bluuebunny/crossref_metadata_2025 huggingface dataset:
The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case
Authors: Schneyer Theodore J.
Published: July 2006

Many of the unified bars—public bodies to which all lawyers must belong and pay dues in order to practice—have been embroiled in legal and political disputes recently. Focusing on the history of the unified bar in Wisconsin, this article accounts for these disputes in terms of contradictions inherent in the very concept of a unified bar. Across a wide range of issues, the author argues, decision makers have been unsure whether to treat a unified bar as a public agency, a compulsory membership organization, or a private voluntary association, and thus unable to determine when public accountability, the protection of dissident members, or associational autonomy should be the dominant policy in unified bar affairs. The author concludes that disputes over questions of unified bar governance are unlikely to subside and that the unified bars should therefore be terminated in favor of a combination of private voluntary state bar associations and administrative agencies independent of the organized bar.
The Societal Cost of the Exclusionary Rule: An Empirical Assessment
Authors: Nardulli Peter F.
Published: July 2006

A key criticism that has emerged in the debate over the search and seizure exclusionary rule is that it exacts heavy societal costs in the form of lost prosecutions and that such costs outweigh any demonstrated social benefits. This article examines the costs of three exclusionary rules using data collected for 7,500 cases in a nine-county study of criminal courts in three states. It emphasizes motions to suppress physical evidence but for comparative purposes also includes motions to suppress confessions and identifications. The results show that the various exclusionary rules exact only marginal social costs. Motions to suppress physical evidence are filed in fewer than 5% of the cases, largely drug and weapons cases, while serious motions to suppress identifications and confessions are filed in 2% and 4% of the cases. The success rate of motions to suppress is equally marginal. Successful motions to suppress physical evidence occur in only 0.69% of the cases, while successful motions to suppress identifications or confessions occur much less often. Moreover, not all who successfully suppressed evidence escaped conviction, especially when only an identification or a confession was suppressed. In all, only 46 cases—less than 0.6% of the cases studied—were lost because of the three exclusionary rules combined, most of them involving offenses that would have incurred less than six months’ imprisonment or first offenders. Finally, the impact of unsuccessful motions on subsequent plea bargaining was found to be marginal; only unsuccessful motions to exclude confessions resulted in any real sentencing concessions.
Prosecutors’ Discretionary Use of the Grand Jury to Initiate or to Reinitiate Prosecution
Authors: Gilboy Janet A.
Published: July 2006

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors’ use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors’ practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors’ case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors’ special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors’ power to reinitiate.
What Happened inHazelwood: Statistics, Employment Discrimination, and the 80% Rule
Authors: Meier Paul , Sacks Jerome , Zabell Sandy L.
Published: July 2006

Tests of statistical significance have increasingly been used in employment discrimination cases since the Supreme Court's decision in Hazelwood. In that case, the United States Supreme Court ruled that “in a proper case” statistical evidence can suffice for a prima facie showing of employment discrimination. The Court also discussed the use of a binomial significance test to assess whether the difference between the proportion of black teachers employed by the Hazelwood School District and the proportion of black teachers in the relevant labor market was substantial enough to indicate discrimination. The Equal Employment Opportunity Commission has proposed a somewhat stricter standard for evaluating how substantial a difference must be to constitute evidence of discrimination. Under the so-called 80% rule promulgated by the EEOC, the difference must not only be statistically significant, but the hire rate for the allegedly discriminated group must also be less than 80% of the rate for the favored group. This article argues that a binomial statistical significance test standing alone is unsatisfactory for evaluating allegations of discrimination because many of the assumptions on which such tests are based are inapplicable to employment settings; the 80% rule is a more appropriate standard for evaluating whether a difference in hire rates should be treated as a prima facie showing of discrimination.
Ladders and Bushes: The Problem of Caseloads and Studying Court Activities over Time
Authors: Daniels Stephen
Published: July 2006

