Showing papers in "Law & Society Review in 1986"

Perceptual research on general deterrence: A critical review.

Abstract: Recent perceptual studies of general deterrence have been guided by an unnecessarily narrow conception of general deterrence, despite the methodological advances in this type of research. These studies, moreover, have failed to recognize the complexity of the perceptual processes that intervene between the threat or experience of legal sanctions and behavioral outcomes. Consequently, the conclusions drawn from the findings about the process of general deterrence are questionable. This paper critically reviews perceptual studies of general deterrence with a view toward expanding the scope of deterrence theory and stimulating research in new directions. Suggestions are made about the kinds of data and analyses needed to test such theory more adequately.

Law and strategy in the divorce lawyer's office

Abstract: In the research from which this paper is derived, we have observed and tape-recorded approximately 115 lawyer-client conferences. Our observations were made in two sites, one in California and one in Massachusetts. In this paper we take an in-depth look at the nature of lawyer-client discourse by focusing on one conference. We explore three of the most important themes in that discourse. First is the discussion and characterization of the legal system and its major actors. Next is the exploration of the advantages and disadvantages of disposing of disputed issues through negotiation or trial. Finally, the third theme involves the "legal construction of the client," where a lawyer and client discuss rules of relevance that govern the legal process as well as the aspects of the client's experience that are to be the subject of legal inquiry. The paper concludes by exploring the way each of these themes expresses or embodies prevailing legal ideologies and influences the way cases develop and are managed.

The Impacts of Evidence and Extralegal Factors in Jurors' Decisions

Abstract: This study uses data from courtroom observations and posttrial interviews with jurors who served in thirty-eight actual sexual assault trials. It addresses three issues: (1) the effects of several measures of evidence on jurors' judgments of a defendant's guilt, (2) the relative merits of jurors' recollections of the evidence and measures of evidence coded at trial by trained observers, and (3) whether the effects of jurors' attitudes toward crime and their sentiments toward victims and defendants depend on the strength of the evidence, as Kalven and Zeisel (1966) contended. We find that both trialand juror-level measures of evidence adequately capture the effects of evidence, and that neither measure is inherently preferable. Also, while jurors were influenced by extralegal factors, these effects were largely limited to weak cases in which the state presented little hard evidence, which is consistent with Kalven and Zeisel's "liberation hypothesis."

Crowding, Social Control, and Prison Violence: Evidence from the Post-Ruiz Years in Texas

Abstract: In this paper, I examine two explanatory models for prison violence. In the first, the crowding model, violence is said to arise from the cognitive confusion and tension induced by crowded conditions. In the second, the social control model, violence is seen as one among several important control mechanisms deeply rooted in the social order of prison life. While these models are clearly not mutually exclusive, they have taken researchers along quite distinct paths. I consider three forms of violence in the Texas prison system: homicide, inmate-inmate assaults with weapons, and inmate-staff assaults. My results, which support the control model over the crowding model, have several methodological and policy implications.

Equal Employment Opportunity and the Mobilization of Law

Abstract: During the 1960s and 1970s the American social movement for equal employment opportunity (EEO) succeeded in getting Congress and the courts to prohibit discrimination in employment on the basis of race, religion, national origin, and sex. We believe that the effectiveness of EEO laws depends not just upon their passage, however, but also upon their continuing successful mobilization. This is the first article to describe quantitatively the extent and outcomes of the mobilization of EEO laws at the appellate court level. It shows that mobilization is increasing; that the federal government and various interest groups are actively involved in the enforcement process; that much is at stake in many EEO cases; that alleged victims of discrimination win their court cases over half the time; and that reverse discrimination in EEO does not seem to be a serious problem.

