bluuebunny/crossref_metadata_2025 huggingface dataset:
The Organization of lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law
Authors: Laumann Edward O. , Heinz John P.
Published: July 2006

Using data from personal interviews with 777 Chicago lawyers, constituting a random cross section of the urban bar, the authors estimate the relative volumes of effort devoted to each of several fields of law, analyze the degree to which practitioners specialize in fields or groups of fields, and examine the patterns of co-practice of the fields. They find that the total effort of the Chicago bar is about evenly divided between work for corporate clients and work for individual clients. They also suggest that, while relatively few lawyers are highly specialized to a particular doctrinal area of the law, most are specialized to the service of the needs of a particular type of client. Exploring possible implications of their findings, the authors speculate that lawyers who are specialized to clients rather than to substantive fields may lack the incentive to devote their resources to the rationalization of legal doctrine.
The Class Action as an Antitrust Enforcement Device: The Chicago Study Revisited
Authors: DuVal Benjamin S.
Published: July 2006

In 1976 the author published the results of a study of antitrust class actions in the Northern District of Illinois. At the time the data for that study were collected a substantial portion of the cases included in the study were pending. In the present article the author reassesses the findings of his earlier study on the basis of newly collected data on the cases that were then pending. Among the issues discussed are the comparative burdensomeness of class and nonclass cases, the alleged in terrorem effect of the class action on antitrust defendants, and the results achieved through the use of the class action.
Legal Pluralism in an American Community: Perspectives on a Civil Trial Court
Authors: Engel David M.
Published: July 2006

This article explores the role of a local trial court in terms of the plurality of legal systems—both formal and informal—found in the community in which the court operates. The concept of legal pluralism in American society is examined, and a comparison is made between the study of plural normative systems and the study of disputes and dispute processing. Two examples of legal pluralism drawn from an empirical study of a midwestern community are presented: the first exploring oral contractual agreements among farmers and the second examining formal and informal norms concerning divorce. The application of this form of analysis is found to reveal important distinctions between the manifest and latent functions that the trial court performs in its community setting.
Women Law Professors
Authors: Fossum Donna
Published: July 2006

Until recently, women were rarely found on the faculties of the nation's law schools. The few who were tended to teach at their alma maters and specialized in only a few subject areas. This article reports the extent to which women have become part of the tenure track faculties of the nation's law schools. The author finds that women have made considerable progress toward becoming tenure track law teachers. She finds, however, that women law professors continue to be academically inbred in disproportionate numbers and overrepresented in some subject areas.
The Model Rules: A Foreword
Authors: Lindgren James
Published: July 2006

This quarter's American Bar Foundation Research Journal book review section is devoted to review articles of the American Bar Association's proposed Model Rules of Professional Conduct. In the strict sense the current draft of the Model Rules is not a book—its typescript pages and denomination as “Discussion Draft” clearly identify it as subject to change. Yet even in their preliminary form the Model Rules merit careful analysis. First, the Discussion Draft is important in its own right. It is the most significant legislative proposal in the field of legal ethics in over a decade. Second, the problems discussed in these reviews—for example, enforcement, lying in negotiation, disclosure of client confidences, and client control of decision making—will continue to be serious problems no matter what changes are made in future drafts of the Model Rules. Third, by inviting the comments of some of the leading scholars in legal ethics before a final draft is written, we have been able to supply the Commission on Evaluation of Professional Standards with drafts of the symposium contributions in ample time for the Commission to consider making some of the changes the reviewers suggest. Last, because these scholars (most of whom are also practitioners) are familiar with the ethical literature of the last decade, they should be able to set the Model Rules in the context of that literature—no small accomplishment.
Disclosure Provisions of the Model Rules of Professional Conduct
Authors: Redlich Norman
Published: July 2006

The intense debate surrounding the proposed Model Rules of Professional Conduct centers primarily on those provisions that permit, or require, the disclosure by lawyers of information that is presently shielded from production by Canon 4 of the Code of Professional Responsibility. Indeed, were it not for the disclosure provisions, which many critics decry as fundamentally altering the lawyer-client relationship, the proposed Model Rules might have generated widespread support, or perhaps indifference, from most segments of the bar.
Conflicts of Interests and the Former Client in the Model Rules of Professional Conduct
Authors: Morgan Thomas D.
Published: July 2006