The “litigation explosion” has been a frequent topic of concern in both academic circles and the popular press. This idea draws its polemical power from the assumption that litigation rates were lower in the past. But we presently know little about long-term trends in court activity. This article is a critical review of the existing literature on long-term litigation trends and the social development model which scholars have posited to explain changes in litigation patterns. Whether courts are indeed facing imminent crisis because of an explosion is still very much an open question; the extant literature offers no proof of an explosion. The available data do suggest, however, that previous studies may have been overly optimistic in expecting litigation trends to follow any single pattern. The questions about litigation rates will remain open until we are able to gain a fuller understanding of the trends in court activity over time.
The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities
Authors: Pepper Stephen L.
Published: July 2006

This essay presents a moral justification for the current generally accepted amoral ethical role of the lawyer. The justification is premised primarily upon the values of individual autonomy, equality, and diversity. Based upon these values, the author argues that the amoral role is the correct moral stance for the lawyer as a professional, is a “good” role. The essay then responds to two of the most frequent criticisms of that moral stance: the first based upon economic inequality and the fact that lawyers'services must be purchased; the second based upon the absence of the “adversary system” context for most lawyer work. The author then elaborates a serious problem created by the conjunction of the amoral role and the dominant legal philosophy of American lawyers, “legal realism.” If the limit on a lawyer's conduct under the traditional amoral role is the law, then the realist emphasis on the indeterminacy and manipulability of “law” leave the lawyer in a difficult moral position. Finally, a series of possibilities are presented to deal with this problem, the most promising of which is the “moral dialogue” between lawyer and client as an adjunct to the amoral role.
When Is Justice Fair? An Integrated Approach to the Outcome Versus Procedure Debate
Authors: Landis Jean M. , Goodstein Lynne
Published: July 2006

Defendants’ perceptions of the fairness of their criminal processing outcomes have been the stated concern of some criminal justice reformers. Past research has suggested that these perceptions are influenced by characteristics of the outcome received as well as by characteristics of the process through which the outcome is imposed. This analysis tests a theoretical path model of perceived outcome fairness, which examines the relative influence of both outcome and process characteristics, using survey data collected from 619 prison inmates incarcerated in Minnesota and Illinois. The results indicate that factors related to both outcome and process significantly influence sample inmates’ perceptions of their criminal justice processing outcomes and together explain a substantial portion of the total variance. However, two process-related characteristics are found to be the most powerful predictors of perceived outcome fairness. Inmates’ perceptions that they are fairly treated by their lawyer, judge, and prosecutor are the strongest correlates of perceived outcome fairness, followed by the mode of disposition through which their outcomes are imposed; inmates who plea bargain are more likely than those who go to trial to perceive their outcome as fair.
Private Representation in Washington: Surveying the Structure of Influence
Authors: Nelson Robert L. , Heinz John P. , Laumann Edward O. , Salisbury Robert H.
Published: July 2006

Despite the significance of interest representation to theories of law and politics, the social organization of interest representation has not received systematic empirical analysis. Based on interviews with 776 individuals engaged in the representation of private interests concerning national policies on agriculture, energy, health, and labor, this article reports some findings concerning the social and political characteristics of representatives, the nature of their work and their relationships with client organizations. Three models of the social organization of interest representation are developed and examined: a model based on substantive expertise, an institutional targets model, and a client-based model. The findings indicate that representation is predominately organized around client interests Although lawyers constitute a significant and distinctive group among representatives, they are neither as numerous nor as active in policy making as is commonly assumed. The analysis suggests that representatives are not likely to exercise influence in the policy-making process that is autonomous from client organizations.
Policy, Politics, and the Criminal Courts
Authors: Scheingold Stuart A. , Gressett Lynne A.
Published: July 2006

This case study of criminal process in a middle-sized western city in the United States employs quantitative data, interviews, and library research to explore the politics of criminal process and its impact on the operative policies of the criminal courts from I964 through 1980. The research reveals significant policy change but a very elusive relationship between politics and policy. Judges and prosecutors preserve a significant measure of autonomy for dealing with the bulk of their caseload by giving up much of their independence in those cases that are inescapably politicized. Both judges and prosecutors use this partial political insulation to advance their own versions of criminological wisdom. On the other hand, they are constrained by the prevailing ethos and by institutional limitations to operate well within conventional definitions of crime and criminality—even when those conventional views run counter to their own practical experience.
Causation Theory and the Causes of Sexual Violence
Authors: Schauer Frederick
Published: July 2006