American Lawyers in the 1980s: A Profession in Transition

Abstract: The size of the lawyer population in the United States has increased dramatically in the last fifteen years. The rate of growth has substantially exceeded that of the general adult population. With the entry of a large number of young adults into the profession, an increasing proportion of whom are women, the age distribution of the profession has shifted downward and the representation of women among young lawyers has rapidly risen. The absolute number of lawyers working in each employment sector has increased significantly. Although the majority of lawyers continue to engage in the private practice of law, the proportion working in firm settings has grown as the proportion in solo practice has declined. Employment patterns of men and women continue to differ, with both younger and older women less likely to engage in private practice than men and more likely to be engaged in salaried employment. Moreover, even among private practitioners, differences persist as women continue to gravitate to solo practice or employment in large firms and remain underrepresented in intermediate-sized firm practice.

What do Dutch Lawyers actually do in divorce cases

Abstract: This paper summarizes the findings of a four-pronged research project concerning the behavior of Dutch divorce lawyers, in which lawyers, judges, and clients were interviewed and lawyer-client interaction directly observed. In the first part, some preliminary remarks are made on the practical and theoretical importance of the actual behavior of divorce lawyers and the existing body of research on lawyer behavior. These are followed by a thumbnail sketch of Dutch divorce law and procedure and the role of the lawyer. The second part gives an overview of our own research findings. In the third part, I present some reflections on the role of lawyers in divorce cases: (1) the character and special place of 'normative, conflict-oriented intervention' in divorce conflict; (2) lawyers' objective of a 'reasonable divorce' and the nonadversarial approach of lawyers to divorce litigation; (3) lawyers as two-way 'transformation agents' between the client and the law; and (4) what lawyers actually do and do not do.

The Transformation of the American Legal Profession

Abstract: Professions are historically specific institutions for organizing the production and distribution of services. American lawyers constructed the contemporary legal profession between the 1870s and the 1950s by forming local, state, and national bar associations through which they sought, with considerable success, to control the production of and by producers of legal services. In the last two decades, these structures of control have significantly eroded. Lawyers exerted no restraint over the threefold increase in law students since the early 1960s or the changes in the composition of that student body. Restrictive practices taken for granted for half a century have been summarily eliminated by judicial decisions and executive action. To the extent that lawyers have responded by seeking to create new demand, they run the risk of intensifying competition, becoming more dependent on the state, and organizing hitherto atomistic consumers into collectivities that can challenge professional dominance. The image of the profession as a homogeneous collection of independent practitioners is harder to maintain. The proportion of employees is growing, solo practitioners are declining in the face of a hostile economic environment, and units of production are growing in size and becoming more bureaucratic. Divisions of race, gender, age, and class, superimposed over the differentiation of lawyers among structures of practice and the stratification of private practice into two hemispheres, make professional unity increasingly problematic. For similar reasons, self-regulation is being undermined from within while it is challenged from without. These cumulative transformations demand that we reconsider whether it is useful to continue thinking of the practice of law as a profession.

Max Weber's Tragic Modernism and the Study of Law in Society

Abstract: While Max Weber is revered as one of the patron saints of the law and society movement, his views on the nature and limits of sociological studies in law are not fully understood. Using recent analyses of Weber's legal thought (Kronman, 1983) and overall social theory (Alexander, 1983a), the author argues that while Weber set forth the standard, positivist understanding of the sociology of law that influences research to this day, at the same time he critiqued this understanding and in the end despaired that social science could contribute significantly to human emancipation. Arguing that Weber's tragic modernism is an inappropriate guide for law and society studies today, the author suggests an alternative vision in which the sociology of law is seen as part of a pragmatic enterprise of social transformation.

The Relative Significance of Disputing Forum and Dispute Characteristics for Outcome and Compliance

Abstract: In a recent study of small claims mediation and adjudication in an Ontario court, Vidmar introduced the concept of "admitted liability" (1984). He argued that it is this case characteristic and not the forum type that accounts for the greater likelihood of accommodative settlements in mediation than in adjudication, as well as the higher rates of compliance with mediated outcomes. This article reanalyzes some of Vidmar's data in conjunction with both previously reported and new data about small claims cases in Maine. We conclude that the forum type remains a stronger predictor of case outcome and compliance than any case characteristic. However, the data do support Vidmar's alternative hypothesis that case characteristics help specify the relationships between forum type, on the one hand, and outcome and levels of compliance on the other.