The work of the Kutak Commission in developing the Model Rules of Professional Conduct is probably the most important work in legal ethics since the Alabama State Bar Association first codified its Canons of Ethics in 1887. In general, the Commission's product is excellent. It is progressive without being radical and conservative without being timid. However, as can be expected in any discussion draft, there are issues not wholly thought through and concepts not clearly expressed. In the spirit of improving the next draft, these mostly critical comments are offered.
Preparation for the Practice of law—the Views of the Practicing Bar
Authors: Zemans Frances Kahn , Rosenblum Victor G.
Published: July 2006

The competence of the practicing bar has been subjected to substantial criticism in recent years. Since law schools have a virtual monopoly over access to the bar and licensure is granted without further training, legal education has been a particular focus of attack and reform efforts. Yet there has been little systematic study of what skills and knowledge are important in the actual practice of law or the relevant contributions of legal education. This study of practicing lawyers in Chicago examines the nature of the competencies important to the practice of law and the sources lawyers credit for contributing to their development.

Practitioners cite a broad range of skills, many of them not unique to the practice of law, with their importance varying by the predominant legal specialty practiced. The data further indicate that law schools play but a part in the development of skills and knowledge important to the practice of law and that experience, both prior and subsequent to graduation, plays a significant role. The evaluation of law schools' contributions is related to opportunities for further training, particularly in the context of law firm practice. There is, however, a strong general view that law schools rather uniformly concentrate on some skills to the exclusion of others and that the former are not necessarily those that lawyers think are most important to the practice of law.
The Disposition of Felony Arrests
Authors: Zeisel Hans
Published: July 2006

While we know a great deal about the disposition of felony arrests that reach the trial stage, we know little about the details of the dispositions reached without trial. And yet, this latter category forms as a rule over 90 percent, in New York City 98 percent, of all dispositions. Basing his analysis on a study done in the early 1970s, the author describes and presents data on the various stages in the process from arrest to final disposition through plea bargaining, trial, or dismissal of the case. For the first time, this usually opaque disposition pattern prior to trial emerges in the clarity of 23 graphs that illustrate the analysis. Of particular interest are some new insights into the mechanism of the plea bargaining process.
The Course Perceptions Questionnaire: Development and Some Pilot Research Findings
Authors: Hedegard James M.
Published: July 2006

This study describes the development of a questionnaire for measuring instruction and studying the interaction between instruction and learning. Instruments such as the Course Perceptions Questionnaire (CPQ) can help identify how different instructional methods affect what and how students learn and thus should help determine whether there is a single best method of instruction that results in the most learning by all students. Also, instruments like the CPQ can provide instructors with information on how their instruction is perceived by students (and, more generally, whether the methods instructors believe they are using are, in fact, the methods they are using) and how students respond to their instruction.
Computerizing Client Services in the Law School Teaching Clinic: An Experiment in Law Office Automation
Authors: Sprowl James A. , Staudt Ronald W.
Published: July 2006

In an earlier article (1979 American Bar Foundation Research Journal 1), James A. Sprowl described a new computational processor that enabled attorneys to automate repetitive client-interviewing and document-drafting tasks. In this article, Sprowl and coauthor Ronald W. Staudt describe the first experimental use of the new processor to serve the clients of a law school clinic. In the experiment attorneys and secretaries were trained to design automated practice systems. The authors analyze the results of this experiment and draw some preliminary conclusions about the future usefulness of automated law practice systems.
The Ethics of Corporate Lawyers: A Sociological Approach
Authors: Slovak Jeffrey S.
Published: July 2006

The American Bar Association is considering a revision of its Code of Professional Responsibility. One revision deals specifically with lawyers whose clients are organizations; it attempts to delineate the ethical responsibilities of such lawyers when they discover an employee or a member of one of their clients is engaged in wrongdoing on the organization's behalf. Because the proposal suggests that corporate counsel may be justified in public disclosure of the wrongdoing when the organization itself fails to rectify the problem, it has sparked much controversy in the profession and much speculation as to whether and when corporate counsel will “blow the whistle.” The article offers a sociological perspective on the act of a corporate counsel's public disclosure of organizational wrongdoing. The act of disclosure is treated as a social behavior, the likelihood of which is increased or decreased by a number of factors including the attorney's awareness of the wrongdoing, the attorney's orientations to the larger profession, the structure of the professional practice setting within which the counsel is located, and the supports for disclosure offered by the legal profession through its formal organizations. These factors are described and then combined into a general predictive model of disclosure by corporate counsel. A concluding discussion of the general ramifications of the proposed revisions focuses on the social implications of the attorney-client privilege, in which the client is as unique an actor as is the large organization.
Lawyer Advertising and the First Amendment
Authors: Andrews Lori B.
Published: July 2006