As the very title of John Mackie's The Cement of the Universe reminds us, causation permeates and holds together our lives, our language, and our laws. Causal claims are part of our everyday discourse, causal assumptions undergird many of our actions, and causal relationships lie at the heart of that large body of laws presupposing such a relationship between the immediate regulatory target and some more foundational governmental concern. Not unexpectedly, the omnipresence of causal relationships and the pervasiveness of our concern with them have generated multiple conceptions of what it is for something to be the cause of something else. Insofar as these various conceptions are cabined within the domains in which they have been developed, and for which they are most useful, little harm comes from mutually coexisting but different conceptions of causation. Yet the inevitable and desirable leakage among disciplines, and among professional, political, and public domains, has as an unfortunate byproduct an increased risk of conceptual confusion as strikingly different conceptions of causation are misleadingly referred to under the same rubric in the same domain.
The Denigration of Rights and the Persistence of Rights Talk: A Cultural Portrait
Authors: Milner Neal
Published: July 2006

The following two themes emerge in an investigation of legal culture in the United States: (1) a denigration of rights and yet (2) a persistent notion that rights are important and should be salvaged. The discourse of rights continues to act as an important frame of reference throughout legal culture. The open-ended nature of rights discourse plus the powerful cultural resonance of rights encourage the use of rights talk to frame issues even when the framers are severely critical of the use of rights. Even if many people agree, however, there are reasons to assess this consensus negatively.
The Economic Problem of Fixed Costs and What Legal Research Can Contribute
Authors: Bittlingmayer George
Published: July 2006

The antitrust laws demand competition but, in general, no competitive outcome is possible in markets characterized by substantial fixed costs. Consequently, restrictions on competition may have an efficiency defense, and a prohibition of cartel agreements may entail costs as well as benefits. Giving examples, this essay illustrates the problem that fixed costs pose for competition, long recognized in economics, and discusses implications for real-world industries. The author addresses Wiley's recent criticism of theoretical and empirical work on the fixed cost problem and outlines an agenda for legal research that can help illuminate the underlying economic and antitrust policy issues posed by industries with high fixed costs.
Accommodation and Satisfaction: Women and Men Lawyers and the Balance of Work and Family
Authors: Chambers David L.
Published: July 2006

This study of graduates of the University of Michigan Law School from the late 1970s reports on the differing ways that women and men have responded to the conflicting claims of work and family. It finds that women with children who have entered the profession have indeed continued to bear the principal responsibilities for the care of children, but it also finds that these women, with all their burdens, are more satisfied with their careers and with the balance of their family and professional lives than other women and than men.
Class, Status, and the Punishment of White-Collar Criminals
Authors: Weisburd David , Waring Elin , Wheeler Stanton
Published: July 2006

The treatment of white-collar offenders by the criminal justice system has been a central concern since the concept of white-collar crime was first introduced In general, it has been assumed that those higher up the social hierarchy have an advantage in every part of the legal process, including the punishment they receive as white-collar criminals. In a controversial study of white-collar crime sentencing in the federal district courts, Wheeler, Weisburd, and Bode contradicted this assumption when they found that those of higher status were more likely to be imprisoned and, when sentenced to prison, were likely to receive longer prison terms than comparable offenders of lower status. While they argued that results were consistent with “what those who do the sentencing often say about it,” their analyses failed to control for the role of social class in the sentencing process. In this article we reanalyze the Wheeler et al sentencing data, including both measures of socioeconomic status and class position. Our findings show that class position does have an independent influence on judicial sentencing behavior. But this effect does not demand revision in the major findings reported in the earlier study.
Marxism and the Rule of Law: Reflections After the Collapse of Communism
Authors: Krygier Martin
Published: July 2006

