Showing papers in "Law and Social Inquiry-journal of The American Bar Foundation in 1997"

Creating Convergence: Debiasing Biased Litigants

Abstract: Previous experimental research has found that self-Serving biases are a major cause of negotiation impasses. In this study we show that a simple intervention can mitigate such biases and promote efficient settlement of disputes.

The Politics of Imperfection: The Amendment of Constitutions

Abstract: The essays in Responding to Imperfection (ed. Sanford Levinson) can be read narrowly, as explorations of a set of relatively technical issues in American constitutional law, or broadly, as investigations into the political theory of constitutionalism. The narrow focus is on article 5, which specifies the ways that the U.S. Constitution may be amended. Are the procedures of article 5 exclusive, or may the Constitution be amended in other, unspecified ways? Are there any limitations on which parts of the Constitution may be amended (whether by article 5 procedures or by others, if any), or are parts of the Constitution off limits to such procedures, and if so, what is the extent of this entrenchment? These questions of the nature and limits of the amending powers, endlessly fascinating to students of American law, are the subject of sharp and lively dispute in this volume, and the varied and thoughtful answers given themselves justify the purchase of the book. But editor Levinson has shaped this volume to address much broader questions. How can we understand constitutional change? Do formal amendments account for much or most constitutional change, or at least for the most politically significant ones? Or, as some authors argue, have most truly significant constitutional changes occurred either outside the document or as a direct effect of external political or social changes? Are there rules or conventions that limit or specify which kinds of constitutional

Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Abstract: Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as “sexual outlaws” to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's ca-pacity to invoke fundamental legal rights, the law effectively sanctions “private” or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.

Too Little, Too Late: Prosecutors' Pre‐court Preparation of Rape Survivors

Abstract: Little research has been conducted on the behaviors of prosecuting attor-neys and their interactions with rape survivors between charging and court events. Yet this period, during which prosecutors prepare rape survivors for their witness roles, may be crucial for obtaining successful convictions. Using intensive interviews with 32 rape survivors and background interviews with prosecutors, victim witness advocates, and rape crisis workers, I evaluated the nature of directives and information given to rape survivors and the frequency with which directives were conveyed before preliminary hearings and court events. I concluded that prosecutors employ 20 modes of preparation to construct rape survivors as credible victims for judges and jurors. They orient the rape survivor to the scope of the witness role and her place in the interaction with legal actors, direct her to enhance the credibility of her story, and enhance the credibility of her self'presentation. Research showed that prosecutors prepared respondents more thoroughly for trials than for preliminary hearings, but little overall. A large minority of respondents, consequently, reported dissatisfaction with the preparation they received. On the basis of the findings, I call for an extension of Martin and Powell's “politics of victim's needs,” attention to the importance of maintaining a perception of procedural justice among rape survivors, and further research into pre-court preparation.

Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery

Abstract: Forecasting earthquakes is a difficult business: locating fault lines that lie deep beneath the surface of the earth; estimating friction and force; predicting the effects of the cataclysm upon the world above. Though the job of historians is characterized by the same sorts of questions-isolating the grand threads of history that underlie their accounts; estimating the causal forces of evident tensions; relating deep structures to specific events-they seem at first to have a slightly easier task than do earthquake forecasters; after all, the events they describe have already happened. But look again, and the historian's job seems the harder one. For historians there is no simple chain of causation that can be used to explain every event, no certainty that an impulse comes from underground and that its effects will be evident on the surface, no agreed-upon account of what happened that points to a ready-made version of why it happened. The problem is human agency, and it makes the job of historians like predicting earthquakes at a time when people on the surface of the earth are dropping bombs on fault lines. In the history of the law of slavery this problem has taken a particular form: that of relating the underlying circumstances-economic and ideolog-

Authority by the Numbers: Porter on Quantification, Discretion, and the Legitimation of Expertise

Abstract: What explains the prestige, power, and ubiquity of quantification in the modem world? Like many straightforward, well-asked questions, this one is complicated to answer. But Theodore Porter, a historian of science, has come up with an original, provocative, and surprisingly parsimonious answer. Numbers, Porter argues in this carefully crafted, elegantly written book, are a technology of distance. Their authority derives from their capacity to create and overcome distance, both physical and social. To scientists dispersed around the world, numbers offer the common language of quantity, while imposing a universalizing discipline that transcends the physical and cultural distance between them. This discipline that brings proximity erects at the same time, however, a new form of distance because it erases the local, the personal, and the particular. Standardizing calculations makes the characteristics of those creating and manipulating the numbers less salient, inserting distance between the numbers and their users. This simulta-

"A Very Eden of the Innate Rights of Man"? A Marxist Look at the European Union Treaties and Case Law

Abstract: 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.