A current Supreme Court case concerning lawyer advertising, In re R.M.J., is analyzed in the context of a discussion of the diverse state regulations governing lawyer advertising and solicitation. The article considers the regulations in terms of their constitutionality, their tendency to impede effective advertising, and the effect they have on the legal profession's provision of information to potential clients about the nature, availability, and cost of legal services. Analysis of the major commercial speech cases, from Virginia State Board of Pharmacy to Central Hudson, indicates that many state rules infringe on attorneys' First Amendment rights.
Special Masters in the Pretrial Development of Big Cases: Potential and Problems
Authors: Brazil Wayne D.
Published: July 2006

This article explores the advantages and disadvantages of referring discovery matters in complex cases to special masters. In the first section Brazil explains how the results of his earlier research into the discovery system exposed problems that the appointment of masters might help solve. He then describes the kinds of pretrial tasks and roles federal courts have assigned to special masters and the ways that using a master can expedite and rationalize the case development process. In the second half of the article, the author assesses the major objections to delegating judicial responsibilities to masters and the problems that frequent appointments might cause. Along the way, Brazil offers practical suggestions to judges about how to avoid potential difficulties and how to maximize the effectiveness of this increasingly popular procedure.
Judicial Management of the Pretrial Process in Massive Litigation: Special Masters as Case Managers
Authors: Hazard Geoffrey C. , Rice Paul R.
Published: July 2006

This article reports on the experience of Special Masters appointed to regulate pretrial phases of a large civil antitrust suit. It describes techniques for expediting discovery, determining claims of privilege in production of documents, establishing stipulations of undisputed facts, and controlling and resolving disputes arising in discovery. It suggests a “managerial” approach to pretrial that is flexible and experimental and that may be useful in controlling the pretrial phase of other “big” cases.
Ranking the Law Schools: The Reality of Illusion?
Authors: Van Alstyne Scott
Published: July 2006

This article examines the problems inherent in any endeavor to rank law schools on a qualitative basis. Analysis of possible ranking criteria forces the conclusion that attempting to assign specific rankings based on objective criteria is a futile task. However, objective tests are suggested which indicate, on application to available data, that about 40 of the approximately 165 ABA-AALS-accredited law schools are of superior quality and differ among themselves only as to an image of prestige.
Freedom of Speech in Union Representation Elections: Employer Campaigning and Employee Response
Authors: Lachman Judith A.
Published: July 2006

In 1977 the National Labor Relations Board announced that it would no longer probe the truth or falsity of statements made in the course of representation campaigns. This decision, Shopping Kart Ford Market, overruled longstanding Board policy and was itself overruled the following year. Now, in August of 1982, the Board has again made a commitment to nonprobing and has reinstated the Shopping Kart standard (Midland National Life Insurance Co.,___ N.L.R.B.____, 110 L.R.R.M. 1489 (1982)). Such seesawing of Board positions suggests the difficulty of attempting to protect freedom of speech while simultaneously supporting other national labor policy goals, including employee freedom of choice and the integrity of representation elections. Critical to determining the appropriate standard for campaign speech is an understanding of how employees respond to misrepresentations or coercion in an employer's campaign rhetoric. This paper investigates the relationship between employer campaigning and employee response. Both employer and labor organization will have incentives to prevent coercive or misrepresentative speech at certain levels of violation severity. But in an intermediate range of speech in which that is not the case, the Board has a unique role to play in protecting the rights of individual employees and the public interest in the integrity of elections.
Moonlighting in Law School: A Multischool Study of Part-Time Employment of Full-Time Students
Authors: Pipkin Ronald M.
Published: July 2006

The part-time employment of full-time law students is a significant aspect of contemporary legal education. Successful socialization and training in law are presumed to require the undivided time, effort, and commitment of students. Part-time employment, therefore, is commonly believed to siphon those scarce personal resources away from the central task of legal education. This multi-school study of a sample of 1,370 law students attempted to determine the significant ways in which employed students were differentiated from nonemployed classmates in finances, attitudes, and uses of time, and whether type of law school and student's year in school had effects on patterns of student employment.