This article concerns the relationship between the thought of Karl Marx and the fate of law, and the rule of law, in the communist states of the Soviet Union and east and central Europe. It takes the rule of law to be primarily an attempt to institutionalize restraint on power through law, and it takes it to be realized to a far greater extent in Western liberal democracies than in once-communist states. It argues that Marx's thought offered no support for such institutionalization of restraint, but, on the contrary, considerable support to the repressive, ideological and purely instrumental uses of law and the rejection and destruction of the rule of law, which were characteristic of communism.
Keeping the Law Up to Date: The Idiom of Legalism and the Reform of Administrative Law in England and Wales
Authors: Sterett Susan
Published: July 2006

The political effectiveness of legal expertise in the United States has rested on the ability of a peak association to present itself as representing the opinion of the profession as a whole. It has also relied on a broad epistemology in which lawyers claim to know the right thing to do. However, the effectiveness and placement of such expertise is a comparative issue. This article argues that organizations other than peak associations can muster the support required for legitimacy in the modem state. The legal profession's epistemology could lead it to narrow rather than broaden its claims in order to effectively claim expertise in something. The ability of the central state to shape a profession's mandate and to reject its advice will also influence the deployment of legal expertise. The article explores these issues in the context of the reform of administrative law in England and Wales. In England and Wales, an expertise-based commission mimicked the processes expected of a peak association. In anticipation of rejection by the central administration, it constrained rather than broadened its policy recommendations.
Tripartism: Regulatory Capture and Empowerment
Authors: Ayres Ian , Braithwaite John
Published: July 2006

The features of regulatory encounters that foster the evolution of cooperation often also encourage the evolution of capture and corruption. Solutions to the problems of capture and corruption—limiting discretion, multiple-industry rather than single-industry agency jurisdiction, and rotating personnel—inhibit the evolution of cooperation. Tripartism—empowering public interest groups—is advanced as a way to solve this policy dilemma. A game-theoretic analysis of capture and tripartism is juxtaposed against an empowerment theory of republican tripartism. Surprisingly, both formulations lead to the conclusion that some forms of capture are desirable. The strengths from converging the weaknesses of these two formulations show how certain forms of tripartism might prevent harmful capture, identify and encourage efficient capture, enhance the attainment of regulatory goals, and strengthen democracy. While the case we make for tripartism is purely theoretical and general in its application to all domains of business regulation, our conclusion is a call for praxis to fish out the contexts in which the theory is true or false.
Bringing the State into Constitutional Theory: Public Authority and the Constitution
Authors: Griffin Stephen M.
Published: July 2006

This article brings the state into constitutional theory by presenting a theory of the development of the American state from the late 19th century to the present. The focus of the theory is the ability of the national state to exercise sovereignty or public authority over civil society. The main thesis is that the Constitution did not establish a government with a level of public authority adequate to the requirements of a modem democratic state. The result was a mismatch between the demands of civil society and the competence of state institutions, causing a reorganization of the political institutions of civil society in the early 20th century and a crisis of public authority in the 1960s. The United States continues to experience the consequences of an imbalance between the state institutions established by an 18th-century constitution and 20th-century democratic politics.
Progress Is Our Only Product: Legal Reform and the Codification of Evidence
Authors: Ariens Michael
Published: July 2006

Twentieth-century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a “rational” resolution of disputes. In large part due to these apparently radical and “corrosive” changes, the Model Code failed to win professional support and was not adopted by any state. The structure of the Model Code was used for the two subsequent evidence codification efforts, the Uniform Rules of Evidence and the Federal Rules of Evidence. These codification efforts found greater academic favor in part because they fit within the post-World War II jurisprudence of reasoned elaboration. The Federal Rules also enjoyed extraordinary professional favor because the drafters explicitly affirmed truth as the goal of the rules. The irony is that the framework of the Federal Rules, since they are based on the Model Code, contradicts this message.
The Relationship of Alternative Negligence Rules to Litigation Behavior and Tort Claim Disposition
Authors: Low Stuart , Smith Janet Kiholm
Published: July 2006