“You Were Interested in Him as a Person?”: Rhythms of Domination in the Kennedy Smith Rape Trial

Abstract: 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.

Gauging the Strength of Evidence Prior to Plea Bargaining: The Interpretive Procedures of Court‐Appointed Defense Attorneys

Abstract: An important debate among court observers is whether plea bargaining undermines the ideals of justice. This article presents findings that may rec-oncile some inconsistent research conclusions. It describes how, prior to plea bargaining, one group of court-appointed defense attorneys gauges the strength of evidence through a tacit, taken-for-granted process that emulates trial proceedings: based on their understanding of evidence in the legal community, defenders imagine a courtroom dialogue wherein the prosecution and defense take turns presenting their cases in front of a judge and jury. At issue throughout the dialogue is whether or to what extent information is suffident, legal, and persuasive enough to convict the defendant. Because the process is part of the defenders' ongoing and unspoken daily routines, it may elude unsuspecting investigators. Ironically, this means not only that some analysts may inappropriately conclude that legal ideals play no role in plea bargaining but also that others may ingenuously assume that such behavior is more ethical than it actually is.

Empty Ethics and Reasonable Responsibility: Vocabularies of Motive among Law and Business Students

Abstract: Despite professional nonns of being socially responsible and providing service to the underprivileged, the attitudes of law students toward ethical duties and public service bear similarities to those of business students. Using data from multiple interviews with luw and business school students at one university, 1 find that these attitudes develop in response to the expectations of peers and professors during school experiences. Ethics courses are marginalized by the schools, and courses focus on such pragmatic issues as the professional code of conduct (law school) or how the appearance of social responsibility affects the bottom line (business school). Provided with little guidance on what they might do when they encounter real ethical dilemmas, students karn vocabularies of motive concerning how lawyers and managers should balance profits, cany out responsibilities to various stakeholders, and weigh ethical concerns, and they then moderate their own expressions of extreme self-interest or self-sacrifice. Both groups learn to maintain social responsibilities only within reason, emphasizing the separation of work from personal convictions. These elements have implications for the perfonnuwe of public service in their future careers, as well as for a scholarly understanding of professionalism.

Institutional Choice and Political Faith

Abstract: Public law in the post-New Deal era has been profoundly influenced by a rising tide of pessimism about the role of interest groups. Oversimplifying greatly, one can divide the last half century into three phases in terms of the conventional wisdom about interest groups and their perceived impact on public law. The first phase, which lasted from roughly the mid-1930s to the mid1960s, was a period of relative optimism about the impact of interest groups. By and large, academic commentators during these years were confident that the political institutions of democracy could either neutralize or harness the parochialism of groups and thereby develop policies in the "public interest." This generalization lumps together two otherwise disparate strands of thought. It includes, on the one hand, the scientific management school associated with James Landis (1938), who thought that the answer to interest group influence was to insulate expert administrative agencies from ordinary politics. It also includes pluralists like David Truman (1951), Earl Latham (1952), and Robert Dahl (1961), who believed that competition

Does the Chicago School Need to Expand Its Curriculum

Abstract: There is much debate among economists and other social scientists about the merits of the "Chicago School" approach to explaining and assessing the operation of legal regimes and other social institutions. In these debates the Chicago School label is rather indiscriminately applied to a quite diverse group of scholars. There is some justification for the use of this term; the persons so described do generally share certain characteristics. They all apply basic microeconomic principles in a relatively rigorous fashion in their analyses of legal questions, and they use much the same basic descriptive categories, behavioral assumptions, and core normative premises. However, within these general contours of agreement there is still significant diversity of outlook and approach. Moreover, few if any Chicago School scholars resemble in any way the pejorative popular caricature of the zealot analyst who uncritically applies basic price theory to describe and evaluate real-world situations without regard to unique local conditions and complexities and without regard to normative principles other than efficiency. Law and Economics: New and Critical Perspectives, a collection edited by Robin Paul Malloy and Christopher Braun, presents a baker's dozen short

