Showing papers in "Law & Society Review in 1988"

Abstract: This paper examines procedural justice in the context of citizen experiences with the police and courts. It is based on interviews of 652 citizens with recent personal experiences involving those authorities. I will consider two issues: first, whether the justice of the procedures involved influences citizen satisfaction with outcomes and evaluations of legal authorities; and second, how citizens define "fair process" in such settings. The results replicate those of past studies, which found that procedural justice has a major influence on both satisfaction and evaluation. They further suggest that such procedural justice judgments are complex and multifaceted. Seven issues make independent contributions to citizen judgments about whether the legal authorities acted fairly: (1) the degree to which those authorities were motivated to be fair; (2) judgments of their honesty; (3) the degree to which the authorities followed ethical principles of conduct; (4) the extent to which opportunities for representation were provided; (5) the quality of the decisions made; (6) the opportunities for error correction; and (7) whether the authorities behaved in a biased fashion. I found that the meaning of procedural justice varied according to the nature of the situation, not the characteristics of the people involved.

Abstract: Recent research on the determinants of litigant satisfaction has consistently found that abstract evaluations of the justness of case outcomes and of the fairness of the case disposition process contribute significantly to outcome satisfaction, independent of the favorability of the outcome itself. Most such findings have been produced either in laboratory settings using college student subjects or in survey research involving litigation in which the stakes are relatively small. As a consequence, skepticism has been expressed about whether procedural and distributive justice make a difference in serious civil or criminal cases. Reanalyzing data gathered in a previous panel study of defendants charged with felonies in three cities, we argue that the evidence suggests important effects for procedural and distributive fairness, even among a sample of litigants who share few attributes with college student populations and who are involved in litigation in which the stakes are high. The implications of these findings for case disposition processes such as plea bargaining and alternative dispute resolution techniques are discussed.

Abstract: pocket expenses incurred by victims. This approach significantly underestimates the cost of crime to victims by ignoring the pain, suffering, and fear caused by crime. Other studies have attempted to infer the cost of crime by estimating property value differences in high versus low crime areas. However, this approach does not permit one to determine the cost of individual crimes. The purpose of this paper is to estimate the cost of individual crimes by examining the pain, suffering, and fear endured by crime victims. Actual victim injury rates are combined with jury awards in personal injury accident cases to estimate monetary values for pain, suffering, and fear. I combine crime-related death rates with estimates of the value of life to arrive at monetary values for the risk of death. My estimate of the aggregate annual cost of crime to victims of FBI index crimes is $92.6 billion. These estimates are shown to have several direct policy applications.

Abstract: This study replicates and then extends Wilson and Boland's (1978) theory of the deterrent effect of policing on crime rates in American cities by linking it to recent thinking on control of urban disorder and incivilities (Sherman, 1986; Skogan and Maxfield, 1981). The theory posits that police departments with a legalistic style tend to generate policies of proactive patrol (e.g., high traffic citation rate and frequent stops of suspicious or disorderly persons), which in turn may decrease crime rates either (1) indirectly, by increasing the probability of arrest, or (2) directly, by decreasing the crime rate through a deterrent effect regarding perceived threat of social control. We test both these propositions in an examination of robbery rates in 171 American cities in 1980. Overall, the major results suggest that proactive policing has direct inverse effects on aggregate robbery rates, independent of known determinants of crime (e.g., poverty, inequality, region, and family disruption). Moreover, when we demographically disaggregate the robbery rate the direct inverse effect of aggressive policing on robbery is largest for adult offenders and black offenders. We examine the reasons for these findings and discuss their theoretical and policy implications.

Abstract: Over the last century there has been significant growth within our society of practices that distribute costs and benefits to individuals based on statistical knowledge about the population. These actuarial practices like insurance premium setting and standardized testing in educational admissions are successful largely because they allow power to be exercised more effectively and at lower political cost. At the same time they generate ideological effects which have the potential to transform the way individuals understand themselves and their groups. In a 1977 case, Los Angeles Water and Power v. Manhart (435 U.S. 702), the United States Supreme Court considered a challenge to the actuarial use of gender in setting employee benefits. The case and the debates it generated illuminate the danger posed by the ideological effects of actuarial practices to our political culture in general, and to traditionally disempowered classes such as women in particular. At the same time it illustrates the limitation of traditional legal rights discourse as a means of resisting these dangers.