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.
Ownership Rights and the Rites of Ownership
Authors: Milner Neal
Published: July 2006

Using condominium owner and landowner narratives about their property, I consider how people answer the question, What does it mean to own something? These property narratives are framed around three sets of social practices, myths, and beliefs which I call rites of identity, rites of settlement, and rites of struggle—the rites of ownership. According to these narratives, ownership requires that the person possessing the property carry out these rites. Their sense of entitlement—ownership rights—is framed by these rites. Following the rites makes one a deserving property owner. Property rights are seen as protectors against arbitrary, unpredictable changes in status that violate these owners, sense that they are entitled to keep what they had worked so hard for and planned for so long. I conclude with a discussion of the value of property narratives for understanding the link between law and culture.
“Business Unionism” versus “Responsible Unionism”: Common Law Confusion, the American State, and the Formation of Pre-New Deal Labor Policy
Authors: O'Brien Ruth
Published: July 2006

The emergence of the American Federation of Labor in the 1880s and its ideology of voluntarism or “business unionism” transformed the mainstream American labor movement. Voluntarism, however, had little impact on the formation of the pre-New Deal labor policy. I suggest that members of the progressive movement developed “responsible unionism” as an alternative to “business unionism” and that it was the progressives' alternative that shaped later developments in labor policy. (1) Progressive state and federal court judges relied on the principles of agency, a fiduciary term, to make unions competent contracting parties and enforce collective trade agreements. (2) Although the AFL had long lobbied for anti-injunction legislation sup ported by an underlying ideology of voluntarism, the progressive Republican-Democratic coalition that engineered passage of the Norris-LaGuardia Anti-Injunction Act of 1932 based the legislation on their notion of “responsible unionism.” These progressives interwove the principles of agency into the act. As a result, rather than withdrawing the American state from labor-management relations, the act caused unions to begin to lose their status as private, voluntary associations, thus creating the foundation for the construction of the statist regulatory apparatus, the National Labor Relations Board, during the New Deal.
A Wake-Up Call from the Plea-Bargaining Trenches
Authors: Schulhofer Stephen J.
Published: July 2006

In an era of rising crime and youth violence, skyrocketing homicide rates in the inner cities, strapped municipal budgets and overwhelmed courts, what could be more untimely than a call to reduce plea bargaining and devote more resources to holding jury trials? Yet the issue of bargain justice, like the proverbial bad penny, stubbornly refuses to go away. The concern persists, not only for a lonely band of academics but also for many ordinary citizens, that plea bargaining compromises our aspirations to justice at the same time that it undermines the effective punishment of serious offenders.
Legal Reform and Social Construction: Violence, Gender, and the Law
Authors: Frohmann Lisa , Mertz Elizabeth
Published: July 2006

As scholars and activists have addressed the problem of violence against women in the past 25 years, their efforts have increasingly attuned us to the multiple dimensions of the issue. Early activists hoped to change the structure of power relations in our society, as well as the political ideology that tolerated violence against women, through legislation, education, direct action, and direct services. This activism resulted in a plethora of changes to the legal codes and protocols relating to rape and battering. Today, social scientists and legal scholars are evaluating the effects of these reforms, questioning anew the ability of law by itself to redress societal inequalities. As they uncover the limitations of legal reforms enacted in the past two decades, scholars are turning—or returning—to ask about the social and cultural contexts within which laws are formulated, enforced, and interpreted.
Narrating Domestic Violence: Producing the “Truth' of Violence in 19th- and 20th-Century Hawaiian Courts
Authors: Merry Sally Engle
Published: July 2006

Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.
Interpreting Media Representations of a “Night of Madness”: Law and Culture in the Construction of Rape Identities
Authors: Hirsch Susan F.
Published: July 2006