The incidence of part-time employment, while strongly related to personal financial resources, was found to be equally influenced by the type of school attended and year in school. While those settings varied substantially in the degree of permissiveness toward student part-time employment, students employed part time could not be distinguished statistically from their nonemployed classmates in terms of levels of involvement in law school or their levels of morale. Both temporal and attitudinal disengagement from law school were found to be commonplace among upper-class students in all school settings, but part-time employment did not appear to contribute to it uniquely.
The Changing Structure of Opportunity: Recruitment and Careers in Large Law Firms
Authors: Nelson Robert L.
Published: July 2006

Growth and bureaucratization have begun to transform patterns of recruitment and career development in large law firms. Based on a case study of four large Chicago firms, this article examines these changes and their implications. The findings indicate that the social composition of large firms has become substantially more heterogeneous with respect to the status of law school attended, gender, and ethnoreligious background. However, data on lawyers' careers suggest that associates entering firms today face an increasingly bureaucratic organizational context marked by higher levels of turnover, earlier and more intensive specialization, decreased levels of client responsibility, and more frequent assignment to large-scale litigation. The article also addresses the dynamics of individual choice over type of work performed in firms. Lawyers initially working in litigation fields are far more likely to change fields of practice than are lawyers who begin in office practice fields, reflecting the increased tendency for firms to assign new associates to litigation as well as the alienating propensity of large-firm litigation for many associates. Paradoxically, a greater proportion of lawyers in traditionally organized, general service firms than in bureaucratically organized, specialty firms report that their choice of work was dictated by the firm. Also, somewhat surprisingly, the frequency with which firms explicitly direct lawyers into particular fields has not increased from earlier periods. The article concludes that these anomalies result from the fact that firms control the career choices of lawyers, and always have, but that the way such control is exercised varies across firms and historical periods.
Shareholder Coordination Costs, Shark Repellents, and Takeout Mergers: The Case Against Fiduciary Duties
Authors: Carney William J.
Published: July 2006

When a bidding corporation succeeds in obtaining voting control of a target corporation through a hostile tender offer, many commentators argue that it is unfair to allow the bidder to exercise its voting power to set the price terms of a second-step takeout merger in which the bidder purchases the shares of the remaining target shareholders. This concern is inappropriate because it treats a unitary acquisition between adversaries as if it were two separate transactions–the second of which involves abuse of power by fiduciaries–and also because it assumes that shareholders of the target corporation are incapable of protecting themselves from the power of a successful bidder. Moreover, imposition of fiduciary rules may impose either prohibitive costs or absolute barriers to some takeovers, even if such transactions would be wealth producing. While there is a risk that some takeovers may exploit the “prisoner's dilemma” facing target shareholders threatened with an unattractive takeout threat, target shareholders are capable of responding to that threat with devices to coordinate their response. So-called “shark repellent” amendments that raise the proportion of votes required to approve second-step mergers or that limit the terms of such mergers can function as coordination devices to alleviate the prisoner's dilemma. Commentators' fears that such devices may unduly burden the market for corporate control appear to depend to a large extent on unfounded assumptions that all takeovers are wealth producing and that takeovers are never motivated by potential gains flowing from exploitation of the lack of coordination among target shareholders. However, empirical studies indicate that adoption of such coordination rules can benefit target shareholders and that it is unlikely that shareholders will approve voting rules so restrictive that they would preclude wealth-creating acquisitions. The usual notions of shareholder apathy are simply inapplicable to takeout mergers.
The Zeal of the Civil Advocate
Authors: Schwartz Murray L.
Published: July 2006

This article is concerned with the accountability of the civil advocate for results obtained for a client. It distinguishes the criminal trial by arguing that for effective implementation the adversary system, as it is commonly understood, requires that the professional advocates be equally competent and equally adversary and that because it does not meet these criteria, the criminal trial cannot be looked to as a model either of the adversary system or of the behavior of advocates in the civil trial. Rules of behavior for the civil litigator should be drawn with the primary objective of ascertaining truth. Moreover, the civil litigator cannot claim immunity from moral accountability by reference to the lawyer's role; he or she is personally accountable for an immoral result obtained for a client. Seeking to avoid this accountability all lawyers might reject an immoral but lawful cause, so that persons with such causes would be deprived of professional representation. The conflict between the lawyer's personal morality and the social value of professional assistance is resolved by reference to a formula for assigning counsel similar to those in Mathews v. Eldridge and Lassiter v. Department of Social Services. The author analyzes the moral dilemma of a lawyer who is so assigned and proposes a solution.
Participation and Rules- The Functions of Zoning
Authors: Steele Eric H.
Published: July 2006

Data from a case study of piecemeal zoning change suggest that the decisions of citizen zoning boards of appeal are neither lawless nor ineffective. The bulk of requests that come before them are for minor dimension or use variances and are typically allowed unless there is local opposition. The proportion of changes granted varies with the degree of clash between a proposed use or structure and the preexisting local land use-the “character of the community” (particularly in single-family residential areas). Expressions of opinion (positive or negative) by current neighbors and other community members are given heavy weight in zoning decisions.