Abstract: Through an analysis of the structure of the community mediation movement in the United States and an ethnography of the practices of mediators in local programs, this paper examines how community mediation is made, and how it is ideologically constituted. The ideology of community mediation is produced through an interplay among three ideological projects or visions of community mediation and organizational models, and by the selection and differential use of mediators to handle cases. We argue that ideologies are formed through the mobilization of symbolic resources by groups promoting different projects. Central to the production of mediation ideology is a struggle over the symbolic resources of community justice and consensual justice. Although various groups propose differing conceptions of community justice, they share a similar commitment to consensual justice, and this similarity is produced through reinterpretations of the same symbols. The ambiguities in community mediation are, it appears, being overtaken by consensus on the nature of the mediation process itself.

Abstract: This paper analyzes the politics of disputing in complaint hearings held by the court clerk in a district criminal court in Massachusetts. By examining struggles over the meaning of local conflicts, it suggests the implications of detailed studies of dispute processing for our understanding of how systems of legal and social meanings are constituted and reproduced. The paper argues that the work of the court, the roles played by court officials, and the meaning of law and of community at particular moments in time are shaped in the interaction of court staff with local citizens. At the same time, it argues that these interactions are constrained by culturally and historically embedded relations of class, ethnicity, and power. Thus the paper suggests how the practice of complaint hearings both reproduces and transforms systemic inequalities and oppositions, and points to the importance of interactive rather than dichotomizing approaches for studying the interconnection and interpenetration of law with society.