This article compares U.S. and Kenyan media representations of an incident at a Kenyan boarding school during which many young women were raped and several killed by their male schoolmates. The author's analysis of print media accounts reveals that how the press constructed the identities of “rapists” and “victims” relied on nationally specific stereotypes, myths, and scripts of rape and its relation to differences of culture, race, and rationality. U.S. accounts simultaneously explain the rapes by emphasizing difference and foreground legal constructions of rape identities that meat experiences of rape as essentially similar. The tension over difference and law in the U.S. accounts parallels the highly visible, though largely unproductive, debate among feminists pitting cultural relativism against legal universalism, and such dichotomized approaches preclude the development of politically useful conceptions of rape and rape identities. The analysis suggests that issues raised in the Kenyan press-the relation between sexual practices and rape and the state's role in furthering sexual violence-directed attention to complexities of rape and power elided by the m o w legal models pervasive in U. S . media and scholarly representations of rape. She concludes that fighting rape more effectively entails exposing limited representational practices and also attending to a broader range of understandings of rape and rape identities in various contexts
The Problems of Lustration: Prosecution of Wrongdoers by Democratic Successor Regimes
Authors: Siegelman Peter
Published: July 2006

This issue went to press almost exactly four years after the death of Charles Gillespie, in whose honor I wish to dedicate the lustration symposium. A political scientist at the University of Wisconsin with a broad range of comparative interests, Charlie's major work chronicled the reemergence of democracy in Uruguay. He would doubtless have been a contributor to this issue were he still alive, and there were many times during the course of working on it when I wished I could have asked for his advice. In addition to his passion for democracy, I remember Charlie for his learning and his humor, both of which he wore with an elegant English grace. Throughout his long illness, he never lost his appreciation for the silly; his life was proof that stoicism and courage need not be cold virtues, and the world is a much poorer place in his absence.
Truth as Justice: Investigatory Commissions in Latin America
Authors: Popkin Margaret , Roht-Arriaza Naomi
Published: July 2006

In recent years, Latin American countries have sought to come to terms with prior periods of widespread human rights violations, relying increasingly on investigatory commissions. Investigatory efforts have been undertaken by democratically elected governments that replaced military dictatorships, by UN-sponsored commissions as part of a UN-mediated peace process, and by national human rights commissioners. This article examines truth commissions in Chile and El Salvador, an investigatory effort in Honduras, and a proposed commission in Guatemala. It compares the achievements and limitations of these commissions within the political constraints and institutional reality of each country, focusing on four major goals: the effort to create an authoritative account of the past; vindication of victims; recommendations for legislative, structural, or other changes to avoid repetition of past abuses; and establishing accountability or the identity of perpetrators.
Lustration and Truth Claims: Unfinished Revolutions in Central Europe
Authors: Łoś Maria
Published: July 2006

This article focuses on discourses conducted in Central/East European countries, and Poland in particular, with respect to the issue of participation of former secret agents in the new power structures. It exposes the reader to the range, style, content, and variety of lustration discourses. It explores their relevance for the ongoing power struggle, paying special attention to their focus on and contribution to the processes of construction and control of truth about the past.

Given that the procedural and legal-institutional issues occupy a marginal place in the debate, it is inferred that the main sources of discord are more ideological and political than legal. The two main strains within the global lustration discourse are identified as: (1) dystopian discourses that paint a frightful picture of a lustrated society and imply that the upheaval of lustration would ruin the chance for democratic evolution, and (2) affirmative discourses that assert the need for lustration and portray the refusal to implement it as a barrier to successful transition to democracy. The article elaborates on assumptions and beliefs, which tend to link the dystopian opposition to lustration with the left-wing political affiliation or self-identification and the affirmative discourse with the right-wing orientation.
Retribution or Truth-Telling in South Africa? Legacies of the Transitional Phase
Authors: Berat Lynn , Shain Yossi
Published: July 2006