Despite criticism of zoning boards as defective and illegitimate legal institutions and calls for their abolition, they have remained popular and extremely resistant to change. This is because zoning boards have evolved beyond their explicit rule enforcement functions to also play important dispute-settling and community maintenance functions in the contemporary urban setting. These functions of zoning can only be understood in terms of a participatory model of legal process where legal rules serve to identify situations and trigger sociopolitical processes as much as they serve as substantive norms to be enforced.
Moving the Goalposts: Financial Market Regulation in Hong Kong and the Crash of October 1987
Authors: Gunningham Neil
Published: July 2006

The article examines the operation of the Hong Kong stock and futures exchanges during the crash of October 1987 and in particular the controversial decision to close the exchanges. It argues that the closure decision exposes a serious conflict of interest and abuse of power on the part of the major decision makers and fundamental flaws in Hong Kong's self-regulatory system. Moreover, these events raise broader questions about the strengths and weaknesses of different regulatory regimes and about the value of different theoretical explanations of regulatory behavior. In particular, it is argued that the most influential theory concerning the regulation of financial markets—that of certain Chicago School economists—raises as many questions as it answers, and that an alternative view which locates cultural and organizational factors at its core provides a more satisfactory explanation of the events of October 1987.
Practice and Paradox: Deconstructing Neutrality in Mediation
Authors: Cobb Sara , Rifkin Janet
Published: July 2006

Based on our research on the practice of neutrality in mediation, we deconstruct the practice of neutrality in mediation by examining both the discourse of neutrality operant in mediators’ accounts of their practice and the discourse processes in mediation sessions. We identify three key terms—justice, power, and ideology as a system of terms central to the rhetoric of neutrality. We challenge existing definitions of neutrality in and by analyzing the discourse processes in mediation practice, which allows for an alternative description of neutrality as a practice in discourse.
The Power of Language in Adjudication and Mediation: Institutional Contexts as Predictors of Social Evaluation
Authors: Morrill Calvin , Facciola Peter C.
Published: July 2006

The language used by witnesses and litigants can powerfully influence evaluations by legal decision makers of disputant credibility and blame. Previous experimental research has addressed this claim in many studies of undergraduates and law students. It is not known whether this generalization applies to sitting judges or whether it extends to other institutional contexts in which dispute settlement occurs, such as mediation centers. In this article we present findings from three experiments conducted with undergraduates, sitting judges, and practicing mediators. Speech style (powerful, powerless) and discourse (rule, relational) were manipulated in a 2×2 repeated measures design in each subject pool. The findings suggest that students' and judges' evaluations of disputant credibility, social characteristics, and blame are affected by speech style, while mediators' evaluations of the same are affected by particular interactions of speech style and discourse only. These findings are interpreted as a function of the prescriptive and behavioral language norms to which students, judges, and mediators are routinely exposed in their institutional contests. Implications for future law and language research are also discussed.
Mrs. John Marshall Harlan's Memories: Hierarchies of Gender and Race in the Household and the Polity
Authors: Przybyszewski Linda C. A.
Published: July 2006

While legal papers and case decisions have been the traditional focus of judicial biography, the family papers of Justice John Marshall Harlan the Elder demonstrate the importance for understanding a judge's conception of the polity of shifting our sights to the household. Historians of the 19th century have overestimated the distance between the private and the public spheres. The memoirs of Harlan's wife Malvina offer us unparalleled, and hitherto neglected, testimony. Her depiction of the antebellum Harlan household shows its two hierarchies based on assumptions of fundamental differences—those of gender and of race—and both positing a benevolent white male paternalist at their apex. Malvina Harlan's memoirs indicate the lifelong persistence of this paternalism in her own relationship with Justice Harlan and in his relationship with a black servant. These patterns of hierachy, separation, and mutual devotion were essential to Harlan's understanding of his family identity and personal duty. His famous dissents in favor of black civil rights protections and his lapses from his color-blind rule have their roots in this paternalism even as Harlan came to embrace the racial egalitarianism of the Civil War amendments.
The Impropriety of Plea Agreements: An “Anthropological” View
Authors: Weisberg Robert
Published: July 2006