Abstract: New York's Juvenile Offender (JO) Law of 1978 is a significant step away from separate systems of justice for adults and juveniles. The law requires that juveniles accused of violent offenses be tried in criminal court, and it provides penalties comparable to those for adults. This paper evaluates the impact of the JO Law on violent juvenile crime rates in New York City and in upstate New York. Analyzing arrest data through the use of an interrupted time series model, we conclude that the JO Law has not been effective in reducing juvenile crime. VioLit summary: OBJECTIVE: The objective of this research by Singer and McDowall was to evaluate the impact of the New York Juvenile Offender Law upon the rates of violent juvenile crime in New York City. METHODOLOGY: The authors employed a quasi-experimental interrupted time series analysis to evaluate the impact of the Juvenile Offender Law by comparing the levels of a time series - monthly juvenile arrests between January 1974 and December 1984 - both before and after an intervention - the introduction of the Juvenile Offender Law in September 1978. Arrest totals were provided by individual jurisdictions to the Federal Bureau of Investigation's Uniform Crime Report, and data were collected for individuals between the ages of 13 and 15 for each of five crimes: homicide, rape, robbery, assault and arson. Analyses were conducted for New York City, for upstate New York and for Philadelphia for each of the five types of crime. Initial data manipulation involved controlling for within - series variation by developing a noise model to account for variations in seasonality, nonstationarity and autocorrelation. For each series, a number of different intervention models were included for consideration: an abrupt and permanent change model, one that involved abrupt but temporary change, and one that included use of a gradual and permanent change. The first model, using abrupt and permanent change, was adopted as the most appropriate for each series. The experimental group consisted of the 13 to 15 year olds in New York City, whilst control groups were formed from arrest data on 16 to 19 year olds in the City, 13 to 15 year olds in Philadelphia, and 13 to 15 year olds and 16 to 19 year olds in upstate New York. FINDINGS/DISCUSSION: The New York City Juvenile Offender Law provided for a shift away from the separate treatment of juveniles and adults, by allowing more punitive measures to be applied to serious young offenders, who would be tried in adult criminal court. The authors found that most of the experimental series were not affected by the intervention period. Homicide and assault arrests in New York City showed no change after the introduction of the Juvenile Offender Law, although arrests did decrease for both crimes in Philadelphia. For upstate New York, homicide rates showed no change, although assault arrest rates increased. Thus the introduction of the Law seemed to have no effect upon homicide or assault rates. Whilst rape and arson arrest rates decreased among 13 to 15 year olds in New York City, they also showed similar drops for 16 to 19 year olds, and they remained stable in upstate New York, with a decrease in arson in Philadelphia. Thus the decrease found among the young group in the City might just have been part of a general trend that was occurring amongst other groups in other areas as well, with no effect of the Law upon either rape or arson. Robbery arrests among 13 to 15 year olds in New York City and in upstate New York increased insignificantly after the Juvenile Offender Law had been introduced, although in two of the control series - the Philadelphia group and the 16 to 19 year olds in upstate New York - arrest rates for robbery significantly increased. Although the Law did not cause a decrease in robberies in the target group, it might have prevented an increase in arrest rates. However, differences between the groups were small, and the effectiveness of the Law in preventing an increase was seen by the authors as an implausible argument. The authors concluded that overall, their findings strongly supported the conclusion that the Juvenile Offender Law had no effect on rates of juvenile crime. They offer three explanations for the failure of the Law to reduce juvenile crime. Firstly, the Law might have been too weak to produce any significant effect upon crime rates, by not increasing the risk of punishment. However, the number of juveniles incarcerated since the Law came into effect had more than tripled, so this explanation seemed implausible to the authors - the risk of punishment had sufficiently increased. A second explanation offered by the authors was that the Juvenile Offender Law had no effect upon crime rates because youth were not responsive to the provisions of the Law, by not being deterred by the increase in severity and certainty of punishment. A last explanation was that the amount of time that had passed since the implementation of the Law was not enough to evaluate accurately its effectiveness in reducing crime rates. EVALUATION: The authors present a sophisticated and interesting analysis of the influence of the Juvenile Offender Law upon crime rates in New York City. The use of time series analysis, and the inclusion of a number of control groups, allowed for the comparison of results in the experimental area to other general trends that were occurring, and threats to internal validity, such as history and instrumentation, were controlled for as much as possible. The primary drawback with this research is its reliance upon official data as its source - such official records have been shown to substantially underestimate the true levels of crime that are taking place within the community, and are affected by arrest policies and practices, visibility of crimes, police funding, and many other uncontrolled factors. Actual numbers of arrests would have been an interesting additional piece of information, as would have separate analyses for males and females, anglos and non-whites, and individuals from different socio-economic status groups, in order to determine if there existed any differential effect of the Juvenile Offender Law upon these various groups. A more thorough discussion of the implications of these findings for future policy planning would also have been helpful. Even with some methodological drawbacks, the authors have still presented an excellent piece of well-written research which could help to inform policy and prevention planning in the years ahead. (CSPV Abstract - Copyright © 1992-2007 by the Center for the Study and Prevention of Violence, Institute of Behavioral Science, Regents of the University of Colorado) N1 - Call Number: F-113, AB-113 KW - 1970s KW - 1980s KW - Judicial Transfer-Waiver KW - Juvenile In Adult Court KW - Juvenile In Justice System KW - New York KW - Criminal Justice System KW - Violence Intervention KW - Juvenile Offender KW - Juvenile Violence KW - Homicide Offender KW - Homicide Rates KW - Rape Offender KW - Rape Rates KW - Sexual Assault Rates KW - Sexual Assault Offender KW - Violence Against Women KW - Robbery Rates KW - Robbery Offender KW - Arson Rates KW - Arson Offender KW - Physical Assault Offender KW - Physical Assault Rates KW - Legislation Effects KW - Justice System Intervention KW - Intervention Effectiveness KW - Intervention Program KW - Intervention Evaluation KW - Program Effectiveness KW - Program Evaluation KW - Juvenile Crime KW - Juvenile Delinquency KW - Delinquency Intervention KW - Crime Intervention Language: en