Almost from the start of South Africa's transition to democracy in the 1990s, the issue arose of how those both within the National Party government and from the opposition who had committed human rights abuses would be treated. Like many other countries undergoing democratic regime change, South Africa's endeavors to exorcise the demons of its past while ensuring stability have depended and continue to depend to a certain extent on the delicate choice between truth telling and retribution, a choice, in turn, closely tied to the process of democratization and to the distibution of power within the body that led the change. The authors ask how the nature of the South African transition and the character of the transitional authority affected the treatment of past abuses. They further examine the way the transitional authorities balanced retribution and truth telling and the consequences of their actions for the stability of the new democracy.
The Epistemology of Pure Sociology
Authors: Black Donald
Published: July 2006

Sociologists lack clarity and consensus about their scholarly mission. Some are purely and coldly scientific, some morally or politically critical, and some warmly or sentimentally humanistic. Their ultimate concerns include the True, the Good, and the Beautiful. Others are not explicit or even self-conscious about what they seek to accomplish, and still others combine various styles—scientific, critical, and humanistic—and are difficult or impossible to classify at all. Their discourse is cacophonous. The utterances of some are uninteresting to others, and their assessments of one another commonly seem completely misdirected.
Courting Justice? Legitimation in Lawyering under Israeli Occupation
Authors: Bisharat George E.
Published: July 2006

Israel has since 1967 administered the West Bank and Gaza Strip through highly legalistic and strongly repressive military governments. Has advocacy in Israeli courts on behalf of Palestinian residents of the West Bank and Gaza Ship has legitimated, and thus helped to perpetuate, ongoing Israeli military occupation of those regions? By examining legitimation in lawyering under lsraeli occupation, insight can be gained into the factors and their relative weights that lawyers facing harsh or repressive regimes must consider in balancing the costs and benefits of litigation to serve a social or political opposition movement. The author concludes that the benefits outweigh the legitimating effects of lawyers' work and that, on balance, Palestinians' election to seek representation in Israeli courts, and lawyers' choice to assist them, has been justified.
The Hired Gun as Facilitator: Lawyers and the Suppression of Business Disputes in Silicon Valley
Authors: Suchman Mark C. , Cahill Mia L.
Published: July 2006

This article draws on interview data from California's Silicon Valley to explore the role of local business attorneys in shaping the market for high-technology start-up financing. Far from exerting a disruptive or disputatious influence on business relations, Silicon Valley lawyers actively facilitate the functioning of the region's venture capital sector. In particular, attorneys intervene in the start-up process to absorb, suppress, and avert crucial uncertainties that might otherwise elevate transaction costs, imperil economic activity, and foster interorganizational discord. Local law firms moderate the hazards of new-company financing in at least three distinct ways: (1) by directly absorbing economic uncertainties in individual transactions; (2) by constructing, preserving, and reproducing normative and cognitive understandings within the community as a whole; and (3) by incorporating these local practices into the external legal regime.
Distributing Responsibility for Wrongdoing Inside Corporate Hierarchies: Public Judgments in Three Societies
Authors: Sanders Joseph , Lee Hamilton V. , Denisovsky Gennady , Kato Naotaka , Kawai Mikio , Kozyreva Polina , Kubo Takashi , Matskovsky Michael , Nishimura Haruo , Tokoro Kazuhiko
Published: July 2006

The decision rules individuals use to judge wrongdoing committed inside corporations and other hierarchical organizations are not well understood. We explore this issue by asking random samples of individuals in Moscow, Tokyo, and Washington, D. C., to respond to four short vignettes describing acts of wrongdoing by people in corporations. The vignettes are experiments that manipulate the actor's mental state, the actor's position in the organization, and whether the actor's decision was influenced by others in the organization. We examine (1) the distribution of responsibility among people in the organization, (2) how individual responsibility affects the attribution of responsibility to the organization itself, and (3) cross-national differences in attributions. We find that both what the actors did (their deeds) and the position they occupied (their roles) significantly influence the responsibility attributed to them. The responsibility attributed to the organizations themselves is a function of the responsibility attributed to the actors inside the organization, but not a function of the independent variables in the experiments. Cross-national differences emerge with respect to the responsibility assigned both to individuals and to the organizations themselves. We discuss implications of these results for past and future work.
“You Were Interested in Him as a Person?”: Rhythms of Domination in the Kennedy Smith Rape Trial
Authors: Matoesian Gregory M.
Published: July 2006