David Lynch nicely captures what John Langbein has denounced as the “torture” of plea bargaining. Langbein's wickedly suggestive essay traced modem criminal trial practice back to medieval criminal systems in which the body of the defendant became the victim in a social sacrifice. The modern analog, for Langbein, is that the Warren Court due process revolution “guaranteed” defendants a wide variety of procedural rights that society simply cannot afford (or, Lynch would say, refuses to afford) them. The result is the outrageously generous offer the state makes to the defendants. Put somewhat differently, this sort of “incentive system” plays mind games with the much-touted principle of autonomy built into the due process/waiver model. If trials establish an automatic “risk-preferring” principle on defendants, plea bargaining tempts them with a risk-averse alternative they might well wish they had never been offered. It is both more choice and less freedom. Plea bargaining forces a “normatively thinking” defendant into the world described by Judge Easterbrook in a parallel wickedly suggestive essay, in which he portrays bargaining as the cost system for rendering into usable averages all the predictive doubts we may have about the defendant's chances of winning on both substantive and procedural grounds.
Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law
Authors: Constable Marianne
Published: July 2006

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?
Thinking Nonsociologically about Sociological Law
Authors: Constable Marianne
Published: July 2006

Nietzsche is a notoriously difficult philosopher to follow. As he himself wrote, he was not interested in followers. Those who read Nietzsche and care to engage in his thought, then, cannot say that they have not been warned as to its inhospitable character.

That that character is still an issue becomes manifest in two of the four responses to “Genealogy and Jurisprudence.” The responses of Frank Munger and of Christine B. Harrington and John Brigham fail to grasp what is at stake in the claim that Nietzsche can help us to think about “the complicated character of current relations between law and social science” (GJ4 at 554).
Accounting for the “Second Assault”: Legal Organizations’ Framing of Rape Victims
Authors: Martin Patricia Yancey , Powell R. Marlene
Published: July 2006

What organizational and community conditions influence legal officials to treat rape victims “unresponsively”? Our analysis is guided by Goffman's theory of organizational frameworks and frames of activity and March and Olsen's institutional theory of organizations. Using data from 130 organizations in Florida that process rape cases, we compare six types of organizations (including hospital emergency rooms and rape crisis centers) on eight criteria and review their frameworks and frames of activity relative to unresponsiveness. We use the issue of victim legitimacy to illustrate the utility of our model. Our results show that well-meaning staff in legal organizations are oriented to routinely treat victims unresponsively. Their organizations routinely orient them to be concerned with, for example, public approval, the avoidance of losing, and expediency more than with victims' needs. In our conclusion, we identify ways legal officials and rape crisis centers can promote responsive treatment of victims. We also call for research on legal organizations that are responsive to victims and for a nationwide discourse on the “politics of rape victims' needs” as a means of addressing the gender inequality issues that underlie rape crimes and laws and orient legal officials to treat victims unresponsively.
Criminological Science and the Criminal Law on the Colonial Periphery: Perception, Fantasy, and Realities in South Africa, 1900-1930
Authors: Chanock Martin
Published: July 2006

This article, by framing criminology and criminal law together, suggests that in the early years of the South African state both bodies of discourse served to evade reality and to construct a sense of self and other as a part of the development of the administration of South African criminal law. It considers the derivation of South African criminology from contemporary metropolitan formulations. South African legal doctrine and practice likewise depended on extra-South African sources. These imported discourses provided lenses through which a descriptive confrontation with the realities of the processes of criminalization, and the administration of criminal justice could be avoided precisely by hose “expert” in these fields. Instead, science and law, far from being pragmatic disciplines, provided the means by which to fantasize about the nature of white justice and black criminality.
Law in and Legitimacy South Africa
Authors: Ellmann Stephen
Published: July 2006

This mticle examines whether anti-apartheid lawyering might have legitimized the South Afncan legal system by asking what black South Ahcans actually thought of that system. Perhaps surprisingly, blrcks, and in particular African, appear to have accorded the legal system a measure of legitimacy despite the oppression they often suffered at its hands. Three paradigms of African opinion are offered to help us understand the complex African response to the legal system: the conservatives, forbearing, mutely concerned with such issues as order and security, and perhaps disposed to be deferential to institutions of white authority; the speakers, fueled by faith in the truth or power of their speech, and welcoming the opportunity to be heard that courts could povide; and the activists, adamantly detennined to bnng down apartheid, and judgrng institutions and people by their conhibution to that goal. For men and women thinking in these ways, anti-apartheid lawyering probably did contribute to legitimizing the legal system and that system's ideals. But this partial legitimation of the legal system is, in the end, no came for regret; instead, it may have helped the new South Africa begin building a nation governed by law.
The Antinomy of Public Purposes and Private Rights in the American Constitutional Tradition, or Why Communitarianism Is Not Necessarily Exogenous to Liberal Constitutionalism
Authors: Gillman Howard
Published: July 2006

