position but also to deflect other jurors' disagreement
Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past
Authors: Huyse Luc
Published: July 2006

The author looks at one component of transitions to democracy: the strategies successor elites develop to deal with injustices committed by the previous, authoritarian regime. He compares post-transition justice in Belgium, France, and The Netherlands after World War II and in Eastem Europe after the fall of communism. He discusses several factors that influence policy choices. Among the most influenrial are the legacy of the past regime, the internutwnal legal context at the time of the passage to democracy, and the mode of transition and its ensuing impact on the balance of power between the old and the new order.
Lustration as a Problem of the Social Basis of Constitutionalism
Authors: Stinchcornbe Arthur L.
Published: July 2006

One part of building a new constitution after wars, revolutions, civil wars, or dramatic regime changes is to draw a cultural boundary in time, declaring various aspects of the old regime illegitimate and various legalities and constitutional principles of the new regime legitimate. One part of that process, in turn, is to decide how the new regime should treat the guilt of individuals for terror, collaboration, betrayal of information to the regime, and the like. This essay argues that such lustration processes should be a very minor part of the definition of the meaning of the pat, and even less of a part of building social supports under the new constitution. It also assesses the contributions on lustration in this issue in light of this view of what place lustration should play in the construction of democratic constitutions after authoritarian regimes.
The Sex Right: A Legal History of the Marital Rape Exemption
Authors: Ryan Rebecca M.
Published: July 2006

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period following World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like “rape,” “marriage,” and “husband” validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.
Whose Safety Net? Home Insurance and Inequality
Authors: Baker Tom , McElrath Karen
Published: July 2006

Drawing on prior theoretical and empirical work that has begun to constitute the insurance field as a distinct sociolegal research project, this study uses quantitative and qualitative data collected following Hurricane Andrew in 1992 to explore distributional questions within that field. Survey results show that higher income, age, and education were associated with having home insurance and that Hispanics and blacks were less likely than non-Hispanic whites to have insurance. The study provides the first quantitative evidence of bias in the insurance claims process by documenting a statistically significant and substantial ethnic difference in the timing of insurance payments. The qualitative research helps to explain the difference in the timing of insurance payments as the product of unconscious bias by insurance adjusters. The study concludes by proposing market-structuring regulation to reduce the inequality encountered.
Law in Politics: Struggles over Property and Public Space on New York City's Lower East Side
Authors: Brigham John , Gordon Diana R.
Published: July 2006

This article examines politics on the Lower East Side of Manhattan, New York City, for evidence of law at the constitutive level. We see legal relations shaping grassroots struggles over public space and housing as forums, claims, and political positions. This view challenges instrumental conceptions of law still prominent in some social-scientific approaches.
Fussing about the Forum: Categories and Definitions as Stakes in a Professional Competition
Authors: Dezalay Yves , Garth Bryant
Published: July 2006

This article seeks to show the way that professional competition, including academic competition, about the definitions and categories of dispute resolution transforms the field of business disputing. It draws on extensive interviews and focuses on two case studies. The first is “international commercial arbitration,” and the second is the ADR movement, especially “mediation,” in the United States. In each case, the article shows that there is competition about what can legitimately be termed arbitration or mediation; that there is competition more generally for the business of business disputing; that the competition is not played on a level playing field; that competitors compete in terms of the symbolic capital that they have to offer, which is changing over time and in relation to what others possess; and that the (always provisional) results are important for transforming the “rules of the game” for governing business transactions. The internal transformations in the field of business disputing also take place in close conjunction with transformations that can be seen as outside, above all, the international restructuring of business relations in the 1970s and 1980s.