The effectiveness of increased police enforcement as a general deterrent

Abstract: The experiment described was directed at seat belt offenders (non-use). It consisted of a media campaign in a first phase, and a second phase of increased enforcement activity by police. Results show that an increased threat of legal punishment, albeit a relatively small fine, reduced the number of customary offenders by a half. (TRRL)

Comment: The Implications of Apology

Abstract: Mention to someone who has lived in Japan even briefly the implications of apology and you are apt to provoke a smile if not an effusion of tales of apologies given or received to expiate both slight and serious offenses. Differences between the use and effect of apology in Japan versus in the United States, Europe, and apparently even other parts of East Asia quickly become familiar to even the most temporary expatriate. Nevertheless, apology has remained one of the few unexplored social phenomena of Japan. It receives scant attention by all but a handful of the burgeoning number of experts-real or imagined-writing on that society, including the Japanese themselves. For the most part the study of the cultural implications of apology has been relegated to dinner table or cocktail party anecdotes. Except for a few scholars concerned with the legal process and law enforcement in Japan, apology has been treated as if an inconsequential, albeit interesting, quirk of Japanese social life. There is no anatomy of apology. Hiroshi Wagatsuma and Arthur Rosett (1986) at last give apology the undivided attention it deserves. It is perhaps not coincidental that it has taken the joint efforts of both an anthropologist and a legal scholar, one Japanese and the other American, to examine the subject. The effects of apology are most clearly manifest in the area of law enforcement. Hence those most sensitive to its importance have been lawyers or social scientists concerned with various facets of this aspect of Japanese society. What the lawyer observes is perhaps best left to the anthropologist or sociologist to explain. In Wagatsuma and Rosett we have an ideal team.

Worker Safety, Law, and Social Change: The Italian Case

Abstract: This paper is a case study of the occupational safety and health provisions of the Italian Workers' Rights Law of 1970, which gave Italian workers the broad right to regulate safety and health conditions at the shop level. The paper traces the political history of this controversial legislation and workers' and employers' responses to it. It then provides evidence that the law was neither the mere "symbolic gesture" nor the tool to "open new horizons" that observers variously predicted. The paper argues that to account for the formulation of this law and its ambiguous impact, the economic and political contradictions into which it was inserted must be placed at the center of analysis. It thus challenges the kind of legal determinism implicit in many analyses of the sociology of law that make the state and legal phenomena the central actors.

Prohibition of Beer in Iceland: An International Test of Symbolic Politics

Abstract: Beer has been prohibited in Iceland since 1915, but wine has been legally imported since 1922, as have all other alcoholic beverages since 1934. Since 1932, ten unsuccessful attempts have been made to repeal the beer prohibition. Using the records of parliamentary debates, newspaper reports, opinion poll results, and interviews, we examine the degree of fit between this legislation and Gusfield's model of linkage between status politics and symbolic legislation (Gusfield, 1955, 1963, 1967). We also identify the type of demographic and economic settings that appear to create an environment that encourages symbolic politics.

Popular Use of Yugoslav Labor Courts and the Contradiction of Social Courts

Abstract: A basic tenet of communist legal theory is that the judicial function should be socialized, that is, executed by laymen rather than by professional judges. Social courts have been created in all of the Eastern European socialist countries to fulfill this mandate. However, the little empirical evidence available on the use of these courts indicates that they are rarely used voluntarily by individuals, but rather are primarily instruments of state social control over individuals. The major exception to this pattern of use is exhibited by the Yugoslav version of social labor courts, the Courts of Associated Labor (hereafter CAL). These courts are heavily used, and over 90 percent of their cases are brought by individual workers. This paper discusses why the CAL are attractive to individual workers, drawing on ethnographic research in the trial CAL in Belgrade and on the political arguments surrounding a 1982 parliamentary effort to "reform" the CAL out of effective existence. The basic conclusion is that the CAL