Not long ago it was a central feature of critical scholarship that “liberal legalism” was beset by a set of antinomies that, when exposed, never failed to undermine overblown claims of law's majestic neutrality. In project after project, scholars demonstrated that beneath the smooth veneer of interlocking principles were conflicting doctrines that could be drawn upon creatively as judges saw fit. At the same time that contract law insists that the will of parties shall not be second-guessed, it accommodates the possibility that the parties made some mistakes or that agreed-upon terms might be commercially impracticable or even unconscionable. While the criminal law generally assumes that human behavior is intentional, it also relies extensively on deterministic discourses in doctrines such as duress, necessity, and provocation. Cutting across particular lines of doctrine were arguments about how the form of law under liberalism vacillated between a reliance on fixed rules and a reliance on flexible standards and how it also embraced simultaneously a formalist logic and a consequentialist one.
What's Wrong with “Negative Liberty”
Authors: Oakes James
Published: July 2006

On 5 January 1879, the Chicago Tribune published an interview with Karl Marx that had been conducted in London a few weeks earlier. In the course of the interview Marx clarified the platform of the International Society as it had been established at Gotha in 1875. The platform was a litany of liberal reforms: universal male suffrage in all elections, popular referenda on issues of war and peace, the abolition of a standing army matched by universal military duty, the abolition of all laws regulating the press and public assemblies, free legal counsel and jury trials, universal public education, freedom of science and religion, a progressive income tax, legal restrictions on the length of the working day, the abolition of child labor, sanitary laws guaranteeing the safety of the living and working conditions of labor, and restrictions on prison labor.
Closing the Gaps: Plaintiffs in Pivotal Sexual Harassment Cases
Authors: Marshall Anna-Maria
Published: July 2006

When he wrote Debtors in Court almost 30 years ago, Herbert Jacob laid the foundation for the legal mobilization research that has flourished in recent years. In arguing that litigants were political actors, Jacob showed that their social identities and communications networks influenced their decisions to use the power of the law to vindicate their interests. This paper builds on Jacob's original insights to analyze the origins of the claim for sexual harassment as a Title VII violation. By focusing on the women who filed those claims, the paper examines the interaction of class, gender, and race that created social distance between the women and their harassers and employers. This distance made informal resolution of their disputes impossible, requiring the intervention of third parties. In addition, their communications networks led them to attorneys able to generate and expand the new claim for sexual harassment. This analysis of a particular moment in legal history reveals the potential political significance of private litigation.
Legitimacies, Indian Identities, and the Law: The Politics of Sex and the Creation of History in Colonial New England
Authors: Plane Ann Marie
Published: July 2006

In an early-eighteenth-century legal contest on Chappaquiddick Island, Massachusetts, an Indian leader, Jacob Seeknout, appealed a ruling that undermined his political authority. Seeknout's lawyer, Benjamin Hawes, crafted an argument that intertwined the sexual legitimacy of Seeknout's ancestors with his political legitimacy; at the same time, Hawes also linked Indians' collective chastity as a “nation” to their sovereign status. This paper examines the economic, religious, criminal, and historical contexts of this argument, exploring the history of Indians' conjugal practices and their reinvention as the criminal acts of fornication. The case illustrates some of the diverse sources of early American law, links between these legal structures and colonialism, and the importance for scholars of attending to the local level in exploring the power of colonial law to shape new racial identities.
Reconfiguring Law: An Ethnographic Perspective from Botswana
Authors: Griffiths Anne
Published: July 2006

Using two marital disputes, this article examines women's experiences in bringing legal claims regarding family property in Botswana. It highlights the ways women draw on diverse economic and social resources available to them through their differing positions within gendered social networks that shape daily life and affect the ability to access and manipulate a legal system incorporating Tswana customary law and European law. The divergent discourses among women and between women and men document how the administrative and theoretical separation of legal systems does not extend to people's uses of the law in arranging their own lives. This analysis challenges the formalist model of legal pluralism by demonstrating that legal arguments are constructed from the gendered social and economic facts of individuals' lives that traverse the legal categories of European and customary law. It also contributes to feminist legal scholarship by explicitly marking the links among gender, power, and law.
When Businesses Sue Each Other: An Empirical Study of State Court Litigation
Authors: Cheit Ross E. , Gersen Jacob E.
Published: July 2006