Abstract: Merry's comprehensive review shows us how studies of plural normative orderings during the past twenty-five years have greatly enriched our understanding of the complexity of normative structures, their interdependence and the ways in which these structures are involved in human agency. At the same time her review illustrates how little conceptual progress has been made. We do not have a more acute understanding nor a refined conceptual usage of the terms law, normative order, or pluralism. In a way this is reassuring. It tells us that stimulating new research and methodological approaches can be developed without giving much thought to these conceptual problems. The best historical writings in legal pluralism in colonial societies, such as the Dutch studies on Indonesian societies, did not excessively ponder whether the local normative systems should or should not be called law. The neo-classicists of legal pluralism such as Macaulay (1963) and Moore (1973) explicitly did not present their data as legal pluralism, and when Galanter (1981) tells us about indigenous law in western societies he does not make much fuss about it. Yet I do think that more conceptual clarity is desirable. Legalistic ideology has not yet been fully banned from the research methodology of sociolegal studies. Ideological bias is not barred from methodology by simply calling non-state normative systems law. Most studies in legal or normative pluralism, whatever their definition of law may be, still tend to recognize only a limited number of contexts in which the reproduction of elements from the legal system is really a legal process. Typically, it is judges (or other representatives of the state, by preference of the judicial apparatus), or more generally legal authorities, whose activity make the process legal. Reproduction of state law by ordinary citizens is not considered legal. This thinking is deeply ingrained in the methodology of sociolegal scholars (K. von Benda-Beckmann 1984: 103-107); it also colors the analyses of the "creation of customary law," to which Merry refers (F. von Benda-Beckmann, 1984). Descriptions of normative systems should include their ideologies, their claims to exclusive validity and to the monopoly of legitimate power, etc., as empirical phenomena. It is here that we encounter the ideology of legal centralism as the folk system of state officials and legal scientists. We may find similar legal ideologies in religious law or folk legal systems. But we may also find situa-

Abstract: In this paper we argue that differences in the conceptualization of individual actors in networks provide the most parsimonious explanation for differences that occur between American and Japanese views of sanctions and between actors in different role relationships within each society. Our empirical tests drew on respondents' hypothetical punishment choices and punishment rationales in surveys of Detroit, Michigan, and Yokohama and Kanazawa, Japan. As predicted, American views of punishments for everyday misdeeds were more likely to favor isolation or retribution and American rationales for imprisonment were significantly more retributive than in Japan. Within each culture, offenses between intimates were least likely to evoke isolative or retributive punishments whereas offenses between strangers were most likely to do so. We conclude by considering alternatives to our structuralist explanation of these findings and by suggesting some implications of legal culture for dispute resolution in the United States versus Japan.

Abstract: Drawing on C. Wright Mills' analysis of vocabularies of motive, this paper examines the ways lawyers and clients interpret and give meaning to the social behavior involved in the legal process of divorce. Based on observation of 115 law office conferences, the paper describes discussions between lawyers and clients concerning marriage failure, problems in the legal process, and planning strategy. It shows how lawyers and clients bring different agendas and views of the social world to these conversations. Those differences are considered part of the context for understanding the way professional authority is exercised and resisted. Clients reconstruct the past and explain their own behavior as well as the actions of their spouses. Lawyers avoid being drawn into that reconstruction. Their interpretive work explains the way the divorce process works and how it shapes the actions of divorcing spouses. The paper analyzes the predicaments created by these interpretations of reality and the consequences that flow from them.

Abstract: Recent interest in oral language and law (Atkinson & Drew, 1979; Danet, 1980; Levi, 1985; O’Barr, 1982; Pomerantz & Atkinson, 1984), repeating a characteristic of earlier research on criminal justice (cf. Newman, 1966:xiv, Rosett & Cressey, 1976), gives disproportionate attention to trials and formal proceedings rather than informal processes such as plea bargaining, even though it is in the give-and-take of the more casual setting that practitioners settle the bulk of cases coming before the courts. To be specific, the “explosion” of ethnographic research on plea bargaining during the last 15 years (Maynard, 1984:1) makes it abundantly clear that attorneys often present “facts” by telling stories about “what happened.” However, although investigators have explored various dimensions of storytelling in the courtroom (Bennett & Feldman, 1981; O’Barr & Conley, 1985), narratives in the negotiational arena are unstudied and unexplicated.