Market Talk: Competition Policy in America

Abstract: A dreary debate has occupied the antitrust community over the past 25 to 30 years. The debate is a more elegant, scholarly version of the commercials for Miller Lite beer that ran during much of the same period. In the beer commercials, one group of modestly recognizable celebrities and personalities of the day shouted "Tastes great" while the opposing group shouted "Less filling." This was the extent of the debate. The antitrust equivalent of this debate involves distinguished academics and policymakers arguing whether antitrust law and policy should be "more efficient" or should incorporate "greater fairness." Both schools of thought have enjoyed their periods of supremacy. The more economically oriented efficiency camp, normally dubbed "The Chicago School," has reigned supreme since the mid-1970s as its narrower version of antitrust policy has been adopted by the Supreme Court, has been relied upon by the Reagan and Bush administrations, and has persuaded the majority of commentators. Today, that ascendancy is in jeopardy as the politics of the Clinton administration, new economic theories, and the globalization of the economy have led to actions more in line with the preferred outcomes, if not the reasoning, of the beleaguered fairness advocates.1

Interdisciplinary Gap Filling: Game Theory and the Law

Abstract: More than a half century has passed since John Von Neumann and Oskar Morgenstem published their pioneering work that provided the foundations for the field now known as "game theory."' By redirecting analytical focus away from a static environment (where individuals merely "react" to their surroundings) and toward a strategic one (where each individual's very surroundings depend centrally on others' reactions), game theory offered a fresh account of human behavior that was descriptively richer and more satisfying than most of its predecessors. In the decades since, the emergent field has cultivated significant advances not only in economics and finance, but also in disciplines as diverse as psychology, biology, political science, and eventually, law. Indeed, by the beginning of this decade, prominent law reviews began to provide a steady stream of articles utilizing the game-theoretic approach. It was therefore hardly surprising when in 1994, Douglas Baird, Robert Gertner, and Randal Picker (all of the University of Chicago) published Game Theory and the Law, which represents the first comprehensive manual

American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity

Abstract: As the 20th century draws to a close, Americans find themselves in a bit of a crisis: not quite sure who they are, not quite sure why it matters, but sensing a void in identity and place. America is, after all, largely a society of immigrants. First-grade classroom teachers call on students to tell about their family "heritage," most often derivative of other places-England, Ireland, Italy, Iran, Germany, Japan. By fifth or sixth grade, however, history and social studies classes focus on our common heritage as "Americans" and emphasize our "American" values, such as liberty, democracy, and equality. The "melting pot" ideology of a century ago, which held out promise and opportunity to every immigrant, continues. Or so we are told. On college applications, prospective students are required to check boxes describing ethnicity. Minority student associations on college campuses struggle with definitions of "Hispanic" or "Black" and divide over whether to admit students of other ethnicities to membership. Voters are asked to identify themselves as residents of a certain state and members of a particular political party. Community groups fume over redistricting decisions that would dilute the minority vote or, alternatively, give minority groups a vote. It seems that group identity and differences are important, after all. And certainly, America would be out of the global mainstream not

History as Explanation: Annals of American Political Economy

Abstract: We read or write history in search of something from the past-be it insight, authority, or escape. For judges and other policy makers, especially those in the common law tradition, history is the most powerful source of political legitimacy. For conservative ideologues and other sentimentalists, the past reflects the best hope for the future. Academic and professional historians, more modest in their demands, seek only explanation. Yet, explanation has proved to be a contentious notion, a subject of longstanding debate among those who write about history. This essay is about current attitudes toward historical forms of explanation. Debate about history as an explanatory narrative has raised two perennial questions: the first about the theoretical justifications for particular historical practices; the second about the use value of the historical accounts produced. For the past 25 years, such debate has flourished in America. In the 1970s, the dominant "consensus" historians' approach was abjured by their pedagogical offspring who viewed history, particularly American political and intellectual history, more in terms of conflict than consensus. At about the same time, the question of originalism erupted in constitutional law scholarship. During those years, Hayden White's Metahistory (1973) emerged as an influential example of analyzing historical explanation as a discursive field with metes and bounds, as a range of practices whose legitimacy is always at issue. In the 1980s, debate raged about the writing of literary, cultural, and intellectual histories and their relationships to an emerging sociology of knowledge identified with Michel Foucault. Part of a