Using a mixture of court docket data and case files, we construct a data set of business litigation in Rhode Island Superior Court during 1987 and 1988. Business litigation is defined as a suit involving an economic firm as both a plaintiff and a defendant. The empirical analysis complements recent scholarship providing answers to descriptive questions about the frequency, nature of, parties to, and intensity of the business litigation docket. Using Standard Industrial Classification (SIC) codes, indicators of industry participation in litigation are developed, and positive analysis undertaken to explain variation across industries. Several hypothesis are developed and tested using quantitative analysis. We conclude that contextual economic conditions favoring the creation of long-term business relationships help prevent litigation between firms.
Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities
Authors: Tyler Tom R.
Published: July 2006

A key problem in trying to manage diverse societies is finding social policies that will be acceptable to all individuals and groups. Studies suggest that this problem may not be as intractable as is often believed, since people's acceptance of policies is shaped to an important degree by the fairness of the procedures used by authorities to make policy. When policies are fairly made, they gain widespread support, even among those who may feel that the consequences of the policy for them or their group are undesirable or even unfair. These findings support an optimistic view of the ability of authorities to manage diverse societies. On the other hand, research suggests that the ability of procedural justice to bridge differences among individuals and groups may not be equally strong under all conditions. People's willingness to accept policies is more influenced by procedural justice judgments when they identify with the society that the authorities represent and view them as representing a group of which they are members. They are less influenced by procedural justice judgments when they identify more strongly with subgroups than with society and/or view the authorities as representatives of a group to which they do not belong.
Bureaucratizing Democracy, Democratizing Bureaucracy
Authors: Espeland Wendy Nelson
Published: July 2006

This article analyzes the relationship between how rationality is conceived and how democracy is practiced in the Bureau of Reclamation, a water development agency in the Department of Interior. The efforts of some inside the agency to institutionalize rational decision-making models, partly in response to new environmental law, expanded the number and range of interest groups that participated in its decisions fry incorporating their preferences into their models for evaluating plans. But the terms under which people could express their values and interests were strictly controlled in ways that some felt misrepresented their concerns. How we conceive of rationality has important implications for how and which people are included in bureaucratic decision making.
“Bad Mothers” and the Threat to Civil Society: Race, Cultural Reasoning, and the Institutionalization of Social Inequality in a Venezuelan Infanticide Trial
Authors: Briggs Charles L. , Mantini-Briggs Clara
Published: July 2006

A society which penalizes some children because they are not white, others because they are not male, indoctrinating in them a sense of worthlessness, can still lay the blame for the waste of its young on the bad mothers who have somehow failed to be superhuman, who have somehow failed to rear, in a callous and ruthless social order, welladjusted obedient, achieving, nonalienated children.

—Adrienne Rich, On Lies, Secrets, and Silence: Selected Prose 1966-1978

Suffering from abdominal pain, a young woman in eastern Venezuela went to a physician. The physician did not examine her but injected her with a sedative and sent her home to the place where she worked as a domestic. Awakening with intense cramps, she went to the bathroom and gave birth to a girl, who fell into the toilet bowl. On the basis of what was construed as a confession, her employer's statement, and medical testimony, the woman was convicted of homicide. The major issue was the legal significance of her racialization as “indigenous.” We suggest that her trial shows how courts construe structural violence directed against poor women of color as criminal conduct; ironically, this transformation was effected through culturally based arguments, presented by the defense, which claimed that the woman was ignorant of “Western culture” and Venezuelan legal norms, including the prohibition against infanticide. In the face of a cholera epidemic, dominant institutions used the case to suggest that “indigenous culture” could explain hundreds of deaths. Comparison with trials in the capital indicates that as globalization forces some 80% of Venezuelans into poverty, these widely publicized trials turn stereotypes of poor citizens as impoverished, immoral, and criminal into arguments that legitimate the repressive functions of the nation-state.
Confirmative Action
Authors: Guinier Lani
Published: July 2006

Lempert, Chambers, and Adams's study of the careers of three generations of students of color admitted to the University of Michigan Law School fills several important gaps in our knowledge about the consequences and implications of affirmative action protocols in law school admission. First, it provides empirical data for the argument that conventional test-based admission policies both mask and support deep flaws in the way we allocate opportunity and privilege.