Abstract: In this paper we present results from a study of small claims litigants' expectations about the civil justice system. Interviews with plaintiffs at the time they file their cases reveal that many people come to court with profound misunderstandings about the authority of civil courts as well as the procedural and evidentiary burdens that the civil justice system imposes. These findings, based on the empirical investigation of litigants' beliefs about and understandings of civil justice, complement experimental studies of procedural justice conducted over the past two decades. We find that litigants are at least as concerned with issues of process as they are with the substantive questions that make up their cases. Yet litigants' preconceptions of procedure are frequently at variance with what the law requires and what will happen in the legal process. Such differences suggest that litigants' expectations and understandings deserve attention in the study of their attitudes toward the legal process.

Abstract: This study compares the language in which South African and United States law represents the histories of indigenous peoples. South African political and legal language has linked denial of indigenous peoples' history with denial of rights to property. The language of the law in the United States recognizes prior history and prior possessory claims to land, although in the past this recognition did not stop the decimation of Native Americans. The contrast between the uses of history in the laws of two nations reveals how ideologies, language, and the law are intertwined in the determination of indigenous peoples' property rights.

Abstract: Despite the widespread perception that lawyers exercise considerable influence over national policy making in the United States, their participation in the process has previously received little systematic empirical analysis. Based on a variety of evidence gathered in interviews with more than eight hundred Washington representatives, including data on their work, careers, contacts with government agencies, networks of acquaintance, and relationships with clients, we argue that lawyers are not as prevalent, active, or influential in national policy making as the popular image suggests. Rather, the findings indicate that lawyers occupy a relatively specialized niche in the system of interest representation, one that allows them to command substantial economic rewards and to maintain a measure of independence and autonomy in their work, but that limits their influence in policy formation.

Abstract: Scholarly and media accounts have portrayed the Reagan administration as strongly committed to the selection of judges who are ideologically in tune with the president. Interviews with key congressional participants indicate that Reagan has received substantial home-state support for his ideological selection criteria. These findings lead to the prediction that Reagan judges on the lower federal courts will be substantially less supportive of criminal defendants than will Nixon or Carter appointees. Analysis of each appointment cohort's criminal justice decisions confirms this expectation for the district courts and courts of appeals. Indeed, the degree of polarization between the Reagan and Carter cohorts is unprecedented. However, this difference was due to the unexpectedly high support for criminal defendants exhibited by Carter appointees as well as the predicted low support provided by Reagan judges.

Abstract: This article explores the connections between the interpretive and comparative dimensions of ideology by analyzing ethnographic data from an American town. The town is undergoing a rapid process of urbanization, and townspeople are absorbed in the analysis of the changes around them and their town's prospects as a community. The article compares interview data and courtroom observations in which local understandings are shown to be constituted in pervasive cultural distinctions: past and future, insiders and outsiders, harmony and conflict, gender, and various forms of family life shape local views of change and conflict. The conclusion relates an analysis of the symbolic terms in which these distinctions are expressed to general issues of the nature of ideologies and their truth claims.

Abstract: This chapter examines conceptions of common sense and consensus, and the relation of knowledge and ignorance in the methodological literature. Shari'a discourse represents a specialized subset of formal Arabic usage in the same way that jurisprudence is a specialized subset of all knowledge. A man from a rural village makes his way along stone paved alleys and through the central market street to the shari'a judge's house near the Great Mosque. Uttering an initial greeting at the door, the man enters and advances across the room toward the seated judge, and then abruptly stoops to kiss the judge's hand and knee. The fingers of the old judge's hands are long and smooth, accustomed to the discipline of the pen. The chapter reviews egalitarian and hierarchical themes in the applied literature. The analytic move underway from culture to ideology can be developed, in short, by a further move from common sense to hegemony.