Serving the State: Constitutionalism and Social Spending, 1860s‐1920s

Abstract: In the 19th century, courts supervised states’ social spending by limiting taxation to public purposes. The focus of this article is the courts’ approach to pensions. Under a 19th-century doctrine, states could pay money to those who had served the state or, under the rubric of charity, to those who were the indigent helpless. States first paid pensions to people for military service and for serving as firemen; later in the century, the doctrine from these cases provided a framework for expanding civil service pensions as states expanded their civil service. Courts characterized the earlier pensions as earned because the service had been dangerous, requiring bravery from men and possibly leaving helpless women and children without protection. This characterization later shaped evaluations of civil service pensions. The doctrine persisted as states enacted pensions for widowed mothers; when these pensions were challenged in state courts, the courts approved of them as payments to helpless people, not as rewards to those who had served. This characterization counters recent scholarship that argues that mothers’ pensions rewarded service as military pensions did.

Transitional Justice in Eastern Germany

Abstract: On October 3, 1990, the German Democratic Republic (GDR) ceased to exist. On that celebrated day of German unity, the GDR incorporated itself into the legal and political system of the Federal Republic of Germany (FRG). Economic and social union had taken place a few months earlier.1 After 40 years, a people who had become accustomed to central planning, full employment, and state ownership of almost everything suddenly found themselves compacted into a profit-driven market economy rooted in private ownership. Equally swift was the legal revolution, for Unity Day witnessed the toppling of the GDR's judicial system, along with its superstructure of socialist legality, and its replacement by West German judicial institutions. The hurried changeover touched the lives of all GDR legal professionals judges, prosecutors, lawyers, notaries, and law professors. What some of them encountered and felt in the overnight shift from a socialist legal system to a capitalist one is the subject of Inga Markovits's remarkable book.

Labor Policy and the Social Meaning of Parenthood

Abstract: The article explores an aspect of the debate over the place of women in the paid labor force. Focusing on disputes over “protective” labor policies, “fetal protection” policies in particular, the essay discusses the implications of such policies for the social meaning of parenthood. Using data from inter-views with 49 mothers and 37 fathers of children in neonatal intensive care units, the essay presents evidence suggesting that traditional social values in-herent in female-exclusive labor policies are inadequate when one is dealing with the practical needs of parents. A policy that views women as nurturing and men as economically active resides in assumptions that women have the sole biological connection to children and overly determines a narrow conception of parenthood. The parents in this sample demonstrate the ongoing and complex negotiations involved in parenting, negotiations that labor policies have often ignored.

Salmon P. Chase and Constitutional Politics

Abstract: [Review] John Niven. Salmon P. Chase: A Biography. New York: Oxford University Press, 1995. Pp. xii + 546. $35.00.

The Social and Legal Construction of Repressed Memory

Abstract: Richard A. Leo is an assistant professor of Criminology, Law, and Society at the University of California, Irvine. I am grateful to Jennifer Owen and Christine Washburn for research assistance. I thank Howard Erlanger, Reid Hastie, Horst Helle, David T. Johnson, Suzanne P. Johnson, Kevin Reitz, and Adam Seligman for helpful comments, advice and suggestions. This review essay was drafted in the summer of 1995 and revised in the early summer of 1996. In the late summer of 1996, I began collaborating with one of the authors under review on an unrelated research project studying the causes and consequences of police-induced false confessions. This recent collaboration has not affected any of the conclusions in the following essay.