In this study I explore the theoretical and linguistic implications of the Kennedy Smith rape trial, using transcriptions of real live testimony as data. I examine theoretically how the logic of inconsistency in trial testimony of the victim and other witnesses activates an interaction among language, law, and culture as an epistemological practice of domination. In microlinguistic detail, I examine the categorization of action, linguistic ideologies, and situated rhythms of legal language through which our sexual identities are constituted to create an apparent inconsistency in the victim's account. Looking at the law-in-action, I hope to show how social actors use language and culture to create meaning in their legal interaction.
“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law
Authors: Peebles Gustav
Published: July 2006

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valorization with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenomenon as a whole also carries implications for EU civil society and for notions of legal equality among persons.
Too Many Black Men: The Sentencing Judge's Dilemma
Authors: Provine Doris Marie
Published: July 2006

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.
Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation
Authors: Mather Lynn
Published: July 2006

What role do litigation and trial court decisions play in shaping policy? This article explores that question by examining recent litigation against tobacco manufacturers filed by state attorneys general, plaintiff lawyers in class actions, lawyers for cities, unions, health plans, individual smokers, and others. I suggest how this litigation contributed to agenda setting, new ways of defining the problem of tobacco and the policy alternatives, political mobilization, new legal norms, and new political and legal resources for opponents of tobacco. Addressing theoretical debates about the power of the courts to effect change, I distinguish between causal and constitutive arguments and suggest how both can be incorporated in social analysis.
Contested Terrains and Regime Politics: Thinking about America's Trial Courts and Institutional Change
Authors: Flemming Roy B.
Published: July 2006

Institutional change in America's trial courts is poorly understood. Herbert Jacob in his 1982 presidential address to the Law and Society Association recommended that future research might consider intensive studies of single courts over time to trace the causal links between the courts and sociopolitical events outside the courtrooms. This essay explores Jacob's recommendation but ultimately takes a different tack. Instead of conducting natural histories of particular trial courts, this essay speculates that trial courts can be viewed as contested terrains made up of various sites. Proponents of particular ideas, interests, and institutions struggle to impose their policy preferences on these sites. These disputes, which wax and wane over time, constitute the regime politics that shape the probabilities of who wins in America's trial courts. The outlines of this perspective are sketched using the political science literature on agenda politics and on how policy ideas become institutionalized. Illustrations of this perspective are drawn from studies of civil and criminal court reforms.
Reproducing a Fit Citizenry: Dependency, Eugenics, and the Law of Marriage in the United States, 1860–1920
Authors: Lindsay Matthew J.
Published: July 2006

Between the Gilded Age and the Progressive Era, American state legislatures enacted a series of new laws that delineated a class of citizens who were deemed ineligible to participate in the institution of marriage. Scholars have characterized this development as evidence that lawmakers had lost faith in a laissez-faire approach to nuptial governance, and thus transformed marriage into an object of public regulation. This essay argues that behind the ostensible nuptial privatism of the mid-nineteenth century lay a self-conscious policy of judicial governance. Judges invoked the language of nuptial privacy and the common law of contract strategically to advance their vision of moral and economic discipline. The new marital prohibitions thus represented, the essay argues, not the expansion of the state's police power into the previously private realm of domestic relations, but rather a critical transformation in how nuptial reformers and lawmakers understood the relationship between marriage and the well-being of the polity.

Fueled by growing concerns about pauperism, the racial character of the urban proletariat, and the collapse of the economically independent single-male-breadwinner household, the changing form of nuptial governance signaled a thoroughgoing intellectual and strategic reorientation from an understanding of marriage as forming economically and morally viable households—the fundamental units of society—to an understanding of marriage as a largely procreative institution, as the literal source of the citizenry. This reconceptualization of marriage underwrote a strategy of nuptial governance that mobilized marriage as a strategy in the state's regulation of social reproduction.