Abstract: equality that masks the actual determinants of social life by rendering them into "private rights." Finally, in the course of historical events such as labor struggles, the public/private dichotomy defines boundaries of political and legal action. The public/ private distinction, while it originates in patterns of political and economic domination, can have emancipatory or repressive conse-

Abstract: Since both law and society and law and economics apply social science concepts and methods to the problems of the legal system, one might think that the two disciplines are natural allies. Indeed, with the largely empirical focus of law and society and the strong emphasis on theory in law and economics, the benefits from collaboration between the two would seem to be particularly great. Perhaps surprisingly, though, they have often been at odds with one another, with both groups willing to concede only grudgingly that the other has made useful contributions to the study of legal and public policy issues. The hostility is reflected in the fact that, at recent law and society meetings, very few devotees of law and economics have been in attendance, either as speakers or as members of the audience. What then can explain this chill?

Abstract: Preadjudicatory detention is used for about one-third of all juvenile offenders (Poulin et al., 1980). A protectionist purpose is often held to justify both the need for discretionary decision making in these cases and the absence of due process protections. In this study, we have included measures of juvenile offenders' socioemotional status with indicators of their legal status and social background in a log-linear analysis of detention decisions in New Jersey. The results suggest that protectionism is a major influence on these decisions and is in turn related to the impact of gender.

Abstract: When Kermit requested that I write an essay for this Review, an ambiguity in his letter led me to inquire whether he wanted me to write about legal history written in the twentieth century or legal history written of the twentieth century.' Unraveling that ambiguity had the queer effect of deflecting my attention from the fact that I was in the process of agreeing to write about a subject that seemed to me to be close to nonexistent. To check out that

Abstract: In his discussion of modern society,1 Habermas begins with Weber's thesis of a universal rationalization process within which the rationalization of law plays a central part. Thus his starting point is the classical thesis of the formal rationalization of law as advanced by Weber (1960; Schluchter, 1979). Habermas tries to show that Weber's theorizing is deficient because he underestimates the specific historical role of the materialization of law (1981, Vol. 1: 332). Additionally, such theorizing does not allow us an adequate grasp of some recent developments that proceduralize law (Teubner, 1983, 1984; Eder, 1986). From the perspective of Weber's theory of formal rationalization, the processes that materialize and proceduralize law appear to be aberrations from the normal path of modern legal development. Habermas suggests that, far from being deficient, these processes are necessary forms of law in the process of modernization. The appearance of deficiency proceeds from Weber's attempt to separate morality from law and to conceptuali7e a moral-free law, a corollary of Weber's plea for a value-free science. Habermas concludes that formal rationalization is an inadequate model of law operating in the modern welfare state. Thus a new model is in order. In addition to questioning Weber's normative rationality in regard to the materialization and proceduralization of law, Habermas also takes a stand against Luhmann (Habermas 1987). Luhmann's sociology of law attempts to continue Weber's theoretical project of stripping morality from law. The amorality of law is to be continued at the level of the welfare state (Luhmann 1983). Thus Luhmann argues that the function of law is not to realize justice but to try to regulate the environment of the legal system by restricting itself to reproducing the identity of the legal system.

Abstract: In this paper we investigate a largely unrecognized but nevertheless important chapter in the legal and political history of Soviet Marxism: the simultaneously coherent and contradictory theoretical tendencies in Lenin's pronouncements about law, legality, and delegali7ation ("the withering away of law") during the socialist transition. We identify and discuss these tendencies as they unfold against the historical background of the Russian Revolution. We argue that Lenin's political and theoretical objections to legal formalism greatly contributed to the tragic neglect of constitutional mechanisms needed to secure the radical democratic motives of the revolutionary process.

Abstract: economic approach to law, emphasizing the utility of the Coase Theorem and the political neutrality of economics. I would not use quite the terms Donohue does to describe myself, but I cannot believe that the readers of this journal would be interested in what I have to say on that subject, so I shall hold my peace. I would not emphasize the Coase Theorem as much as Donohue does. The essential relevance of economics to law lies not in a