25 Divorce Attorneys and 40 Clients in Two Not So Big but Not So Small Cities in Massachusetts and California: An Appreciation

Abstract: PETER: Very common. JANE: It's a very common thing. So how many other people are getting the same kind of treatment I am? With what, I presume, is very sloppily handled orders that are passed out. PETER: I did talk to someone in the know-I won't go any further than that-who said that this one could have been signed purely by accident. I mean, that the judge could have-if he looked at it now-said, "I would not sign that," and it could have been signed by accident. I said, "Well, then, how does that happen?" And he said, "You've got all this stuff going; you come back to your office, and there's a stack of documents that need signatures...." -Sarat and Felstiner, p. 89

Still Hazy after All These Years

Abstract: Even after years of practical experience and scholarly commentary, the issue of compensation for regulatory taking is still controversial. At one extreme are those who believe that almost any governmental action that diminishes the value of private property ought to trigger a claim for compensation; at the other extreme are those who believe that the government ought to have almost unlimited leeway to regulate the use of private property to advance the public good. Between these easily discernible extremes are many nuanced positions that seek to define a principled criterion for when governmental regulation that diminishes property values ought to trigger compensation. There is no academic closure on this matter, no widely accepted theoretical standard. Nor is there a clear practical standard to which governmental officials and private attorneys clearly subscribe in their day-to-day decisions, regardless of the confusion in the academy. This academic and practical vacuum has elicited repeated attempts at clarification. The academic world has generated the classic article by Michelman (1967) and its update (Michelman 1987); the passionate, clear, and controversial book by Epstein (1985); and articles by Sax (1964), Blume and Rubinfeld (1984), Rose (1984), Kaplow (1986), Rubinfield (1993), and others. While none of these has proposed a definitive resolution of the issue of regulatory takings, they have collectively done much to clarify how we ought to think about the matter.

Splitting the Difference: The Representation of Ideas and Identities in Modern Democracy

Abstract: Writing in 1788, James Madison observed that "the difference most relied on between the American and other republics consists in the principle of representation, which is the pivot on which the former move, and which is supposed to have been unknown in the latter" (Hamilton, Madison, and Jay 1961, No. 63). While Madison questioned the precision of such conventional wisdom (he noted that the ancients did rely on limited representation), he agreed that American government was unique because it removed the people entirely from all positions of direct legislative power. It was in the new world that political representation had been most completely realized. The prevalence of political representation in early America did not, of course, translate into a clear consensus on how representative institutions ought to be designed. In fact, the new Constitution defended by Madison and his Federalist allies was criticized on the grounds that it established the wrong representative scheme. Madison's Antifederalist opponents believed that the Constitution would create a distant and domineering Congress, filled with representatives who failed to reflect the diversity of local constituencies. This was so because the large electoral districts necessary for the House and Senate guaranteed that only the wealthy had a chance to win national office. Since the Antifederalists viewed the local community as the animating force responsible for limiting political power, they decried government by the rich. Such "lordly and high minded" aristocrats, the Anti-

The Perils of Pandora: Further Reflections on Institutional Choice: [Commentary]

Abstract: The Pandora's box of institutional choice has been opened. Tom Merrill is disturbed by what he sees. He fears despair and difficulty. Since I opened the box, he expects me to clean up the mess. But I cannot. Harsh realities have escaped and they cannot be recaptured. As in the original tale, hope is still in the box. But it will take great effort to release it-much more effort than I can muster alone. It will need the combined help of serious scholars, like Tom Merrill. Merrill accepts, without qualification, my position that law and public policy cannot be analyzed by focusing only on goals and values. Goal choice standing alone cannot determine law and public policy. Each goal is consistent with diametrically opposite outcomes-liability/no liability, rights/no rights-depending on issues of institutional choice. Analysis of institutional choice-analysis of who decides-is essential to the understanding of law and public policy. Furthermore, institutional choice cannot be analyzed by focusing on variations in the characteristics of one institution (single institutional analysis)-the pervasive mode of dealing with institutions in law and public policy analysis. Rather, institutional choice can be effectively approached only by employing comparative institutional analysis. In other words, the choice between alternative decision-making processes must be done by comparing the attributes of the alternative processes in each relevant setting rather than by examining only the characteristics of one alternative.

Two Truths about Socialist Justice: A Comment on Kommers: [Commentary]

Abstract: Talk about former socialist legal systems and their postsocialist paths to reform, and sooner or later, you will find yourself talking about historical guilt. How could one avoid it? The spectacle of judges now themselves being judged for socialist miscarriages of justice, of prosecutors now prosecuted for serving the Party more than the law, forces upon us the question of how it could happen that legal systems that had set out to create a more just and brotherly world ended up by forgetting and betraying their own best hopes. Who is to blame?